Jenkinson v Young No. DCCIV-98-1344

Jenkinson & Anor v Young
[2004] SADC 30
Judge Herriman
Civil
INTRODUCTION

The plaintiffs sue for damages for breach of a joint venture contract which comprised a series of three contracts allegedly concluded with the defendant between 1994 and 1996.
They say these contracts in turn related to their joint occupancy of retail shop premises owned by the defendant at 152 Magill Road, Norwood (“152 Magill”) and of adjoining leased workshop/warehouse premises at 146B Magill Road, Norwood (“146B Magill” or “the workshop” or “the warehouse”), and their joint engagement of a sales person to work at 152 Magill.
They say that the agreed period of the joint venture was nine years commencing from March 1995; alternatively, that the period was determined by the terms of what amounted to a statutory retail shop lease over 152 Magill, namely, a period of five years from 2 December 1996.
They allege the defendant breached the terms of the joint venture, however construed, by wrongfully giving notice to the plaintiffs to quit 152 Magill on 7 February 1998 and that by his continuing conduct he repudiated that venture. Ultimately, on 10 June of that year, the plaintiffs say, they accepted that repudiation.
In consequence, they contend, they suffered substantial losses in and about the relocation of their retail business, ongoing trading losses resulting from an inability to secure premises for an equivalent rental in an equally suitable location, dislocation expenses, in terms of higher operating costs resulting from the separation of retail and workshop activities, and the loss of use of the funds expended in mitigating their losses.
For his part, the defendant agrees there was a joint venture between them, but denies it was for a fixed term, whether by agreement or statute, and says it was terminable at will, that it was with the first plaintiff, Jenkinson, only, that it involved sharing of the shop premises and workshop/warehouse (albeit not on the same terms as alleged by the plaintiffs), that it did not include sharing the cost of employing a sales assistant, but did include terms ensuring Jenkinson brought to 146B Magill and made available to him and his son Damian (“Damian”), from the outset and on particular terms, Jenkinson’s machinery, stock and woodworking expertise. He says that, whether at will or otherwise by reason of Jenkinson’s failure to adhere to those terms, he became entitled to lawfully terminate the venture on 7 February 1998 and that he did so. Specifically, he denies the plaintiffs’ alternative contention that their agreement over the joint occupation of the retail shop at 152 Magill led to the creation of a five‑year retail shop lease within the meaning of the Retail and Commercial Leases Act 1995.
Finally, he disputes the plaintiffs’ damages claim. He originally asserted a substantial counterclaim for losses he said arose out of the plaintiffs’ breaches of the joint venture agreement, but at trial, he abandoned part of it and the remainder stood or fell according to the success of the plaintiffs’ claim.
Common Ground
Both the first plaintiff (“Jenkinson”) and the defendant (“Young”) are former schoolteachers who left that profession and established their individual antique businesses. Jenkinson began trading from leased premises at Belair Road, Hawthorn (“Belair Road”) in the mid‑70s, at first on his own account and later, through the second plaintiff, under the business name of “Fountain Antiques”. Where appropriate, I will refer to the second plaintiff as “the trustee”, but for all other purposes and as Jenkinson was the sole actor and agent for the trustee, I will, in speaking of the plaintiffs, be referring to things said and done by him on behalf of one or other or both of them.
Jenkinson’s principal stock interest was in Australian cedar and colonial furniture, and Fountain Antiques operated from a row of shops on Belair Road, Hawthorn (“Belair Road”), which contained retail, working and storage spaces. He was an active buyer of antique furniture, wood and fittings, whether in good or damaged condition, and had trained himself in carpentry and restoration techniques. He also employed people to do that and had purchased the machinery required for such work. In consequence, he held in storage substantial quantities of furniture pieces awaiting restoration, stocks of old wood and architectural fittings. These were kept not only at Belair Road, but also at warehouse premises he owned at 14 Townsend Street, Parkside (“Parkside”). He bought and sold in both retail and wholesale antique markets and, in consequence, spent most of his working days away from the Belair Road premises. He employed a person to conduct his retail operations during ordinary trading hours.
Young established Eureka Antiques at 152 Magill (premises which he later acquired) and, for a time, he shared those premises with another dealer. He focussed on a slightly different antique market from Jenkinson, describing his principal stock interest as rustic or primitive pine, depression‑style packing case furniture and objects. He operated his business in a different way, as well, spending most of his working day in his shop, either working on his stock or attending to retail sales. He purchased stock at auctions or garage sales when he was able. His repair, restoration and polishing work was carried out in the back areas of the shop or outside to the rear, but the extent of his repair and restoration work was considerably less in volume and complexity than that undertaken by Jenkinson.
Young’s premises at 152 Magill comprised a shopfront with an adjacent side driveway and a rear yard with its own side street entrance.
Young and Jenkinson had known each other since the early 1980s and had what might be described as a professional friendship. It centred upon their common interest in the antique business and they visited each other’s shops from time to time, although Young would, more frequently, call on Jenkinson at Belair Road. It was on his way home from work. Because of Jenkinson’s considerable stock of furniture awaiting restoration, wood and materials, it happened that from time to time, Young would purchase from him particular items in which he was interested, or which he needed for his own restoration work. Jenkinson usually sold these to him at a favourable price.
In early 1994, Jenkinson became concerned about his tenure of the premises at Belair Road. There is no need to detail the background to this, but it is enough to say the landlord was first wishing to sell the freehold and, when he later died, his executors were seeking to maximise the capital or investment return on the premises by whatever means.
For many years before this, the Parkside warehouse aside, Jenkinson had enjoyed the benefit of having his retail, warehouse and workshop premises side by side. This had provided distinct advantages in terms of handling and transporting items and in the ease of communication between shop and workshop.
The uncertainties over his tenure at Belair Road thus created a number of problems for him. He looked to solve them by a successful negotiation with the landlord, and later his executors, but, at the same time, he was exploring opportunities to move his shop and warehouse/workshop to other locations.
It was common ground at trial that Magill Road is a particularly suitable location for an antique retail outlet, and although there was some dissension at trial as to their relative importance in this context, other favourable locations included Unley Road, Glen Osmond Road and Goodwood Road.
Young, for his part, owned retail shop premises in that favourable antique precinct. He was plainly impressed by Jenkinson’s stock and materials, his skills in restoration and his woodworking machinery. He had, in the past, benefited from access to some of this and he had it in mind that Damian would also benefit from such access (albeit that it was a matter of dispute as to what he said to Jenkinson about this).
At a certain, disputed, point in time, both parties concluded there would be a distinct advantage to each in having the other’s business and facilities nearby and, after some discussions, that is what they set out to do. They agreed to share, for retail purposes, Young’s shop at 152 Magill (Jenkinson to pay Young an agreed rental contribution) and to lease and share the adjoining premises at 146B Magill Road, Norwood, which were to be used by them as a combined workshop/warehouse.
These latter premises abutted the rear section of the 152 Magill shop and were later connected to it by a doorway. They were then owned by a family known as Mahains and had previously been used as a warehouse by another party. In early 1995, they were placed on the market for sale and Jenkinson then sought to negotiate a purchase on behalf of Young and himself. He thought he had done so, but to his disgust, Mahains backed out of the proposal and the premises were then offered for lease in about March 1995. Because of the breakdown in Jenkinson’s relationship with Mahains, the parties agreed that Young should then negotiate a lease with Mahains and he did so, securing a three‑year lease with two rights of renewal, each of three years. This was done on behalf of both of them.
The lease was first orally agreed upon with Mahains and the parties entered into possession and began paying rent on about 27 April 1995, albeit that for reasons which will emerge, the lease document itself was not executed until 8 October 1996. It is clear on all the evidence that the parties intended to use the leased premises as a warehouse and as a workshop, albeit that the latter use gave rise to other problems, which I will come to.
It is common ground, too, that in about August 1995, the parties agreed upon the construction of a mezzanine floor within 146B Magill, but that its completion was delayed by several factors, some of which were contentious and some of which were not. These included the death of the original builder, the need to strengthen faulty works undertaken by him, capital funding problems over these and other works in the premises, the need to obtain Council development approval for the construction and an issue as to whether Council consent was also required for the proposed use of the premises as a workshop (as opposed to a mere warehouse).
The individual responsibilities of the parties over these delays were contentious, but one way or another, the workshop was not ready for full occupation until January 1998, a time just two months short of the lease renewal date.
In the meantime, Jenkinson had moved into joint occupation with Young of the retail premises at 152 Magill on 5 December 1996. On 7 February 1998, Young gave notice to Jenkinson to leave 152 Magill. Ultimately, he left there on 13 July 1998, albeit that he had in the meantime, and with Young’s consent, dealt with Mahains, “renewed” the lease and become the sole tenant of 146B Magill.
As to the retail premises, whilst it is common ground that the parties had, at some point, agreed to share them, in the sense of each having access to equal space within them, there were serious issues at trial as to the time when it was agreed that sharing would commence, whether it was agreed the premises would first be renovated and expanded, and as to Jenkinson’s claim that the joint employment of a shop assistant there was inherent in these arrangements.
It is undisputed, however, that after Young had, at his own expense, substantially renovated and expanded the shop premises, Jenkinson moved his retail operation there on 5 December 1996, it having been agreed in November 1996 that he would pay a rental contribution to Young of $250 per week plus rates and taxes. It was further undisputed that Young later agreed to contribute to the wages of a shop assistant.
It is common ground, too, that during the period of joint occupation of the retail premises, each of the parties used approximately 50 per cent of the available retail space, albeit that neither had dedicated access to specific areas within it. Jenkinson was rarely present in the shop during retail trading periods, whereas Young was generally always there or in the adjoining workshop. In addition, Young opened the shop and ran it by himself on Tuesdays and, at a later stage, on Sundays.
When, in July 1998, the plaintiffs left 152 Magill, they moved to alternative leased retail premises at 33-37 Glen Osmond Road, Eastwood (“Glen Osmond”). They have remained there since and have otherwise continued to use the warehouse/workshop at 146B Magill, again renewing that lease in April 2001.
After their ways parted, there was a limited financial reconciliation agreed upon between the parties, but neither contended it completely resolved all issues between them.
There were numerous disputes at trial, but the principal ones centred upon the formation, content and duration of the joint venture agreement and whether Young was, as he contended, entitled to terminate it at will. Damages were also in issue.
I will not attempt to traverse all the evidence given in what became a lengthy trial, but will, rather, deal with it in focussing upon the separate areas of dispute. Before I do that, however, it is appropriate that I make some observations as to the credibility of witnesses.
CREDIBILITY
There were a number of sharp conflicts between the evidence of Jenkinson and that of Young. In resolving them, I will have regard not only to the evidence each gave, the manner in which it was given and how each dealt with cross‑examination, but to other evidence I received in the case, comprising documents and the oral testimony of witnesses variously supporting or challenging one or other version.
I will specifically address here, the evidence and demeanour of each of Jenkinson and Young, but will comment on the presentation and credibility of the other non‑expert witnesses as I come to discuss the separate issues on which each gave evidence. With respect to those witnesses, I should say I generally found their evidence to be credible and reliable. I refer here to Tottman, McConchie, Damian, Barker and Byfield. Where there was internal conflict between them, I was not satisfied that it arose out of any attempt by any of them to mislead the court.
Although Jenkinson and Young had similar backgrounds and were of similar age, they were quite different personalities and conducted their separate businesses in distinctly different ways.
Jenkinson presented as bold and entrepreneurial, confident in decision‑making and prepared to take business risks. He had expanded his business operation at Belair Road to occupy several adjoining shop spaces and had the machinery, stock and fittings I have previously described. He employed a person to conduct retail and spent most of his time supervising repair or renovation works, or away from Belair Road buying for retail or buying and selling in the wholesale market. He had taught himself and acquired substantial skills in restoration.
In his own counsel’s description, he was a “wheeler dealer” and prepared to delegate renovation and retail tasks to employees. At the same time, he was a tidy, indeed fastidious, person.
In contrast, Young was a careful, conservative man who preferred to do his own buying and selling, who was less inclined to purchase items that required substantial renovation and who generally limited himself, in the workshop, to what might be called “finishing” antique goods, that is to say, carrying out a limited range of repairing, polishing and preparing items for sale. Even so, with the restricted storage and workspace he had, he did not carry a large quantity of unprepared goods. He presented as a quieter, less assured, less articulate, less adventurous person who preferred to stick to doing the things he was familiar with and in his own market area.
Their coming together in some form of business venture was prompted by their common interest in antiques generally, their reasonably longstanding professional friendship (it could barely be described as a personal friendship), the problems facing Jenkinson in securing alterative premises for his activities, his interest in the Magill Road precinct, Young’s interest in his stock and plant, and the fact that each foresaw benefits to be derived from the proposed association.
There was a substantial measure of enthusiasm on each of their parts for the venture, indeed to the point where, as I find it, each became blinded to the particular financial and personal implications inherent in it. Neither appears to have had a real appreciation of the time which would be occupied in setting up the venture, nor what it would cost, there was no business or venture plan and no serious attempt was made to document its terms, nor even to resolve in advance numerous matters of detail, which later became quite contentious. So poorly did they plan, that the workshop lease was arranged by Young and they entered into possession of it even before there was any consensus about how the retail or workshop areas would be improved and divided, how this would be paid for and what rental contribution Jenkinson would make towards the shop. Neither appears to have carried out any projections on the time and cost of the shop or the workshop renovations, nor the cost to Jenkinson of moving from Belair Road. In the end and almost inevitably, these factors, their differing operating styles and financial resources brought a swift conclusion to the possibility of an enduring relationship.
Even before Jenkinson moved his retail business to 152 Magill, problems had arisen in their relationship which were ultimately to prove fatal. In the event, they shared those premises for 18 months only and were virtually at arm’s length for the last six months of that. Their joint expectations of using the workshop/warehouse as such were never realised.
The evidence of each of their partners, McConchie and Barker, as to various of the meetings they attended with Jenkinson and Young in the latter part of 1997, was eloquent testimony to their respective inabilities to properly communicate, let alone establish a satisfactory business relationship.
As the case unfolded, it became plain that each harboured deep resentment at the actions of the other and I was obliged to treat certain aspects of the evidence of each of them with considerable reservation and, in some cases, outright disbelief.
Jenkinson’s evidence
A substantial part of Young’s case comprised a concerted attack on Jenkinson’s credit with respect to various of the financial documents discovered by the plaintiffs and referred to in the report of their expert, Mr McPharlin. For a number of reasons, it is necessary that I deal at some length with that challenge. In doing so, it is necessary that I also discuss various objections made by the plaintiffs’ counsel to the cross‑examination of Jenkinson and the tendering of certain documents pertinent to that attack.
The starting point for this topic is really the evidence and two reports of McPharlin. Those reports became P27 and P39, and I will henceforth refer to them variously as McPharlin’s “first” or “second” reports. They set out his assumptions and his calculation of the plaintiffs’ losses said to have arisen from the defendant’s wrongful repudiation of the joint venture.
In preparing his first report, McPharlin expressly stated that it was based on the documents referred to in its Appendix 2. (His second report identified further documents upon the basis of which his calculations in the first report were varied.) It is significant to note, then, that the documents comprised in Appendix 2 of the first report included, inter alia, all of the plaintiffs’ documents discovered in the action and, in particular, financial statements and tax returns of the plaintiffs for the years 1994 onwards, the Jenkinson Family Trust (“the trust”) general ledger, two schedules of retail and shop sales for the period between November 1996 and January 2001, and the cash book for the year ending June 2000. I specify these because, included in them, are documents which the defence sought to tender and to which plaintiffs’ counsel objected.

In both reports, McPharlin went on to comment upon the profit and loss accounts and balance sheets for the trust, being the operating entity of the business over relevant periods. Pertinently, at paragraph 3.6 of his first report, he observed:
“The overhead expenses appear to be substantially ‘fixed’ in nature rather than varying with turnover.”
That comment is important in the reasoning process which he then adopted for the calculation of the plaintiffs’ asserted losses. The process was as follows:
(1)He said it was “reasonable to assume that only retail sales have been affected by the matters claimed” - that is to say, the alleged wrongful termination of the joint venture and the need for the plaintiffs to relocate their retail outlet away from Magill Road. Wholesale sales, he observed, were not location‑specific. He went on: “Consequently, for the purposes of this report, the relevant sales (I interpolate, for the purposes of comparing trading at 152 Magill with that at Glen Osmond) have been determined by deducting all wholesale sales from shop sales”.
(2)Putting aside for a moment the plaintiffs’ contention about loss of retail business due to tensions in the shop between May and July 1998, he said, the figures showed that the value of retail sales declined after Jenkinson relocated his retail operations to Glen Osmond.
(3)The amount of this decline could be measured, he said, by comparing average monthly retail sales over a fixed period at Magill Road with average monthly retail sales subsequently obtained at Glen Osmond Road.
(4)Overheads being generally fixed in nature, he said, one could calculate an average gross profit margin for retail sales generally – that is to say, at either location – and that margin could then be applied to the difference between the average monthly sales figures shown by the comparison in paragraph 3 to calculate the true average monthly loss in the period since Jenkinson left 152 Magill.
(5)That average monthly loss could then be multiplied over the unfulfilled term of the joint venture in order to establish the plaintiffs’ overall trading loss figure.
Young responded to this aspect of the plaintiffs’ case on damages in a number of ways:
(a)whilst he did not, in a general sense, oppose the methodology adopted by McPharlin, through his own expert, Mr Crase, he pointed to different interpretations of the source material;
(b)by challenging the accuracy of various factual assumptions made by McPharlin, in particular where he expressly relied upon Jenkinson’s instructions on the topics mentioned above;
(c)by otherwise challenging the reliability or completeness of certain of the financial materials upon which McPharlin relied.
I will come to discuss the first of those matters in due course, but it was the second and third challenges which became particularly contentious and which obliged me to make certain rulings as to reception of evidence.
In compiling Appendices 4 and 6 of his first report, McPharlin had had regard to invoice books for the relevant periods and had assumed they were accurate and complete. He had relied upon specific instructions from Jenkinson categorising sales and identifying labour allegedly expended by the trust in bringing particular items into sale condition. To the extent he had thus relied upon Jenkinson’s instructions, Jenkinson’s credibility came under concerted attack in these areas:
(1)In respect of the financial year ending 1998 (a date corresponding very nearly with the time when Jenkinson moved to Glen Osmond), Young sought (over the plaintiffs’ objection) to have introduced into evidence the trust’s cash books and banking records (D8 and D9), which, along with an explanatory document used for the purposes of cross‑examination (D11), appeared to show that cash receipts for the relevant year totalled $30,985 against cash bankings of $2,000. Faced with that documentation, Jenkinson acknowledged “there does seem to be a deficiency in banking of the amount of $28,000 that was banked or that could or should have been banked in the PB Jenkinson Pty Ltd account” (p.596).
(2)Separately, in respect of the financial year ending 1999, Young sought (over the plaintiffs’ objection) to tender the plaintiffs’ cash books and bank statements for the period (along with a summary document prepared for the purpose of the cross‑examination – D18), which prima facie appeared to disclose recorded cash sales of $19,049 as against cash bankings of $40,500.
With respect to this discrepancy, Jenkinson rejected any suggestion that he had not recorded all cash sales or that he had made shop sales which were not in the invoice book. He said the discrepancy had likely resulted from introduced capital funds or retaining moneys for his cash float or from sales of his private tool collection or from delay in banking or sloppy bookkeeping.
He denied he had deliberately concealed receipts in order to bolster his claim.
(3)With respect to the year ending 2000, Young’s challenge to Jenkinson was that there was a marked lack of correspondence between the amounts and timing of cash receipts and the amounts and timing of bankings.
Jenkinson agreed that he had not banked cash totalling $9,770 at or about the times that he had received it during that year.
During cross‑examination of Jenkinson on all of those matters, his counsel objected to defence counsel pursuing his questioning beyond certain points, contending that it went to collateral issues and upon which Jenkinson had already given firm answers, and he otherwise objected to the defence tendering certain of the plaintiffs’ financial documents.
The basis of his objection was that in formulating their loss claim, the plaintiffs had specifically not relied upon the financial documents sought to be tendered, but had relied solely upon the invoice books of the business and their own instructions to McPharlin as to the proper categorisation of sales and moneys expended on preparing items for sale. Thus, he argued, the defendant had to be content with the answers given by Jenkinson to challenges made with respect to other financial documents and could not seek to further cross‑examine Jenkinson on the answers given by him as to them, nor to introduce documentary evidence relating to those matters (by seeking to tender the financial documents under attack).
In response to that objection, defence counsel said that his cross‑examination and the contentious documentation went not merely to credit, but to matters directly in issue, namely, the quantum of the alleged loss, that the documents sought to be adduced were, in any event, documents discovered by the plaintiffs and documents upon which McPharlin had expressly “based” his opinion.
In the event, I ruled in the defendant’s favour in connection with all the evidence subject to objection, and I did so for the following reasons:
(1)I was not persuaded that the collateral evidence rule operates to inhibit further cross‑examination of a witness seeking to challenge an answer given on a collateral issue. Of course, that is not to say that ordinary rules of relevance might not intervene. No such stricture is acknowledged in Goldsmith v Sandilands (2002) 190 ALR 370 or Piddington v Bennett and Wood Pty Ltd (1940) 63 CLR 533, save and except that at paragraph 66 of the judgment of Kirby J in Goldsmith, his Honour appears to refer to specific provisions relating to this, in the uniform evidence legislation.
(2)I did not take plaintiffs’ counsel to be objecting to there being tendered in evidence the memoranda prepared by defence counsel for the purposes of cross‑examination and which became Exhibits D11, D18 and D28. Those documents were not evidence per se, were only receivable if the primary documents were admissible and otherwise served a useful purpose in enabling the witness to focus his attention on the entries under challenge and as an aid to the court.
(3)To the extent that defence counsel otherwise tendered in cross‑examination various of the plaintiffs’ documents, including cash books, bank statements and the like, I received them for a number of reasons:
(a)they were documents discovered by the defendant in the action;
(b)McPharlin had expressly said he relied upon them in preparing his reports – no attempt was made by the plaintiffs (other than in argument) to discount that claim;
(c)with respect to the years following June 1998, they were directly relevant to the asserted quantum of the plaintiffs’ claim;
(d)with respect to the 1997/98 year, they were facts relevant to facts in issue. In that respect, I refer to McPharlin’s expressed reliance upon those documents and, in particular, his conclusion in paragraph 3.6 of his first report, based on a review of all financial accounts for that year, along with other years, that “(t)he overhead expenses appear to be substantially ‘fixed’ in nature rather than varying with turnover”. Such a conclusion must necessarily be based upon an acceptance of the accuracy of source or primary documents for the relevant years. That conclusion was a necessary plank in the methodology adopted by him for calculating asserted losses;
(e)in any event, to the extent it might be argued that any of the challenged documentation was not relied upon by McPharlin, I was mindful of the general discretion I have to admit evidence which I am satisfied has sufficient relevance to a fact in issue. Here, the whole question of the plaintiffs’ prepared accounts and the way in which they were interpreted by McPharlin, on the basis of the plaintiffs’ instructions, was relevant to a fact in issue, namely, the asserted calculation of the plaintiffs’ loss. I was not persuaded that the plaintiffs could simply choose to isolate from all their other financial information a particular document upon which they sought to rely and thereby avoid detailed challenge to other documents forming part of the same series of business records, and which potentially challenged the accuracy of those they relied upon;
(f)as well, an accepted exclusion to the “finality” rule arises in connection with prior inconsistent statements and, indeed, under section 29 of the Evidence Act, I was satisfied that the defence was entitled to put to Jenkinson those written financial materials relating to the plaintiffs’ business which tended to contradict his evidence at trial and his invoice books upon which he sought to solely rely. Although, during the course of his cross‑examination, Jenkinson on occasions sought to distance himself from the preparation of those books, he ultimately conceded that they were adopted and relied upon by him for the purposes of preparing final accounts and, indeed, it appeared that that information ultimately found its way into relevant tax returns. I was thus satisfied that these were prior statements in writing for which Jenkinson was responsible, which were adopted by him, and that they were properly put to him. I thus elected to receive them.
The receipt of that documentary evidence and, indeed, the outcome of the cross‑examination of Jenkinson on these issues, was a matter of some significance in my assessment of his credibility. It did not stand alone because, on other matters, too, I was less than satisfied about his reliability. For the moment, however, I will discuss those aspects of the evidence arising out of cross‑examination on the plaintiffs’ financial accounts and which, I considered, substantially discredited him.
With respect to Exhibit D11 and the cash transactions for the year ending 1998, as I have already noted, he admitted that some $28,985 of cash receipts was not banked. That acknowledgment, of itself, does not discredit him and, indeed, I should say at this stage that I had no regard whatsoever to his refusal to answer numerous questions going to the accuracy of taxation returns filed by the trust. Rather, it was the evidence Jenkinson gave in seeking to explain the failure to bank those moneys which I found to be quite unsatisfactory. He commented (p.573): “As a general rule moneys are banked regardless of their denomination”. It was then suggested to him that it was logical to expect to see bankings of cash at or about the time of receipt. His answer was less than direct (p.573):
“I would suggest to you that there are other alternatives, and one is that some of my bills are paid for by credit card and there may have been some cash banked to cover credit card.”
Elsewhere, Jenkinson offered to show how cash moneys were so deployed, but apart from specific entries in the books which evidenced some such usage, and then of small amounts, no such evidence was forthcoming.
As cross‑examination on each of the items in D11 proceeded, he was required by me to answer individual questions about whether cash sales received were banked. Once again, his answers were rarely direct and instead simply conceded that it did not “appear” that sums were banked, that he was “unable to find ... banking for those amounts” (p.608). He was given an extended time to check off the entries in D11 against his invoice book and, somewhat reluctantly, conceded that there did not appear to be corresponding bank records for cash moneys received.
The particular significance of this evidence is that Jenkinson elsewhere recognised that the financial accounts of the trust were prepared on the basis of the cash book, which in turn was prepared on the basis of banking records. It thus appeared from the cross‑examination of Jenkinson that there was some $28,985 in cash receipts that did not find its way into the banking records and, inferentially, into the trust’s financial accounts for the year ending 1998.
Whilst, as plaintiffs’ counsel contended, the methodology adopted for calculation of loss was not based upon the trust’s financial accounts but rather upon paid invoices, the failure or inability of Jenkinson to explain the non‑banking of an amount of the size of $28,985 caused me to have grave reservations, not merely about the accounts for the year ending 1998, but with respect to the trust’s accounts generally, about Jenkinson’s credibility in particular and, squarely, about the reliability of the instructions provided by him to McPharlin and upon which McPharlin had relied in making his calculations.
Those reservations became more acute by the evidence which followed with respect to the plaintiffs’ accounts in succeeding years.
With respect to the financial year ending 1999, the first financial year at Glen Osmond, the lack of correspondence between cash received and cash banked went in another direction, that is to say, the cash bankings exceeded cash sales (recorded in the invoice books) by some $21,451. McPharlin had, of course, relied upon the invoice books.
Jenkinson was attacked at length over this. He denied not recording cash sales and said that the additional cash sums banked were likely the result of his injecting personal cash moneys, substantially resulting from the sale of his personal tool collection, to “alleviate” the cash position of the business.
He was pressed at length on this matter and ultimately, and again reluctantly, seemed to concede that cash bankings did not readily match, in amount or timing, cash receipts. Once again, however, he sought to say that he could prove that the extra cash bankings comprised introduced funds. When confronted with the suggestion that there were already specific records, in those accounts, of “introduced” sums, he said that there were other unrecorded amounts introduced and that they had been “sloppy” (p.686) in not recording them. He referred, as well, to using cash receipts to make stock purchases and other expenditures, said that not all such transactions were recorded, that the books were incomplete and frequently there had been delays in entering such details. He did not think the cash book for 1999 was complete in this respect and (at p.701) he said “I reserve my rights regarding the other proposition which is did I run off to the pub with the money or something. I claim not to have done that, but that’s a different matter.”
In a separate challenge, he was referred to solicitors’ correspondence which was tendered (D23) and wherein Young’s solicitors had sought discovery of all documentation relating to introduced funds. In reply, his own solicitors had said, in a letter of 19 September 2002, inter alia, “these loans are journal entries and are evidenced only in the Financial Statements of the trust already discovered and there are no further documents that evidence same”. It was suggested to Jenkinson that he had given such instructions to his solicitors and that the clear implication was that there were no introduced funds beyond those specifically referred to in the financial statements. He prevaricated on that, saying that was not his understanding of the situation (p.681) and “I haven’t caught up with documentation over that period and that’s sloppy of me and I guess what’s happening here is he’s asking for photocopies of records which have not yet been prepared” (p.686).
I thought that, overall, his explanations for non‑banking or non‑recording of cash received in the year ending 1999 bordered on the farcical. He variously said it was due to sloppy bookkeeping, then suggested the moneys might have been used to buy stock, then suggested that cash withdrawals from the till were always met with refund cheques, then he said there could have been time delays. He contended he had banked more than the papers showed, but he had just not banked it immediately. All this was in the face of his opinion, which he had urged upon Young, that Tottman was a competent and reliable bookkeeper, and of documents in which there were recorded specific sums for introduced funds, purchases and the like.
For the above reasons, my reservations about the reliability of Jenkinson’s evidence, as to his accounts and generally, increased and they were confirmed by his evidence as to bankings in the 2000 year, where he appeared to acknowledge that he had not banked, at or about the time they were received, cash receipts totalling $9,770 (p.754).
The significance of those attacks on the accounts for the 1998, 1999 and 2000 years was as follows:
(1)For reasons which I have expressed, they damaged Jenkinson’s general credibility and had serious implications for the reliability of the assumptions upon which McPharlin had proceeded.
(2)It was put to Jenkinson that the omission of some $21,000 worth of cash sales in records relied upon for the year ending 1999 and some $9,770 in the same records for the following year, was deliberately undertaken with a view to bolstering his claim in these proceedings. He denied that. Nonetheless, in the absence of other evidence, it can be assumed that at least some of that income was “retail” income and there can be no doubt that a failure to account for it does have the effect in McPharlin’s figures of increasing the amount of the plaintiffs’ claim in the action.
(3)If, indeed, there was a failure to bring into account takings of that order, that omission impacts upon the accuracy of the document Appendix 6, which otherwise purports to be an exhaustive list of retail sales in the financial year ending 2000 and which, of its nature, relies substantially on the accuracy of Jenkinson’s instructions as to cost of goods sold.
I should add, on this topic, that even if I am wrong in my ruling as to the cross‑examination and admissibility of documentation of Jenkinson relating to the year ending 1998, I should say that, quite independently of the evidence relating to that year, I formed a quite adverse view of his reliability as a result of cross‑examination going to the accounts of the following two years, being years where, plainly, the challenged cross‑examination and documentation was directly relevant to McPharlin’s assumptions as to sale categorisation, monthly totals and cost of goods sold.

I have dealt with Jenkinson’s evidence on these matters in some detail because my ruling and findings require that, but I should also say that there were numerous other aspects of his evidence where I found him to be prevaricating or unreliable. Some of these will arise as I discuss the issues, but I mention, in particular, his evidence as to what occurred at Dimoz restaurant, which was not supported by any of the others present, his evidence as to the joint venture and its nine‑year term having been settled upon in 1994 as against his pleadings with respect to this, his evidence with respect to the discussions over the purchase of the Salvation Army shop on Magill Road, and his evidence with respect to trading activities he undertook after departing from 152 Magill, particularly in the e‑bay market.
All of the above is not to say that I rejected Jenkinson’s evidence overall, nor at all points where it conflicted with that of Young. Indeed, with respect to some matters, I preferred his evidence over that of Young, who I also found at times to be an unreliable historian.
Young’s evidence
Young’s recollection of events was plainly faulty in a number of respects and has caused me to examine what he said very carefully. I simply do not accept his claim that, prior to early 1995, there had been no discussions about a joint venture and that out of the blue, as it were, he alerted Jenkinson to the Mahains property in early 1995 and that it was in consequence of this that Jenkinson proposed the joint venture. Against the background of Young’s careful nature, their earlier discussions about the Salvation Army shop, Jenkinson’s drawing of plans and liaison with Council over 152 Magill, and the unlikelihood that Young would alert a potential competitor to the availability of the next‑door premises, that is highly improbable.
I reject for the same reasons, his claim that the first discussion or plan about expanding and renovating 152 Magill was when he decided upon it in October 1995. Comelli was instructed two months before that.
Further, as to their joint occupation of 152 Magill, it is plain, on any account, that they could not have both fitted into the space being used by Young as of March 1995 and, inevitably, the question of how the shop would be adjusted to accommodate their needs must have come under discussion well before August 1995. Young was then occupying 70 to 80 square metres of space. It is simply implausible that Jenkinson might have contemplated attempting to share that space and, indeed, it took Young until August of that year to free up 80 per cent of the available space at 152 Magill. Even then, it fell well short of the total 300 square metres of space which the parties ultimately shared. Young sought to explain this unlikelihood in terms that both businesses had agreed to reduce their stock, downsize their operations and target particular markets. That proposition had never been put to Jenkinson in evidence and again appeared to be some vain attempt at rationalising or explaining his otherwise untenable claim that Jenkinson had agreed to move promptly to 152 Magill. That position is further discredited by the fact that had that truly been in the parties’ contemplation, one would have expected an agreement as to Jenkinson’s rental contribution would have been concluded promptly in March 1995, yet that did not occur. It defies belief that, in this context, in the several meetings with Jenkinson related by Young to have occurred between January and March 1995, this question would not have been raised.
I am satisfied that in the first flush of excitement at having secured the Mahains lease, both Jenkinson and Young were indeed contemplating an early move of Jenkinson’s entire operation to Magill Road and I am persuaded that such was discussed between them. In that context, Young was perhaps expecting he could quickly clear out his shop, but despite his best efforts, that still took several months. Jenkinson, too, grossly underestimated the time and effort required in moving his stock, plant and equipment. In the event, both moves were set back very substantially by the building works at 146B and 152 Magill, to which they each committed.
I had difficulty, too, with other aspects of Young’s evidence.
His primary position was that the joint venture was terminable at will, but at page 1749, in discussing the lease on the workshop, he said the following:
“Q.Did it cause you any concern that the lease had been drafted on a three-by-three-by-three basis.
A.No it didn’t. As far as I was concerned, I understood I was responsible for three years and if the joint venture proved a failure after three years, I could leave, I could end the lease.”
Then at page 2040, in cross‑examination, he was tested on that conflict. He was unable to offer any meaningful response to it.
Similarly, when challenged in cross‑examination upon his claim that Jenkinson was to move into 152 Magill within a month of the commencement of the joint venture, his answers were prevaricating and quite unsatisfactory. He retreated to the position that Jenkinson had been “at liberty” to move to the Magill Road shop from the beginning, albeit that he had not required him to do that, nor to contribute towards its rent, and, indeed, his failure to since assert a claim for a rental contribution from March 1995 is itself significant.
His evidence as to the inaccessibility of Jenkinson’s wood and furniture stock was also unconvincing. He complained that, by virtue of Jenkinson’s failure to move to Magill Road in the time expected, he did not gain access to those materials, but he readily conceded that he might have gone to Belair Road and accessed them had he wanted and, indeed, it emerged that he had done this on a number of occasions. When challenged as to why he did not continue to pursue that method of accessing those materials, he responded with the unconvincing answer that he did not want to, because it would weaken his position.
Young’s claim that his notation on the reverse side of page 49 of Exhibit D1, containing the words “by end of March”, was a record of an agreement reached with Jenkinson to move to 152 Magill by that time is not credible, and for a number of reasons. In the first instance, the lease terms had only been negotiated with Mahains on 11 March and, even on Young’s account, Jenkinson was not to join him for a month. Even then, it must have been apparent to Young that Mahains had to take steps to give notice to the existing tenant of the premises, Waites, albeit that the exact period of notice was not then appreciated. Further, the positioning of those words on the page opposite page 50 of that exhibit is more consistent, in meaning and time, with a note relating to discussions between Young and Mahains concerning the lease of the warehouse and the time of its availability (which, on other evidence, was later put back to April) and it is consistent, too, with the other adjacent notations clearly relating to discussions with Mahains over three‑phase power, air‑conditioning and a steel door. Further to that, it is inconceivable and unrealistic that Jenkinson might have agreed to move his entire retail premises, to the limited space at 152 Magill that Young could then offer him, within three weeks. Young’s assertion that that note corroborates discussions he had with Jenkinson, in fact discredits him.
Generally, on Young’s account, the delay in the availability of the workshop was due to the failure of Jenkinson to obtain the necessary consents and see that the works were carried out, yet, apart from the belated undertaking by Jenkinson, at Young’s request in March 1997, to enquire about workshop approval, it is evident that the delay was as much attributable to Young as to Jenkinson. In the first place, Jenkinson’s suggested and agreed contractor, Laidlaw, had perhaps let both parties down by building an inadequate structure and not gaining consent for it. He had then died. This was at the end of 1995 and Young had then informed Jenkinson (and this did not appear to be in dispute) that he was not prepared to spend any more moneys on the warehouse development. Young appeared to dispute his asserted reason for saying this, namely, that he had no funds, but on his own evidence and keeping in mind what he had spent on 152 Magill, that was plainly the case. In fact, he later paid for architects’ and engineers’ fees, but otherwise the continuing costs of the renovation were borne by Jenkinson.
At all events, Comelli was then asked by Young, in March 1996, to inspect Laidlaw’s work, he saw problems with it and, in consequence, an engineer had been engaged to make recommendations for its correction and with respect to the staircase.On Comelli’s account, which I accept, Young then asked him to enquire about requisite Council approvals. He did and informed Young that whilst only building approval was needed for the works to be carried out, if there was to be an application for formal approval for the premises to be used as a workshop, it would be a long and difficult one. In response, he says, Young told him not to proceed with that application (p.2286). I have no reason to doubt, and I accept, what Comelli said about this and find it was only later, in March 1997, that Young pressed Jenkinson to pursue that matter and Jenkinson agreed to do that.
Ultimately, building consent for the workshop was obtained in July 1997 and works were completed by the end of that year.
In that scenario, given Young’s refusal/inability to contribute to those renovations, the history of Laidlaw’s work, and Young’s dealings with Comelli and with Jenkinson, there is simply no basis for Young blaming Jenkinson for the delay in completion of the workshop and, in consequence, Jenkinson’s failure to move there. On Young’s evidence, he complained of Jenkinson’s delay in moving into the workshop, repeatedly, in the several meetings they had in the latter part of 1997. These things should be said about that:
(1)It is plain that Young, and to a lesser extent Jenkinson, were using the workshop for limited storage purposes in the meantime, anyway.
(2)It was clearly inappropriate and impractical for Jenkinson to move his stock, plant and equipment to the workshop until the agreed works had been completed and that was not until the end of 1997.
(3)Young’s assertion that this was a constant item of complaint on the agenda of their meetings in mid to late‑1997 was disputed by Jenkinson, it was not supported by McConchie, nor Tottman, nor his own witness Barker, and it achieved only very limited support from Damian. On all the evidence, I am not satisfied that Young did, indeed, raise a complaint of this nature at those meetings, nor, in the circumstances, would there have been any basis for him doing it. He may have been concerned to discuss the program for that move and that may well have been noted and discussed, but never then in the context that he was holding Jenkinson responsible for the delay.
(4)As I have already noted, Jenkinson was, in effect, being left to fund the work himself and it hardly behoves Young to complain about delay in those circumstances.
Overall, Young’s criticisms of Jenkinson’s conduct with respect to the completion of the workshop do him no credit.
Finally, there is a marked inconsistency between Young’s claim that the tenancy was terminable at will and the contents of his own solicitors’ letter to the plaintiffs’ solicitors of 26 February 1998 (P22). In the latter, there is no mention whatsoever of such an option and, indeed, the claim to terminate there appears to be based upon Jenkinson’s alleged breaches of agreement and misrepresentations.
Generally, I felt that Young sought to exaggerate his evidence in a self‑serving way and that he sought to elevate to the status of contractual conditions or terms, what were no more than casual conversations he had with Jenkinson over planning and associated issues. I will touch upon those various matters as I deal with the factual conflicts in the case.
As I have already observed, for two men who had been conducting their own businesses over a number of years, they each demonstrated a quite remarkable lack of business sense or planning. Obviously, there was a broad consensus between them about the shared occupation of 152 Magill and 146B Magill, and about Young, in some manner, having access to Jenkinson’s stock and plant, but as matters progressed, each must have realised there were no agreements about:
(1)the time it would take to have 152 Magill ready for joint occupation and just what Young would do to make it ready;
(2)what renovations would be carried out to the warehouse/workshop, how long they would take and who would pay for them;
(3)in the face of both lots of renovations, when Jenkinson would enter into occupation of either space;
(4)whether Young would contribute to the shop assistant’s wage and, if so, on what terms;
(5)numerous other peripheral matters discussed in their late 1997 meetings.
Plainly, at later stages in their relationship, each party formed a view about what were the relevant terms and conditions and those views were, to a greater or lesser extent, reflected in documents they tendered by way of diary notes, minutes, agenda notes and the like, but essentially these reflected little more than the attitude of the maker of the document to what were the terms of the venture. They offered little by way of corroboration and, indeed, on occasions during the trial, I wondered whether there was ever a consensus reached about any of the contractual conditions contended for by either of them. I thought each party, in giving evidence, sought to reconstruct events in a light favourable to his cause and I thus had limited confidence in much of what I was told.
Amidst that level of scepticism, however, there are the undoubted facts that Young did renovate and extend 152 Magill and that the parties did come together there between December 1996 and mid‑1998, that they each took some part in the preparation for occupation of the warehouse/workshop and they did reach some agreement about the payment of Tottman’s wages.
In those circumstances, I am satisfied that there was concluded between them a joint venture agreement with respect to the occupation and use of the shop and the workshop, but, for reasons which will emerge, I am far from satisfied that many of the terms of that agreement alleged by each were in fact agreed upon.
LIABILITY ISSUES
At this point, I propose to discuss the evidence relating to the principal areas of contention on liability and to make findings as to them and associated matters.
I will address them under these heads:
1.     When did the joint venture commence?
2.     Who were the parties to it?
3.     What was agreed upon relating to:
.    the period of the venture;
.    did the Retail and Commercial Leases Act apply;
.    the extension and improvement of the shop at 152 Magill;
.    the improvements to the warehouse/workshop at 146B Magill;
.    the employment of Tottman;
.    what then was the joint venture?
4.     Termination of the joint venture.
5.     Discussion of legal principles in relation to breach of contract.
6.     The defendant’s claim to have lawfully terminated the joint venture.
7.     The plaintiffs’ claim to have lawfully terminated the joint venture.
8.     The defendant’s reliance on pre‑contractual conduct.
9.     The defendant’s counterclaim.
10.    Liability summary.
1.     When did it commence?
There is a marked difference as to the respective positions of the parties, not merely as to the terms of the venture, but as to when it began. It is useful to look at the latter question first.
As I have noted, it was common ground that, whether the joint venture arose from one agreement or a number of successive agreements, it involved equal sharing of the retail space and of the adjacent workshop. In one sense, the time when consensus was reached is thus of marginal relevance, but in another sense, the competing claims of the parties as to the origins of the venture had important implications in terms of credibility.
On the plaintiffs’ case as pleaded, there were, in fact, three successive agreements which constituted the joint venture. The first of them was concluded between May and November 1994, when they say the parties agreed to jointly occupy the retail space at 152 Magill, which would be extended and refurbished “for high quality retail purposes” and that that venture would continue for a term of nine years from March 1995. The original pleading as to this had been that these terms were concluded in November 1994, but it was then amended at the commencement of trial to plead that it was concluded between those times.
The second agreement pleaded was in March 1995, when they agreed to lease 146B Magill to use it as a workshop and warehouse facility for a period of three years, with two further three‑year options, to seek Council permission for that use and to fit it out as a workshop.
The third alleged agreement was reached in November 1996, when they agreed they would jointly engage Tottman to act as a salesperson in the shop and a keeper of sales records.
In his evidence, Jenkinson described the first agreement in quite different terms and I will come to that in a moment.
For his part, Young pleaded that the joint venture was agreed upon in March 1995, that it was in terms that he and Jenkinson would, from April 1995, share the retail premises at 152 Magill for an undetermined period and lease for three years the premises at 146B Magill, to be used as a workshop and warehouse. For that purpose Jenkinson would seek Council approval. Later in that year, he pleaded, they agreed upon renovation/extension works for the retail shop and workshop and he agreed to contribute to Tottman’s wage. Although his pleadings did not deal with the precise timing of all of these matters, they alleged it was further agreed that:
(1)Jenkinson would move his entire Belair Road operation to Magill Road within a month of March 1995;
(2)he (Young) could continue to do restoration work at 152 Magill;
(3)Jenkinson would sell stock to him and his son Damian at a 10 per cent discount;
(4)Jenkinson would make his machinery available to them both (and teach Damian woodworking skills) for a sharpening cost of $10 per week;
(5)each of them would contribute 50 per cent of the time to their joint retail efforts;
(6)they would promote and sell each other’s products equally;
(7)they would retain their full commissions on their respective consignment items;
(8)Jenkinson would bring his alarm system, air‑conditioning and fan systems to Magill Road;
(9)Jenkinson would pay rental for using 152 Magill at $250 per week; and
(10)the joint venture was terminable by either party at will.
By and large, Young adhered to that position at trial, but that is not to say his claims were borne out by the evidence.
In considering just when some form of joint venture began, the following observations as to the conflicts between the plaintiffs’ pleadings and Jenkinson’s evidence are pertinent:
(1)At trial, Jenkinson departed somewhat from his pleading with respect to the first alleged agreement. He said that that agreement was reached in May 1994 and that the nine‑year term was then agreed upon to commence not (as pleaded) in March 1995, but “once the shop was ready”. He did not proffer a meaningful explanation for this departure, perhaps not surprisingly, as there was no obvious logic in a plan to begin the claimed nine‑year venture in ten months’ time. Pertinently, March 1995 was the time when the lease was secured, but as of May 1994 the parties were not to know that. It appeared to me that the plaintiffs’ pleading on this matter revealed an attempt to reconstruct.
(2)The plaintiffs’ pleading about the parties’ agreement to jointly occupy the retail space contained no allegation that this was to be dependent upon the parties obtaining proximate workshop space, whereas, in evidence, Jenkinson said it had always been so subject. Even so, on his account, the nine‑year period was to commence from the time when the shop was “ready”, not from such time as a proximate workshop space was located. Putting aside those apparent inconsistencies, a commencement from the time the shop became ready is at least consistent with his inability, during cross-examination, to identify any specific steps taken by him between 1994 and early 1995 to locate workshop/warehouse space.
(3)He was tested in cross‑examination on why a period of nine years was settled upon and said it was because “We wanted a longstanding relationship that was going to reflect our retailing ambitions and our other agreed propositions for the venture” (p.267). He wanted “long term security” (p.268) and the parties just happened upon nine years as “an appropriate and useful length of time for our ambitions” (p.268). It was, he said “the sort of term you see in real estate” (p.268), albeit that he was then quite unaware of the provisions of the Retail and Commercial Leases Act. I thought these explanations were feeble and unconvincing.
It is pertinent, then, to note that in February 1998 when Young told him to leave the shop, he did not assert he had a nine‑year right of occupancy – indeed, his only contention was (after speaking to Mahains) that he was entitled to a statutory five‑year lease.

I am satisfied that the defendant agreed, albeit reluctantly, to contribute to the ongoing costs of Tottman’s wages and that the plaintiffs were deprived of that contribution for the 178.5‑week period. Some attempt was made to suggest that Tottman undertook other duties at Glen Osmond Road of advantage to the plaintiffs, but I am satisfied that this was part of the reasonable mitigation undertaken and that it was nevertheless reasonable of the plaintiffs to keep her employed at those premises during opening hours similar to those at Magill. Over 178.5 weeks, this loss calculates at $26,775.
4. Time and effort of Jenkinson
Whilst I am satisfied that Jenkinson spent the hours asserted by him, namely, 264 hours, in relocating and establishing the Glen Osmond premises, I am not persuaded that he should be compensated for that lost time in toto, nor that the appropriate rate of compensation is $50 per hour, for these reasons:
(1)With respect to the lost time, as with the claim for relocation costs, it is probable, as I have found, that Jenkinson was always likely to have to spend a substantial amount of his own time at the end of the joint venture in December 2001 arranging a move and setting up new premises.
(2)The fact that Jenkinson pays subcontractors $50 per hour to repair and polish furniture, does not necessarily imply that he should recover that rate for the time he expended attending to the move or that he might not have procured removalists, sign writers, shopfitters, designers and so on for a lesser rate to do the work which he chose to do himself. I simply have no detail as to that.
In the end, it appears to me that the plaintiffs should be entitled to recover some damages for Jenkinson’s labour, for much the same reasons as I allowed a claim for relocation expenses. I am not, however, persuaded that it is a figure capable of precise calculation in the manner proposed by McPharlin at paragraphs 5.67 to 5.69.
I am persuaded that any loss would be incurred by the trust and that it should be compensated for having Jenkinson expend that time to the detriment of its business at an earlier time than might otherwise have been expected. I also take account of the slight possibility that he might never have had to expend it, anyway. Doing the best I can, I will allow a sum of $5,000 under this head, a loss incurred in about July 1998.
Summary of Damages Awarded
I then summarise these assessments as follows.
Damages Head  Award
Lost retail sales  Nil
Relocation costs  $15,000
Additional operating costs
. lost contribution to rent of workshop  $18,564
. lost contribution to outgoings of workshop  $6,069
. additional rent at Glen Osmond  $5,025
. lost contribution to outgoings at Glen Osmond              $5,891
. commuting costs  $4,500
. lost contribution to Tottman’s wages  $26,775
Time and effort of Jenkinson  $5,000
_______
$86,824
5.     Interest
I am satisfied the plaintiffs are entitled to simple interest on those various heads of damage in the range set out in McPharlin’s second report at page 39, but the period over which it should be awarded varies for each of the separate heads.
-Relocation costs were awarded on the footing that the plaintiffs were destined to incur such costs, anyway, but they had to pay them out prematurely and there was some allowance for the possibility the joint venture would have continued indefinitely and they might never have been incurred.
On that footing, I think it appropriate to award the plaintiffs interest on $15,000 at 6 per cent from 4 December 2001, an amount of $2,015.
-Additional operating costs of all kinds were incurred over a period of time between July 1998 and December 2001. They total $66,824. I will allow interest on their total for half the period to December 2001 at 6.5 per cent and otherwise, since then, at 6 per cent, an overall total of $16,418.
-Time and effort of Jenkinson was incurred in about July 1998 and I will allow interest since then, which I calculate at 6.25 per cent, a total of $1,772.
Grand Totals
Damages$86,824
Interest$20,205
________
$107,029
Less adjusted sum P1  $1,815
________
$105,214
There will be judgment for the plaintiffs for $105,214, inclusive of interest. The counterclaim is dismissed and I will hear the parties as to costs.

[2004] SADC 30

23 February 2004