French v Tyco New Zealand Limited HC Auckland CIV 2005 404 6895
[2008] NZHC 2401
•4 July 2008
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2005 404 6895
BETWEEN ANITA TONI FRENCH AND DARREN PETER ALBERT NICOLAI
Plaintiffs
ANDTYCO NEW ZEALAND LIMITED Defendant
Hearing: 19 June 2008
Counsel: Brett A Vautier for Plaintiffs
Iain Thain and Natalie Larnder for Defendant
Judgment: 4 July 2008 at 4:00pm
JUDGMENT OF WILLIAMS J
This judgment was delivered by
Hon. Justice Williams
on
Friday, 4 July 2008 at 4:00pm
pursuant to R 540(4) of the High Court Rules
……………………………..
Registrar/Deputy Registrar
Date: ……………………...
_
A. There will be judgment for the plaintiffs against the defendant for:
a) The sum of $A86,359.68 appearing in para [49] of the judgment;
b) The special damages listed in para [46](a) to (e);
c) Interest calculated in accordance with para [47] of this judgment;
d) With the exception of the allowance for electricity expenses, the sums for which judgment have been entered are in Australian currency and the judgment is to be paid in an amount in
FRENCH AND ANOR V TYCO NEW ZEALAND LIMITED HC AK CIV 2005 404 6895 4 July 2008
New Zealand currency sufficient to produce the total in
Australian currency at the date of payment.
B. Costs are to be dealt with as directed in para [48] (f) of this judgment.
TABLE OF CONTENTS
Paragraph
Introduction [1] Facts [4] Claim [6] Experts’ views [7] Observations on quantum [8] Submissions [10] Discussion and Decision [18] Expenses [46] Interest [47] Costs [48] Result [49]
Introduction
[1] In a reserved judgment in this claim delivered on 23 August 2007, the defendant, Tyco, was held liable to the plaintiffs, Ms French and Mr Nicolai, who trade on Norfolk Island as Avoca Mushrooms.
[2] However, although some observations on quantum were made in the judgment in order to try to assist the parties to resolve that issue, no final judgment on quantum proved possible.
[3] The parties were directed to confer in an endeavour to agree on quantum, but agreement eluded them and, after a number of telephone conferences with the parties and counsel (and a further reserved judgment delivered on 28 February 2008
declining the plaintiffs leave to call further evidence), the issue of quantum was argued at this hearing. This judgment deals with that topic.
Facts
[4] No more than brief recital of the facts is necessary since they were comprehensively reviewed in the 23 August 2007 judgment which is publicly available. For present purposes, it is sufficient to say that, in order to start in business, Avoca contracted with Tyco to buy machinery to assist in pasturising its mushroom crop. The machinery was purchased and installed by August 2003 and Avoca then set about producing mushrooms.
[5] They immediately encountered problems. These persisted despite a visit to Norfolk by a Tyco technician on 30 October-4 November 2003. That notwithstanding, the plaintiffs continued, without complaint to Tyco, until 10 August
2004. There were then delays on Tyco’s part in assisting Avoca. The plaintiffs engaged an expert who visited Avoca between 2-6 February 2005. He rapidly diagnosed their problem as a fan with too low a capacity to blow sufficient air through the compost during the pasturisation stage. Tyco agreed to provide a fan of adequate size. That was accepted by 14 February 2005. The new fan was delivered on 29 March 2005 and installed by 5 April. It corrected the problem.
Claim
[6] Avoca’s main claim was for loss of production, not loss of profits. More specifically, it was phrased (in $NZ) as:
Production shortfall from 1 November 2003 to 20 April 2005 calculated as follows:-
Expected production (based on 70% efficiency): 210 kilograms per week for 76 weeks at $18.25 per kilogram = $291,270.00 (‘expected production’).
Actual production (for the same period): 2,433 kilograms at $18.25 per kilogram = $44,402.25.
Expected production less actual production: $246,867.75.
Experts’ views
[7] Prior to the first hearing, the parties’ experts conferred and produced an agreed statement of facts which read:
Both experts agree that the fan initially supplied to the Plaintiff was inadequate for the purpose of Phase 2 composting. The fan could not develop sufficient static pressure to push the required volume of air through the mass of the compost.
The major cropping difficulties faced by the Plaintiff, a high level of pests, disease and poor production, is entirely consistent with inadequate Phase 2 composting resulting from the use of an under-sized fan in the bulk pasteurizing tunnel coupled with the need to use electric heaters in an attempt to compensate for a lack of air.
After the initial fan was replaced with a fan able to meet the static pressure required and deliver sufficient air to manage the Phase 2 composting process properly, the plaintiff’s mushroom production increased substantially.
On the basis of our mushroom growing experience, both experts agreed, all things being equal, that had a suitable fan be supplied from the start a production figure of 90 Kilograms of fresh mushrooms per tonne of Phase 1 compost filled would be a reasonable outcome for the Plaintiff’s operation over the first six months or so of operation. This figure was arrived at after giving due consideration to the unusual circumstances in relation to the remote location, with its limited range of composting raw materials, a new start up and the inexperience of the operators.
Both experts acknowledge that a complete mushroom cropping cycle is ten weeks and that throughout this period there are indicators which point to the likelihood or otherwise of a successful crop. Inexperienced growers, without any assistance, may not be able to discern problems as quickly as experienced growers. Both experts agree that an experienced commercial mushroom grower filling compost on a fortnightly basis, in a similar manner to the plaintiff, could be expected to identify quickly that a severe cropping problem exists and take early action to mitigate the effects. In any case, both experts acknowledge that to continue operating beyond ten weeks or five batches of compost in such a scenario with an unsolved severe cropping problem would result in severe economic loss and at the same time would expect the operator to seek external assistance.
Given the Plaintiff’s inexperience of commercial mushroom growing, the operation’s isolation and the confusion surrounding the pasteurizing tunnel’s fan capability, both experts agreed that it would have taken longer for the Plaintiff to realise that the operation was facing serious difficulties compared with an experienced grower. However, after the problems faced with the initial 8 batches of compost we would expect a reasonable operator to seek outside expertise at this stage, in the form of a mushroom consultant or ventilation expert or both.
From figures supplied by the Plaintiff, overall in the first 8 batches of compost a total of 28.985 tonnes of Phase 1 compost were filled into the pasteurizing tunnel, although conditions were not optimal. These
8 composts produced 528 Kilograms of fresh mushrooms.
At a cropping potential of 90 Kilograms of fresh mushrooms per tonne of Phase 1 compost filled the expected yield is 2 609 Kilograms of product. Given that the first 8 composts actually produced a yield of 528 Kilograms, this is a shortfall of 2 081 Kilograms of fresh mushrooms, which can be attributed to inadequate Phase 2 composting resulting from the incorrectly specified fan being supplied by the Defendant.
Observations on quantum
[8] The observations on quantum in the 23 August judgment presently relevant were:
[95] The plaintiffs’ claims … were in $NZ and were calculated on the plaintiffs being able to produce 300kgs of mushrooms per week at 70% efficiency, 210kgs per week, for each of the 76 weeks between 1 November
2003-20 April 2005. It appears they therefore claim on the basis they should have been able to produce 15,960kgs (210kgs pw for 76 weeks) during the claim period but only produced 2,433kgs and accordingly must be claiming for the deficiency, 13,527kgs. However, their production overview for batches 1-33 inclusive for the whole of the claim period showed they expected to harvest 6,982kgs of mushrooms (at 2kgs per 10kg bag of compost) but their actual yield was 2,760.6kgs, a deficiency of 4,221.4kgs. The experts’ figures appear to differ again. Those differences plainly require explanation.
[96] A number of additional observations require to be noted as far as the claim is concerned:
a)It was agreed that Norfolk is a closed economy for fresh fruit and vegetables. Neither importing nor exporting of such commodities is permitted. …
b)… the plaintiffs have an effective monopoly on fresh mushrooms for the Norfolk market.
c)The claim was calculated on the basis that the plaintiffs had and could have sold all their mushroom crop at $A16 per kg (translated to $18.25 per kg in $NZD at the rate of exchange current when the claim was filed). That is a high price per kg but there was no dispute during the hearing that the plaintiffs had sold and would have been able to sell their entire crop at that price during the claim period.
[9] Then, after holding inadmissible the evidence that Avoca’s maximum possible harvest was 300kg per week gross, the judgment continued:
[103] The plaintiffs’ production overview of their performance with the new fan – probably the most reliable indicator of their likely performance during the claim period had adequate equipment been supplied – was that in batches 34-49 inclusive, 20 April 2005 to December 2006, their actual yield was 5,971.7kgs or, over that 88 week period, 67.86kgs per week.
[104] That may be contrasted with the operation overview figures for the yield from batches 1-25 inclusive, those batches processed during the
76 week claim period, of 2,760.6kgs or 36.33kgs per week.
[105] If that comparison is valid, during the claim period Avoca lost the difference in production between those two figures, 31.53kgs per week or
2,396.28kgs over the claim period, amounting, at Avoca’s constant sale price
of $A16 per kg, to $A38,340.48 before deductions for Avoca’s failure to mitigate.
[106] The plaintiffs have been held to have failed to mitigate their loss for about half the 39 week period from 12 November 2003-10 August 2004. Batches 3-20 inclusive, those produced during that period, would appear to have yielded the plaintiffs a total of 1,832.6kgs or 47kgs weekly. As against the average actual production of 67.86kgs per week achieved during the period after 20 April 2005, the amount by which the plaintiffs’ notional production during the 12 November 2003 – 10 August 2004 period exceeded actual production was 20.86kgs per week, giving a loss over that 39 week period if this approach is valid of 813.54kgs, approximately half of which at
$A16, $A6511.52 should be deducted from Avoca’s losses giving a net loss to Avoca on this method of calculation of $A31,828.96.
[107] However, those calculations are patently speculative and may not be the appropriate measure of the plaintiffs’ loss for at least three main reasons.
[108] The first is that the differential of 31.53kgs p.w. is not the equivalent of loss per batch of compost processed. Processing each batch of compost to completion of its harvest takes 10 weeks and accordingly the tentative figures just discussed may not accurately reflect Avoca’s gross and net losses.
[109] Following on from that, the second point is that the experts’ measure of production potential was based on a kg yield of fresh mushrooms per tonne of phase 1 compost. Although that method of calculation appears suspect if for no other reason than it depends on how many batches of compost are processed within a given period, the possibility cannot be discounted that the experts’ measure may be one adopted in the mushroom growing industry for production loss calculations.
[110] The third reason for taking the view that a straightforward comparison between the expected yield and actual yield over the claim period and the subsequent period may not be the appropriate measure may lie in the question of efficiency.
[111] The evidence did not discuss in any detail the concept of efficiency (or a reduction in expected yield for inefficiency) beyond a certain amount of evidence suggesting the industry norm is that expected production is reduced by a percentage, presumably to cover such matters as disease and other production factors affecting yield. Presumably production loss
calculations in the mushroom growing industry are based on saleable yields, that is to say the net production following allowance for the factors mentioned, but, even if such is the case, there was a difference in view as to the appropriate percentage reduction. Mr Harper’s figure as reflected in the claim was that 70% efficiency was appropriate. In evidence, Ms French was disposed to accept that 65% efficiency was appropriate. But Dr Martin estimated Avoca’s likely yield during the period to April 2005 with an adequate fan at 80-100kgs of fresh mushrooms per tonne of raw phase 1 compost for about the first year of operation with that figure then rising with greater experience and skill to the average 123kgs per tonne of phase 1 compost they have achieved since the replacement fan was installed. The
123kgs figure was, he thought, in the plaintiffs’ circumstances a reasonable level of production not likely to increase much in the future. Plainly those differences also require explanation.
Submissions
[10] The plaintiffs were represented by counsel up until just before trial but, for reasons of cost, Ms French conducted the plaintiffs’ case at trial. As recorded in the judgment, she did so competently, though, of course, her ability to assist with legal matters concerning both liability and quantum was limited.
[11] After the 23 August judgment was delivered, the plaintiffs instructed new counsel, Mr Vautier, and it was he who conducted the quantum hearing on their behalf. Mr Vautier submitted the correct approach to calculating Avoca’s production shortfall should be based on the quantity of mushrooms produced during the claimed period per tonne of compost processed. Comparison with production per batch was, he submitted, the incorrect measure of Avoca’s loss because the rate of processing batches of mushrooms declined once the yield per batch increased following installation of the correct fan.
[12] He carefully analysed the weight of mushrooms produced from each tonne of compost processed during the claimed period by contrast with the production per tonne which the experts said might have been achievable by the plaintiffs.
[13] For Tyco, Mr Thain, its leading counsel, approached the issue differently.
[14] He observed, correctly, that quantum was to be calculated in accordance with s 6(1)(a) of the Contractual Remedies Act 1979 which, he submitted, was the
difference between the income achieved by the plaintiffs during the claim period as contrasted with the income they would have received had an adequate fan been originally supplied, less 30.3% for their failure to mitigate in respect of 10 of the 33 batches produced during that period. He submitted the most appropriate comparator for possible production during the claim period was that achieved during a similar period after the replacement fan was installed, but suggested a further deduction was appropriate for the plaintiffs’ initial unfamiliarity and inexperience in mushroom growing.
[15] Mr Thain made the point the onus lay with the plaintiffs to adduce sufficient evidence to enable quantum to be assessed (McGregor on Damages (17th ed) 2003, para 44-001, p 1593 and cases there cited).
[16] Mr Thain stressed that, from the outset, the evidence was that the plaintiffs intended to process one batch of mushrooms per month and only doubled that rate to try to achieve production of anywhere near their intended output. After the replacement fan was installed, the next 16 batches – batches 34-49 – were produced between June 2005-December 2006, that is to say, about monthly. Further, in the period following installation of the replacement fan, the plaintiffs continued to process about the same weight of compost as in batches 1-33.
[17] The gross production shortfall, Mr Thain submitted, should then be discounted for inefficiency and, in the early part of the claim period, for inexperience. He therefore submitted that, with an adequate fan, the plaintiffs would have produced about 90kg of mushrooms per tonne of compost in the first six months; about 100kg per tonne in the second six months; and an average of about
111.5kg per tonne for the remainder of the period. After the claim period, the rate of production averaged 123kg per tonne.
Discussion and decision
[18] In essence, the difference between the approaches of counsel renders down to whether Avoca’s production loss is properly calculable over the claim period on the
basis of loss of production per batch or loss of production per tonne of compost processed.
[19] In the “patently speculative” observations made in the 23 August 2007 judgment designed to try to assist the parties to resolve issues of quantum without the delays and costs of a further hearing, one approach suggested was that the total production over the 88 week period, 20 April 2005-December 2006, could perhaps provide the best indication of the production the plaintiffs might have achieved during the claim period with an adequate fan. Further reflection, however, leads to the view that production during that time cannot provide the best measure of the plaintiffs’ loss during the claim period.
[20] That conclusion is reached for a number of reasons.
[21] The first of those is that 16 batches were processed over that 88 week period or one every 5.5 weeks. By contrast, during the 76 weeks of the claim period,
33 batches were produced or one every 2.3 weeks. That difference in rate alters production results and reduces comparability.
[22] Secondly, as mentioned in the 23 August 2007 judgment, it appears the industry standard of measurement for production or production loss is calculated in production per tonne of compost processed, not on a per batch basis. That seems not unreasonable given that, although each pasteurization tunnel has, obviously enough, a maximum weight of compost processable in any batch, the actual weight of compost loaded into the pasteurization tunnel will vary from batch to batch, as will the resultant production.
[23] A third reason for adopting that measure in this case is that, as earlier noted, Avoca was in the fortunate position of being able to sell its entire production of whatever weight - reduced by the initial fan’s inadequacies or otherwise - at a standing and unvarying $A16 per kg. There was no evidence of unsatisfied demand, excess production, or change in their achievable sale price. That means that the number of batches and the production recedes in importance since the total production, irrespective of the number of batches, was sold.
[24] Fourthly, mushroom production is a continuous process with batches at various stages all the time. Working off production and sales achieved avoids the difficulty of trying to calculate expected production per tonne of compost when the tonnages vary, there are numerous harvests (or “flushes”) during the 10 week cycle of each batch, and the continuous process means there is overlapping at each end of the claim period.
[25] For all those reasons, it is therefore more appropriate to adopt the approach to calculating the plaintiffs’ production loss for which Mr Vautier argued than the approach pressed by Mr Thain.
[26] For all the reasons discussed throughout this judgment, it remains the case that assessing the plaintiffs’ production loss is not at all a simple or straightforward task. Thus, while a precise figure for the total loss results, it is an assessment based on the evidence available – evidence which was incomplete in certain respects – and thus the assessment produces the best estimate accepting that it may slightly over- state or under-state the plaintiffs’ loss.
[27] The 23 August judgment held the plaintiffs entitled to compensation for batches 1-10 and 21-33 inclusive of those processed during the claim period, with production lost during batches 11-20 inclusive being held irrecoverable for the plaintiffs’ failure to mitigate their loss.
[28] However, because, first, the experts calculated production loss per tonne of compost processed; secondly, because Avoca’s production summary listed production on a daily basis during the claim period but did not appear to list the dates on which each production run commenced; and, thirdly, because there did not appear to be a direct correlation between batches and time, to calculate the production loss, excluding that part of the claim period for which the plaintiffs are not entitled to recover, it is helpful to set out the plaintiffs’ unchallenged mushroom production summary (though substituting in the September 2004 figures, the crop weight and value taken from the daily production sheets, 154.2kg and $A2467.20 respectively, for what would seem clearly to be the erroneous figures in the summary). It reads:
2003
MONTH
KGS
$VALUE
(in $AUD)
NOV
31.5
504.00
DEC
111.6
1,785.60
2004
MONTH
KGS
$VALUE
JAN
64.7
1035.20
FEB
162.3
2596.80
MAR
41.2
659.20
APRIL
116.5
1864.00
MAY
414.9
6638.40
JUNE
295.4
4726.40
JUL
281.2
4499.20
AUG
154.2
2467.20
SEP
154.2
2467.20
OCT
154.3
2468.80
NOV
138.5
2216.00
DEC
129.4
2070.40
2005
MONTH
KGS
$VALUE
JAN
84.7
1355.20
FEB
46.9
750.40
MAR
38.4
614.40
APR
88.7
1419.20
[29] It is next of assistance to recount the following passage from Dr Martin’s brief:
… with an adequate fan, but all other things being equal, the plaintiffs would likely to have been able to produce an average of between 80 and 100kg of fresh mushrooms per tonne of raw phase 1 compost in the initial period of say a year from the outset of their operation. After that initial period, as their experience and skill levels grew the plaintiffs’ production rate would have increased gradually to the average 123kg per tonne of phase 1 compost that they are now in fact achieving.
[30] The experts expressly addressed Avoca’s loss for batches 1-8 at 2081kg net which, at $A16 per kg, amounts to a loss to Avoca of $A33,296.00, subject to what later appears.
[31] Totalling the production from the summary, it is evident that the 528kg yield from the first 8 composts discussed by the experts shows that total was reached by the end of April 2004.
[32] The claim period began on 1 November 2003. For the first six months of operation, having regard to the factors mentioned by the experts, production of 90kg per tonne – averaging the 80-100 kg mentioned in Dr Martin’s brief – was to be expected, with that rate continuing to the end of the first year of operation, i.e.
1 November 2004.
[33] The corrected production summary shows that in and from May-October
2004 inclusive the plaintiffs’ production totalled 1454.2kg.
[34] However, as discussed in the earlier judgment, Ms French telephoned Tyco on 10 August 2004 blaming Tyco for Avoca’s reduced production. That terminated the period for which they were held to have failed to mitigate their loss. They were thus deprived of the right to recover for the 10 batches processed prior to that date, numbers 11-20 inclusive.
[35] Evidence also showed that, in order to try to achieve sufficient production to meet their captive market, during the claim period, the plaintiffs effectively doubled the number of batches processed to, as the calculations earlier recounted showed, one
every 2.3 weeks. Counting backwards for 23 weeks (10 batches x 2.3 weeks) from
10 August 2004 means the plaintiffs are unable to recover for the period commencing on 23 March 2004 and ending on the date of the phone call.
[36] At, essentially, a batch per fortnight, that means the plaintiffs are unable to recover for the eighth of the first 8 composts specifically discussed by the experts. The returns over the first 8 composts per batch showed each produced on average
260.12kg (2081kg ÷ 8) worth $A4161.92. Subtracting that batch as part of the irrecoverable period from the $A33,296 earlier mentioned gives the plaintiffs a net loss of $A29,134.08 for the whole of the period 1 November 2003-10 August 2004.
[37] The failure to mitigate loss period ceased on 10 August 2004, effectively one- third of the way through the month. The two-thirds of the month for which the plaintiffs are entitled to recover gives them a recoverable production of 102.8kg for August which, when coupled with the actual production for September and October, gives them a production of 411.3kg (102.8 + 154.2 + 154.3kg) for the balance of the first year.
[38] 10 August 2004-1 November 2004 is approximately 11 weeks which, at one batch per 2.3 weeks, indicates they would have processed 4.8 batches during that period. The detailed overview figures for the 4.8 batches 21-24.8 inclusive show they utilised 16,680kg of compost during that period (3600 + 3400 + 3200 + 3600
+ 80% of 3600 (2880) kg). At 90kg per tonne that, with an adequate fan, would have been likely to have produced 1501.2kg. Deducting their actual production during that period of 411.3kg gives them a net production loss for that part of the claim period of 1089.9kg worth $A17,438.40. The plaintiffs are entitled to judgment against the defendants for that sum for that period.
[39] According to Dr Martin, for the balance of the claim period, 1 November
2004-20 April 2005 (effectively 25 weeks) they could have expected to harvest
123 kg of mushrooms per tonne of compost. The 8.2 batches processed during this period utilised 33,153kg of compost (720 (20% of 3600) + 3400 + 3400 + 3400 +
3000 + 3800 + 3200 + 3000 + 5500 + 3733.3 (⅔ of 5600 kg)). The plaintiffs produced over that 5.6 month period a total of 497kg of mushrooms. The expected
yield from 33.153 tonnes of compost at 90kg per tonne is 2983.7 tonnes worth
$A47,739.20. Instead they harvested 497kg of mushrooms worth $A7952 during this period, giving them a net loss for this part of the claim period of $A39,787.20. The plaintiffs are entitled to judgment for that sum.
[40] The value of the plaintiffs’ total loss production – the totals in paras [35], [37] and [38] above – therefore equals $A86,359.68, and the plaintiffs are entitled to judgment against the defendant for that sum for the lost production claim.
[41] As far as a further deduction for inexperience is concerned, in part that is accounted for by the fact the claim period does not begin until 1 November 2003, a couple of months after the plaintiffs’ operation began and when they were engaged in batch 3 with the technician’s help.
[42] According to the experts, their inexperience may have resulted in reduced production but they do not assist by calculating by how much. Their report that the first 8 composts produced 528kg and a shortfall of 2081kg from what was forecast relates specifically to supply of the inadequate fan. Although they note that mushroom growing is difficult, it is likely that more of the shortfall should be attributed to the inadequate fan than to the plaintiffs’ inexperience, but it is very difficult to calculate how much should be allocated to each.
[43] In fact, the plaintiffs’ monthly production for the six months November
2003-April 2004 inclusive totals 527.8kg, almost exactly the expert’s yield from the first 8 composts. Thus the monthly production almost exactly equals the number of batches using a total of 29.985 tonnes of compost over that six month period.
[44] In the end, it has been decided to make no further deduction for the plaintiffs’ inexperience. This is for several reasons. The first is that part of the period of their inexperienced production is not claimed for. Secondly, the evidence was that, despite their inexperience, the plaintiffs were able to sell their entire production from the outset and at a steady price. Their inexperience accordingly penalized their rate of production but not their sales. Put another way, their loss of production in the early part of the claim period resulted from two factors – inexperience and an
inadequate fan – and both are bound up in the figures for production achieved, but it is not possible to separate them out. Of the two factors, inexperience is likely to be very much the lesser contributor, particularly given the double production runs, and since precise calculation is impossible, for all the reasons mentioned no material injustice is done to the defendant by adopting the approach just outlined.
[45] For much the same reasons, working off actual weights produced rather than expected production per tonne of compost, means no reduction for efficiency (or inefficiency) needs to be taken into account since that automatically flows into the production and sales achieved.
Expenses
[46] It is pertinent to record the position on the special damages claimed, as follows:
a) The parties agreed the defendant should pay the plaintiffs Mr Harper’s fees and disbursements of $A3300 and Mr Dixon’s travel and accommodation of $A2000;
b)The parties agreed the amount payable for electrical services is for the two invoices of $A186.70 and $A71.40;
c) The agreed amount payable for engineering services is $A614.45;
d)Electricity expenses: the sum mentioned in the 23 August judgment as agreed was in fact the amount to which the original claim had been agreed to be reduced. The actual amount payable is agreed at
$NZ3485;
e) Disbursements and toll calls are agreed at $A342.69.
Interest
[47] Interest is payable at 7.5% p.a. from 1 July 2008 and at 8.4% thereafter until payment. Although the loss of production incurred prior to 20 April 2005, the end of the claim period, and the expenses were also incurred – and may have been paid – during that period, it is considered that fairness in the round dictates that the commencement period for interest should be 20 April 2005. Justice will therefore be served if the commencement date for interest on all items is fixed at that date.
Costs
[48] Mr Thain submitted costs, disbursements and witnesses’ fees, should be determined following delivery of this judgment and when counsel have had an opportunity to file memoranda on the topic. That is agreed, although the observation is made that the disbursements in para 4.5 of Mr Vautier’s memorandum may well be held payable by the defendant.
Result
[49] In the result there will be judgment for the plaintiffs against the defendant for:
a) The sum of $A86,359.68 appearing in para [39] of this judgment;
b) The special damages listed in para [48](a) - (e);
c) Interest calculated in accordance with para [49] of this judgment;
d)With the exception of the allowance for electricity, the sums for which judgment have been entered are in Australian currency and the judgment is to be paid in an amount in New Zealand currency sufficient to produce the total in Australian currency at the date of payment. Unless the parties agree otherwise there seems to be no
reason why payment of the judgment sum should be delayed while costs are fixed;
e) Leave is reserved to the parties to apply if any arithmetical correction is required.
f) If the parties are unable to agree on costs, memoranda may be filed (maximum 10 pages) with that from the plaintiffs being due 28 days after delivery of this judgment and that from the defendant within 35 days and with counsel certifying, if they consider it appropriate so to do, that all issues of costs can be adjudicated upon without further hearing.
…………………………..
WILLIAMS J.
Solicitors:
Glaister Ennor, PO Box 63, Auckland
DLA Phillips Fox, PO Box 160, Auckland
Copy for:
Case Officer: Indra Gamage
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