On 16 July 1991 Sun World Inc made an application for the grant of Plant Variety Rights under the now repealed Plant Variety Rights Act 1987. The application related to a grapevine variety generally known as ‘Sugarone’.

Under Section 14 of the PVR Act the grant was refused, because the grapevines had been sold, with the authorisation of the breeder, more than six years before the making of the application. Although this case involved interpretation of “sale” under Sections 3 and 14 of the Plant Variety Rights Act 1987 it is still applicable to Sections 3 and 43 of the Plant Breeder's Rights Act 1994.

The Single Judge of the Federal Court affirmed the Registrar's decision and awarded costs. Sun World appealed the decision. The Full Bench of the Federal Court confirmed that the word “sell” in the context of PVR/PBR has a wide meaning, and the Appeal was dismissed.

	•	where the vines of the variety are exchanged as an element in a larger transaction (for example when the transaction also includes fruit marketing rights) that there is no sale, and
	•	as restrictions have been placed on the sale of fruit and further distribution of vines, that the general property of the vines has not been transferred, and
	•	the price paid for the vines was not the real “commercial value” therefore no sale had occurred, and
	•	while documents are entitled “Sales of Plants” and the language is that of sale and purchase, the substance of the documents extends to other than that of the transfer of vines and therefore cannot be considered as conclusive evidence of sale.

The Federal Court rejected the notion that for the purposes of the Act “sale” could only be in terms of the exchange of goods for money. Also the court found that the “sale” of ‘Sugarone’ vines was not invalidated by the fact that the sale agreements placed additional restrictions on the way the vines could be used. The definition of sale was taken to include ‘letting on hire or exchanging by way of barter’.

The Sun World case confirms that the supply of propagating or harvested material in exchange for money, goods, by way of letting or barter (and barter could include services) constitutes a sale under the PBR Act, provided that it is done with the consent of the breeder. It is immaterial whether or not the exchange occurs privately, to the public, to wholesalers, in small numbers or below market value. In certain circumstances, some specific activities relating to the exchange/disposal of materials derived from multiplying and evaluating the variety are excluded from consideration as a sale - Sub sections 43(7A)(7B) and (7C) of the Plant Breeder's Rights Act 1994.

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