Case: Sun Valley Dried Fruit Pty Ltd v Toea &amp; Rosenlund (BS 9418/2004) 
Outcome: cited
Mr Rosenlund considered that it would have been difficult or impossible for Toea to comply with the clauses relating to the expulsion of stallholders who infringed trademarks. He also considered that employees did not have the experience or expertise necessary in order to recognize counterfeit products or to confirm that a product was counterfeit even if a representative of the applicant so asserted. Mr Rosenlund was also concerned that the deed might oblige him to expel a tenant who had been a good tenant for many years and whose livelihood was at stake. The decision of White J in Sun Valley Dried Fruit Pty Ltd v Toea &amp; Rosenlund (BS 9418/2004) caused at least part of Mr Rosenlund's concern. In that case, Sun Valley had sought to restrain Toea from terminating a licence to occupy and applied for an interlocutory injunction pending trial. The decision concerned only the application for interlocutory relief and is not authority for any particular view of the nature of the relationship between Toea and stallholders. Nonetheless it demonstrates the difficulties inherent in terminating such an arrangement. One can well understand that Mr Rosenlund might feel that it would be unwise to commit Toea to immediate expulsion of a stallholder if he was not sure that it would be able to honour such a commitment. It might also be thought somewhat harsh that Toea should be obliged to act upon the applicant's opinion as to whether there had been an infringement, rather than upon its own view of the matter, and that it should retain no discretion to consider other circumstances in deciding how to deal with a particular infringement. 113 On Saturday 26 February and Sunday 27 February 2005, Mr Rosenlund and two members of his staff walked around the Market in order to see whether any Louis Vuitton products were being sold. They found none. On 3 March 2005 Mr Rosenlund wrote to the solicitors, saying that he would not sign the deed of co-operation and outlining the steps which he had taken on the previous weekend to detect any further infringements. He indicated that he would continue to take these steps. 114 On 5 May 2005 the solicitors for the applicant again wrote to Mr Rosenlund. They set out the previous history of dealings between the parties and asserted that Ms Gallop and Mr Alcock had again, on 11 February 2004, 17 February 2004 and 24 April 2005, been found selling infringing goods. The solicitors indicated that they considered that Mr Rosenlund was not co-operating with the applicant and continued: 'Your company's conduct in allowing stall-holders at Carrara Market to deal in Infringing Goods is likely to constitute an involvement by your company, and its officers, as joint tortfeasor with those stall-holders of infringement of the Louis Vuitton trademark. Our client has previously indicated in our letter dated 15 January 2004, and in a Deed of Co-operation that was sent to you on 10 February 2005, that it is more than willing to work with your company to prevent the unlawful sale of Infringing Goods that is being carried on at Carrara Market. However, in your letter dated 3 March 2005, your company declined to sign our Deed of Co-operation. We understand from your letter dated 3 March 2005, that so-called " permanent stalls" may have been bought for $50,000, while the Carrara website states that casual stall-holders pay $38.50 to hire for a stall for one day. Clearly, your company is obtaining significant financial benefits from stall-holders at Carrara Market. In our client's view, given your company's control over the Carrara Market, it appears that your company is sanctioning and also benefiting financially from stall-holders that sell Infringing Goods. Our client considers that the only measures that will be adequate to prevent the ongoing infringements at Carrara Market are to take appropriate action against the stall-holders identified in Schedule C to G. Accordingly, our client demands that your company: (a) expel any casual stall-holders identified in Schedule C to G from the Carrara Market by 4 pm on Sunday 8 May 2005 and prohibit them from hiring casual stalls at Carrara Market in the future; (b) take whatever steps that you are legally able to in order to stop "permanent stall-holders" identified in Schedule C to G from selling Infringing Goods at the Carrara Market, which may mean giving reasonable notice to them that you will evict them within one month for breach of the terms on which they hold a permanent stall; and (c) inform us by 4.00 pm on Friday 12 May of compliance with the demands contained in this letter. If these demands are not fully satisfied by the dates referred to, we expect that our client will commence Federal Court proceedings against your company and any relevant officers of your company (including but not limited to directors and employees personally involved) without further notice. In any such Federal Court proceedings our client will seek both interlocutory and permanent injunctions against your company, damages or an account of profits, and its costs.'