| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : CROP CANOPIES PTY LTD -v- SONA TOUTIKIAN AND HAROTIANE KIRAP TOUTIKIAN [2003] WADC 110 CORAM : LA JACKSON DCJ HEARD : 5-8 MAY 2003 DELIVERED : 23 MAY 2003 FILE NO/S : CIV 4016 of 1999 BETWEEN : CROP CANOPIES PTY LTD Plaintiff
AND
SONA TOUTIKIAN AND HAROTIANE KIRAP TOUTIKIAN
Defendants
Catchwords: Contract - Claim for unpaid cost of construction of a bird canopy to protect grapes - Counterclaim for damages when canopy collapsed
Legislation: Nil
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Result:
Claim allowed and counterclaim partially allowed. Net judgment for the plaintiff for $1,589 Representation:
Counsel:
Plaintiff : Mr M J Feutrill
Defendants : Mr R K F Davis
Solicitors:
Plaintiff : Beere May & Meyer
Defendants : Hotchkin Hanly
Case(s) referred to in judgment(s):
J J Savage & Sons Pty Ltd v Blakney (1970) 119 CLR 435
Ross v Allis-Chalmers Australia Pty Ltd (1980) 32 ALR 561
Watts v Turpin (1999) 21 WAR 402
Case(s) also cited:
Nil
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Introduction 1 The plaintiff's claim is for the agreed cost of erecting a netting crop canopy. The defendants have counterclaimed for damages due to the failure of the canopy. The plaintiff carries on the business of the erection of netting canopies to protect crops. The defendants have a vineyard in Gidgegannup. 2 A brief description of the nature of and method of construction of a crop canopy is appropriate at this stage. 3 Crop canopies are erected for a number of purposes but relevantly in the Gidgegannup area, as I understand it, are for protection against birds. Crop canopies can also be erected to protect crops from weather conditions such as wind or hail. 4 A crop canopy consists of a netting of the appropriate size to protect the crop. The netting is held up by wire ropes which are attached to poles to suspend both the wire ropes and the netting above the crop. 5 The method of construction described by Mark Turnham, a director of the plaintiff, was given and it was not suggested that this was not the normal way of construction. The poles are about five metres long and can be constructed of jarrah or of treated pine. Treated pine poles are not as strong as jarrah poles which are therefore preferred. The poles are erected in a grid pattern usually 20-25 m apart. The poles around the edge or perimeter of the area to be covered are sunk into the ground about 800-900 mm. The other poles are sunk to a depth of 600-700 mm. I presume mechanical equipment such as a posthole digger is used for that purpose. When the poles are erected the ground is compacted to hold the poles in place. 6 Anchor points are placed at each end of each row of poles. They consist of large logs buried at right angles to the rows about two metres into the ground. A large galvanised eye is bolted into the log and extends to ground level. The anchor points are buried in the ground approximately four metres away from the base of each perimeter pole. The perimeter poles are connected to the anchor points by means of a wire guy rope which is attached to the anchor point and to the top of the pole. Wires are then affixed along the lines of the poles and the whole structure tensioned by use of winches. When the structure is tensioned netting of varying widths up to about 20 m is pulled across the wires. The netting is
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connected, attached to the wires and to the ground. The netting can either be at an angle of 45 degrees at the perimeter to follow the guy ropes or can be vertical. The netting is to be attached to the ground so as to prevent birds from getting into the structure. A bird proof gate is included. 7 In about 1995 the defendants constructed a crop canopy to cover a vineyard of approximately one hectare. At some stage a decision was made to extend the vineyard by planting another hectare or thereabouts of grapes. The defendants erected poles and anchor points but did not complete the netting.
The contract 8 Late November or early December 1998 the first defendant (Mrs Toutikian) telephoned the plaintiff for the purpose of getting a quote for doing the work of completing the crop canopy. She spoke to Turnham who agreed to attend at the defendant's property in Gidgegannup. The date of his attendance is uncertain but it is of no significance. 9 There are conflicts of evidence between Mrs Toutikian and Turnham as to the discussions between them and accordingly as to the terms of the contract. I have to say that I was not impressed by either as witnesses. Turnham was very vague and imprecise in the evidence he gave and it is difficult to accept with precision the detail of his evidence as to the formation of the contract. In addition to that, shortly before trial the plaintiffs applied to amend its defence to counterclaim alleging advice given to the defendants that additional poles needed to be installed. If that had occurred that would have been an important limb of the plaintiff's defence to the counterclaim. The late amendment causes me to have some doubts as to Turnham's reliability. Graham Stafford, an engineer engaged by the defendant, said he had asked Turnham for his calculations with respect to the construction of the crop canopy. Turnham denies any such conversation. It is clear Stafford would logically have sought those calculations. His request for them is referred to in contemporaneous correspondence. I prefer Stafford's evidence to Turnham's. This casts further doubt on Turnham's credibility as a witness. 10 Mrs Toutikian's evidence was given in a rather forceful manner which did not give a good impression. More importantly, like the plaintiff, the defendants made a very late amendment to their counterclaim with respect to the calculation of the loss of production in 1999 increasing it from $50,000 to $120,572.50. The calculation upon which that
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amended counterclaim was made was based on material known to the defendants since 1999 and the amendment raised doubts as to Mrs Toutikian's veracity. 11 Doing the best I can, in light of my comments about the reliability of the evidence of those who entered into the contract on behalf of the plaintiff and defendants, I make the following findings. 12 Turnham attended the defendants' property and inspected the area upon which the crop canopy was to be erected. There was an existing crop canopy over an older vineyard, and the poles for the new area were already erected. In substance, along the north south line the poles were at 35 m centres and along the east west line were at 20 m centres. Those centres are not in accordance with the usual practice followed by the plaintiff which I accept to be a reasonable standard in the industry. Turnham says he advised Mrs Toutikian that the gaps were too wide and that additional poles should be placed between the poles 35 m apart and that this would need to be done for both the old area and the new area. He says Mrs Toutikian's response was that she would not do that because she wanted a cheap job. Mrs Toutikian denies any such conversation took place. Because the layout was not standard, I think it most likely that Turnham did advise Mrs Toutikian that the poles were further apart than was standard but I am not satisfied that he gave advice in the manner he described by which it would be implied that the defendants were going to take the risk of a non-standard construction. Although I accept Turnham did tell Mrs Toutikian about the non-standard placement, I am not satisfied he made the recommendation he now alleges which was the subject of the late amendment to the pleadings. 13 It was argued the plaintiff should have strengthened the structure to compensate for the 35 metre spacings. No evidence was given as to how that could have been achieved. In any event, on the findings I later make, that was not the cause of the failure of the crop canopy. 14 It is not in dispute that it was agreed the perimeter poles in the new area which were treated pine were to be replaced by jarrah poles. It is not in dispute that Turnham advised Mrs Toutikian that should occur because jarrah poles were stronger and pine poles were inadequate around the perimeter. 15 Mrs Toutikian claims the agreement between the parties was to build a structure which was cyclone proof. She says Turnham promised that it would be cyclone proof and on the basis of that promise she, on behalf of
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the defendants, entered into the contract. Turnham denies there was any reference to cyclones. I accept Mrs Toutikian's evidence to the extent that I accept there was a reference to cyclones. It may well be that Turnham, boasting about the quality of his structures, said they would withstand cyclones. But cyclones do not happen at Gidgegannup. It cannot have been a matter of any significance to Mrs Toutikian to have a structure of that precise quality. Certainly, the south west land division of Western Australia is known for strong winds and the structure should have been built to withstand such winds but the notion that it needed to be cyclone proof so that it was a factor that in any way could have impacted upon Mrs Toutikian's decision to enter into the contract is not a reasonable proposition and is not accepted. It is a bit like Mrs Toutikian's claim that Turnham said if there was to be any failure it would be in the netting and that the basic structure would last for ever. The concept of lasting for ever is clearly not meant to be taken literally so that whilst Turnham may well have used such an expression it was not in any sensible way promissory. See J J Savage & Sons Pty Ltd v Blakney (1970) 119 CLR 435; Ross v Allis-Chalmers Australia Pty Ltd (1980) 32 ALR 561. 16 The quoted cost of construction was $31,890. 17 Mrs Toutikian says Turnham worked that price out at the time he was on the defendants' property and confirmed it in a quotation dated 15 December 1998. Turnham denies having advised Mrs Toutikian of the price during the site visit because he said he needed to work it out. I note that the written quotation (Exhibit 3) makes a reference to some reduction in the cost per square metre because the plaintiff's men were in the area and that tends to support Turnham's evidence that no price was given on site. However, nothing turns on the difference and I need make no specific finding with respect to it. 18 Mrs Toutikian said that on site she advised Turnham that the price would need to be paid in two instalments, namely, $20,000 upon completion and the balance after harvesting of the grapes which would have been in the first quarter of 1999. Turnham denies there was any such agreement. He says there was a discussion about payment by instalments but that occurred towards the end of the construction. He said Mrs Toutikian telephoned him and asked him to reduce the price to $25,000. He says he refused and she then advised that she could not afford to pay the whole of the purchase price and could only pay him $25,000 at the completion of the contract and the balance after harvest. He says he agreed.
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19 There is a difference as to whether it was $20,000 or $25,000 to be paid upon completion but nothing turns on the resolution of that difference. I would have thought it most likely that if payment was other than to be for cash upon completion, the quotation would have made some reference to it. It did not. Accordingly, I am inclined to prefer Turnham's version of the arrangement for payment rather than Mrs Toutikian's. However, once again, nothing turns on that finding.
20 What is not in dispute is that the cost of erection was $31,890. None of that has been paid by the defendants to the plaintiff. 21 The plaintiff claims there was an express agreement to exclude any warranty with respect to the structure. It is not in dispute that Mrs Toutikian was advised that the manufacturer of the netting offered a 10 year warranty on ultra violet degradation of the netting. Turnham said Mrs Toutikian enquired as to any warranties and was advised that the only warranty was that offered by the netting manufacturer. The argument is that any other warranty is therefore excluded. I do not accept that argument. Indeed, Turnham in cross-examination, rightly, in my view, conceded that his understanding was that if there was a defect to the structure caused by any fault of the plaintiff's employees then the plaintiff would rectify it.
The construction 22 The construction of the crop canopy took about three weeks. Employees of the plaintiff who did the work were not called to give evidence. Turnham did not attend on site during the course of construction or at the conclusion of it. There is therefore no direct evidence as to the manner in which the work was performed and whether the standards described by Turnham were adhered to. 23 The perimeter poles were replaced with jarrah poles. There is no direct evidence as to the depth to which they were sunk. Turnham said they were normally sunk to a depth of 800-900 mm. Evidence by Michael Anthony Young, an engineer called by the defendant, was that they were only sunk 500-600 mm into the ground. Exhibit 26, par 2.3.2. Although there was argument that Young's evidence should not be accepted, it is the best evidence and I do accept it. 24 Turnham described the method of compacting the soil. He said when the poles were placed in the holes the soil was put back in stages and compacted by hand. Young accepted this was a reasonable method of
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compaction. He said the soil should be damp. That is not what Turnham said was the plaintiff's system, but the difference was not explored. Turnham was cross-examined as to mechanical compacting, but in the light of Young's opinion that does not seem essential. However no evidence was given as to what in fact happened to the perimeter poles on this job. They may have been compacted using the usual method or it might not have been done as well as would have been the plaintiff's usual practice. 25 The structure was covered in bird netting. Two sides had windbreak side curtain. The side curtain on the north side was fixed to the guy wires at 45 degrees. The side curtain on the west side was vertical. 26 The work was completed on about 21 January 2000.
The storm 27 On the night of 22/23 January 2000 there was a storm in Gidgegannup. Meteorological evidence as to the wind strengths at the two nearest Bureau of Meteorology sites, namely Pearce Air Base and Mt Helena was tendered but John Norman Cramb, a meteorologist, said this did not necessarily impact upon the weather at Gidgegannup which was about 23 or 24 km away from each of those stations. The second defendant gave evidence as to the ferocity of the storm. Whilst I accept that, it is of its nature relatively imprecise. 28 A dead tree was blown over. Sheets of corrugated iron appear to have been blown about. The netting in the old area was ripped. From all of this I accept that there was a severe storm at Gidgegannup that night. 29 If it had been argued by the plaintiff that the storm was of such extraordinary ferocity that the crop canopy, despite having been properly constructed was damaged, and accordingly the damage was an act of God for which it could not be held responsible, it would have failed. The evidence as to the nature of the storm would not have been sufficient.
Damage to the crop canopy 30 The effect of the storm on the crop canopy was nothing short of devastating. Poles were ripped from the ground, wires were snapped, poles were leant over and most of the netting, both on the new area and the old area, was shredded.
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31 Graham Stafford, the engineer engaged by the defendants, inspected the site on 29 January 1999. He prepared a report which included a grid pattern of the area showing the damage he observed. Along the northern boundary some guide wires between the anchors and a number of the poles were broke. Evidence of Dr Paul Townend, a metallurgist, was that these breaks were due to tensile failure, that is by stretching, rather than being a shear fracture caused by some impact. Although Dr Townend's opinion would have been made more certain by an electron microscope examination of the actual broken cables, which was not done, I accept his opinion as to the nature of the breaking of the cables.
32 Stafford considered the first cable on the western end of the north side broke first. He then considered a zipper effect causing breakages to the next two guide wires on the north side and the damage to a number of the poles would have occurred. It was put to Stafford that the first breakage could either have been in the second or third lines on the north side of the structure. He maintained his opinion although he did concede it was possible. 33 The reason it is of some significance is because Mark Brendon Perrella, an engineer called by the plaintiff constructed a computer model of the structure and came to the view that the second and third guy ropes on the northern side from the western end were those likely to be under the most strain if a strong northerly wind occurred. The proposition is that if those wires failed resulting in the failure of the structure, it would not be as a result of any fault of the plaintiff but rather because the wires failed due to some other cause. 34 I think at the end of the day nothing turns on the difference. The second defendant described the wind as coming from the north west. It is therefore likely that marginally there was more stress on the north west corner than on the northern side. But in any event I do not consider the failure of the structure to have been caused by a breakage of the guide wires independently of any other occurrence within the structure. 35 Young said that in his opinion the reason for the breakage of the guide wire in the north west corner was because the poles had not been adequately founded. In Exhibit 26 at par 2.3.2 Young said: "When a strong wind blew the structure had some dynamics. It is not rigid in the sense that concrete might be. The netting will obviously move in a high wind no matter how well it is
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attached. The wires no matter how well tensioned will have some flexibility. Young said that in his opinion the first failure that occurred was for one or more of the poles to have moved laterally thus creating an additional strain on the guide wires and it was this additional strain that caused them to give way. Perrella did not agree. His opinion was that the structure was sound and that the proper explanation for the breaking of the guide wires was either a fault in the wires themselves or impact with some flying object or perhaps some impact damage during ordinary work at the vineyard. Stafford while not referring to lateral movement said the poles would have been subject to both lateral and upward forces. 36 I prefer Young's opinion to that of Perrella. I do so for a number of reasons. Young is an engineer with more than 25 years practical experience. He visited the site on a number of occasions. Perrella's experience is somewhat more limited and he did not visit the site. Perrella's evidence was given on the basis of a computer model based on a number of assumptions. 37 Significant to Perrella's opinion was a calculation based upon the proposition that the base of the poles were fixed in the sense that they could not move. He based that upon the fact they were placed in the ground, presumably in accordance with appropriate industry standards. At the top of the poles there were either guy wires attaching them to anchor points or crosswires going across the top of the structure or both. I think there is some difficulty with Perrella's assumption. The wires of course have some degree of flexibility. On my finding, the poles had not been properly founded. Accordingly there was an ability for some movement at the base of the poles. Furthermore, Perrella's opinion was based upon the assumption that the side netting on the west side of the structure was at an angle of 45 degrees. In fact it was vertical. If the netting had been at 45 degrees and attached to the guy wires then there could have been no direct effect of wind pressure on the poles. When the side netting is vertical and is touching the poles then wind pressure on the side panels will be directly transmitted to the adjacent poles. 38 The possibility of there being a failure in the wire ropes simply as a result of the wind force was discounted by both Townend and Young. They were both of the opinion that the standard of wire ropes available and used by the plaintiff were such that a failure within them was a remote possibility.
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39 Then there is the possibility of the wire rope having been broken as a result of impact by some flying object in the storm. There are some difficulties with that proposition. Firstly, there is the evidence of Townend that the breakage was a tensile failure. Secondly, the guy ropes on the northern side were covered by the side netting on that side which was constructed at an angle of 45 degrees. That would have cushioned and to some extent deflected any impact by any flying object. If the plaintiff claims the cause of the breakage was shear fracture, rather than anything wrong with the construction, it was for the plaintiff to adduce that evidence and it has not done so.
40 The possibility of there having been some impact damage to the cable as a result of the work done on the vineyard was the third suggestion made by Perrella. Whilst that is always a possibility, its likelihood is lessened by the fact that the structure had only been there for a day. Again, if there had been impact damage then an examination of the cable should have been carried out by the plaintiff. It was not and again that possibility, being remote, can be discounted. 41 Accordingly, I am left with the explanation by Young as being the only reasonable explanation as to the reason for the failure of the crop canopy. 42 The failure to properly found the poles is either a breach of the contract between the plaintiff or the defendants or a breach of a duty of care owed by the plaintiff to the defendants in the construction of the crop canopy. Those propositions are so self-evident as to need no further explanation. 43 Accordingly, in my opinion, the plaintiff is liable to the defendant for the failure of the crop canopy. Damages - repairs 44 Phillip Morrow trading a director of Cablenet Design Pty Ltd was engaged to repair the damage. Both the old area and the new area were repaired. Morrow gave two separate quotes with respect to them. One of the quotes was for $26,000 and the other for $26,200. The defendants' insurers, Zurich Insurance, paid Morrow for one of the repair jobs. The defendants paid the other. The defendants paid Morrow in two instalments the sum of $26,000. Morrow says it should have been
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$26,200 and he was underpaid by $200. I am satisfied the defendants did indeed pay Morrow $26,000 and that it was for repairs to the new area which had been constructed by the plaintiff. If the defendants were counterclaiming for money which they had not paid that would be fraudulent. Fraud must be expressly pleaded. No such pleading has been filed by the plaintiff and accordingly that possibility can be discounted. 45 The contract price for the construction of the crop canopy was $31,890. It has not been paid. The defendants have incurred an expense of $26,000 to rectify faulty workmanship. The plaintiff would be entitled to recover the balance, namely $5,890.
Damages – crop losses 46 The defendant's claim that as a result of the collapse of the netting, the value of the entire crop of table grapes has been lost due to damage by birds and insects. I accept that occurred. There was a suggestion that the grapes might have been damaged by the storm independent of the collapse of the crop netting. There is no evidence upon which I could so find. There was also a reference to hail and possible damage, but on the evidence, if there was hail it was insignificant and I discount it as a possible cause of the damage to the grapes. 47 Counsel for the plaintiff referred to Watts v Turpin (1999) 21 WAR 402. He argued that the defendants could not recover the loss of the crop because damage of this kind is to be compensated on the basis that all that has occurred is that the income to be derived from the crop has been deferred until the next crop could be realised. In Watts the plaintiff was injured as a result of a motor vehicle accident. He was a part owner of an avocado orchard. As a result of the neglect caused by the injuries the avocado trees died. The avocado trees were two or three years old and would be expected to produce in a couple of years. They had to be re-planted. This delayed the receipt of income from the orchard by three years and interest on the expected earnings from the orchard was recoverable for that three years. 48 In this case, on the defendants' case, the entire crop of grapes valued at about $120,000 has been destroyed. Presumably the next year under the protection of the repaired netting the vines produced a crop of grapes and would continue to do so into the future. 49 I think in this case the loss suffered by the defendants is more immediate than in Watts. I wonder what the position would have been in
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Watts if the trees had been more than five years old and there had been a crop of avocados ready to be picked which as a result had failed but without affecting the trees. In that case presumably Watts would have lost the value of the crop for that particular year. 50 As I noted earlier, at a late stage in the proceedings the defendants amended their counterclaim to increase their claim from about $50,000 to about $120,000 based upon inspections and calculations carried our by Mrs Toutikian. 51 Mrs Toutikian's evidence was that the crop of table grapes was almost ready for harvesting, and indeed some had already been harvested. I do not know whether the harvested grapes came from the old area or the new, but the quantity is small and I have not counted it in these calculations. Mrs Toutikian says she inspected the crop and counted the bunches on a representative sample of the vines. She says she weighed representative samples of the bunches. The calculations are set out in Exhibit 21 which I reproduce. | Variety | Number of vines | Year planted | Bunches per vine | Weight per bunch | Likely quantity of fruit (1999) | Market price February 1999 | Gross receipts (1999) | | Red Globe | 86 | 1995/96 | 28 | 2 kg | 481 boxes (86x18x2) | $22.50 per box | $10,822.50 (481x22.50) | | Red Globe | 676 | 1996/97 | 28 | 2 kg | 3785 boxes (676x28x2) | $22.50 per box | $85,162.50 (3785x22.50) | | Red Globe | 234 | 1998/99 | - | - | - | - | - | | Flame | 72 | 1996/97 | 25 | 2 kg | 355 box (71x25x2) | $17.50 per box | $6,212.50 (355x17.50) | | Sultana | 34 | 1995/96 | 25 | 2 kg | 170 boxes (34x25x2) | $17.50 per box | $2,975.00 (170x17.50) | | Sultana | 176 | 1996/97 | 25 | 2 kg | 880 boxes | $17.50 per box | $15,400.00 | | TOTAL | 1278 vines | $120,572.50 | 52 There are a number of problems for the defendants with respect to this claim. Mrs Toutikian's evidence was that it took three years after the vines were planted before they came into full production. When in Exhibit 21 it refers to the year planted, being for example, 1995/96, that
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means the vines were planted in the winter of 1995 and the three years commences from the summer of 1995/96. Accordingly a vine is three years old in the summer of 1998/99 and, relevantly, in January 1999. According to Exhibit 21, therefore, there were 86 Red Globe grape vines which would have come into production in the first quarter of 1999. 676 Red Globe vines would not have come into full production until the following year, namely 2000. Similarly 72 Flame Seedless, and 176 Sultana grape vines would not have come into full production until 2000. 34 Sultana vines would have been in full production in 1999. Exhibit 21 also refers to 234 Red Globe vines planted in 1998/99. No claim was made with respect to those because they would not have come into full production until 2000. 53 I do not accept Mrs Toutikian's evidence as to the likely yield of grapes in the first quarter of 1999, being the subject of the claim. This is partly because of the late amendment which throws some doubt as to her veracity. In addition to that the sales figures for grapes produced by the defendants in earlier years and subsequent years were produced. 54 The old area and the new area were of similar size. There is no evidence of precisely which vines were planted in the old area. There was a reference to Cardinal grapes. It seems that after the 1998/99 season those vines were removed. Morrow said that when he replaced the netting over the old area there were no vines. Mrs Toutikian said they were removed because Cardinal Grapes were not a good seller. She did not give evidence which suggested there was any significant difference in the yield of Cardinal grapes compared to Red Globe grapes or Sultana grapes. Accounts for the years ended 30 June 1995, 1996, 1997, and 1998 were produced. I presume the production of grapes was only from the old area. There were some fruit trees as well and I do not know the extent to which any other fruit might have been included in those figures. To the extent they are it is of no disadvantage to the defendants in the calculations. The accounts do not set out the amount of production but give the income from grapes and fruit. They were:
1995 $6,268.99 1996 $8,190.84 1997 $7,780.00 1998 $4,224.50
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55 Although there are differences between the old area and the new area, they are of similar area. The difference between the actual production in those years and that claimed for 1999 is so great as to reasonably cause suspicion as to the validity of the claimed losses.
56 The sales figures for 2000 and 2001 were produced. In the year 2000 there were 707 boxes of grapes delivered. I do not know whether there was then any production from the old area as well as the new. But if, as Morrow said, there were no vines in the old area I think I must assume it is all from the new area. Mrs Toutikian said the vines were still recovering from the 1999 storm damage. It is therefore inappropriate to take the 2000 year into account. In 2001 there were 1962 boxes of grapes sold. Mrs Toutikian did not suggest the vines were still recovering so I presume they were all in full production at that time. In 2001, according to Exhibit 21, the 86 Red Globe, 676 Red Globe, 72 Flame Seedless, 34 Sultana and 176 Sultana would have been in full production. The 234 Red Globe would not have come into full production until the following year. That is, in 2001 there were 1,044 vines in full production. 57 Mrs Toutikian said that in the second year the vines produced little and for the purpose of this calculation I think it convenient to ignore it. At this stage of the calculation it would be of benefit to the defendants to leave it out. Later it may have the opposite effect but I think at the end of the day it will be balanced out. 58 Accordingly, from 1044 vines 1962 boxes of grapes were produced, that is, 1.9 boxes per vine. Using that as a basis of calculation on the first line of Exhibit 21 the 86 Red Globe vines would have produced 163 boxes not 481 boxes as claimed. The 34 Sultana vines would have produced 65 boxes not 170 boxes. 59 Exhibit 21 refers to market price. Those figures are close to those provided by the Metropolitan Markets and I adopt them. It was suggested I should use figures for grapes sold later in the year. The evidence from Mrs Toutikian was that the crop was pretty well ready to harvest and I think it reasonable to operate on the assumption it would have all been harvested whilst the prices were high. Accordingly, in my opinion, the defendants would only be entitled to $5,060 for loss of production being calculated as follows:
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Variety | Number of vines | Likely quantity of fruit | Market price | Gross receipts | Red Globe | 86 | 163 | $22.50 | $3,668 | Sultana | 34 | 65 | $17.50 | $1,138 | $5,060 | 60 From this must be deducted 15 per cent commission on sales, namely $759, leaving a balance of $4,301. 61 In a calculation of their loss the defendants also allowed for labour costs. That was on the basis of the large crop claimed. There were no labour costs in previous years. I am not satisfied any additional labour would have been need and there should therefore be no further deduction. 62 The plaintiff claimed interest, but the amount on the net due to the plaintiff would be trivial and I make no allowance for interest. 63 The plaintiff is therefore entitled to receive from the defendants as follows:
Balance of construction due to the plaintiff $5,890.00 Less loss of grapes suffered by the defendants $4,301.00 Net to the plaintiff $1,589.00 |