M A & J Tripodi Pty Ltd v Swan Hill Chemicals Pty Ltd

2 Since about 1999, through Tripodi, Michael has conducted the business effectively in partnership with his wife, Janine (more commonly known as Jina).

3 While the primary focus of the farm remains stone fruit, in about 2010, Michael and Jina decided to diversify the business and bought an additional 300 acres intending to use approximately one-third to grow fruit for export and the balance to grow other crops. After conducting a trial of growing borlotti beans on black mulch plastic, Michael and Jina decided to expand this production. Tripodi bought machinery to pick and process the borlotti beans crop and leased approximately 200 acres from Craig Burrell ("Burrell") to grow borlotti beans.

4 The defendant ("SHC") conducted business as a supplier of chemicals and other materials commonly required by farmers in running their farms.

5 Tripodi alleges that Michael had relied on advice and guidance from SHC since about 1992 regarding what chemicals to use in the production of the stone fruit, whether it be fertilising the soil or protecting the fruit trees from pests, insects or fungus. As a result, Tripodi spent substantial sums of money each year with SHC on herbicides, pesticides, insecticides and other chemicals. Part of the service which SHC offered was frequent attendance at the Tripodi orchard to monitor the health and well-being of the fruit trees.

6 Tripodi says that when it decided to grow borlotti beans commercially, it sought advice from SHC about the appropriate chemicals to use to protect the crop. Tripodi claims that the chemicals recommended by SHC were not suitable for the task. Some chemicals allegedly killed the bean plantings. In other plantings, due to the deadly results upon the crop, Tripodi used no pre-emergent herbicide and the plantings were overwhelmed by weeds. Ultimately, only some of the borlotti beans plantings were successful and produced a good crop of beans. As a result of the problems experienced due to the conduct and advice of SHC, Tripodi says that it suffered substantial losses. Tripodi says that it was unable to honour an agreement to supply beans to Woolworths and lost approximately $4.2 million. This includes past and future losses.

7 SHC denies that it advised Tripodi that the pre-emergent herbicides it used were suitable. The primary SHC person who dealt with Tripodi was Brian Cumming ("Cumming"). Cumming says he informed Michael that there was no authorised herbicide in Victoria for use with borlotti beans and it would be best to do a trial before spraying a whole crop. SHC also disputes that the pre-emergent herbicides used were responsible in a legal sense for the demise of parts of the crop. SHC says that the "summer death" virus was the responsible agent for much of the losses suffered and, if the first and second plantings had survived the pre-emergent herbicides, the virus would probably have destroyed those plantings in any event. SHC says that the person who supplied the seed to Tripodi warned Michael to be wary of the summer death virus. As a result, SHC contends that regardless of the pre-emergent herbicide used, the bean crops would have been largely destroyed due to the summer death virus.

8 SHC also contests the quantum of the claim. Tripodi claimed that there was a contract on foot between itself and Woolworths to supply shelled borlotti beans in commercial quantities. SHC denied that there were any contractual arrangements in place between Tripodi and Woolworths whereby Tripodi agreed to sell, and Woolworths agreed to buy, any particular quantity of beans at any particular price -whether it be $13.20 per kilogram or some other price. SHC submitted that Woolworths required Tripodi to demonstrate their reliability by supplying green shelled peas on a consistent basis. Only if this trial product performed successfully would Woolworths contemplate ongoing commercial dealings with Tripodi for the sale of borlotti beans.

9 SHC also contended that there was no factual or legal basis for the plaintiff's claim that the defendant should be liable for losses sustained in respect of growing seasons as far away as 2017 and 2018.

10 When severe flooding affected crops in Queensland around 2010, Tripodi decided to investigate whether it could fill this resultant gap in the market by running a trial growing capsicum and borlotti beans in the 2010/2011 season.

11 Tripodi undertook a test-planting on about 5 hectares in January 2010. SHC provided the seeds for this test planting. Because SHC did not have enough borlotti bean and capsicum seeds, the plaintiff also grew green stringless and yellow butter beans during this trial planting. The capsicums were not successful. However, the borlotti beans were successful, producing about 5 tonnes of borlotti beans per hectare. These beans were harvested manually and sold in their shell to the wholesale markets.

12 Manual harvesting was time consuming and expensive. Accordingly, Michael investigated mechanical harvesting options.

13 After viewing mechanical harvesters in action in Italy in 2011, Michael and Jina purchased two FMC 979 mechanical harvesters. These harvesters were usually used for harvesting peas. However, with some modification, this harvester would both pick and shell the borlotti beans.

14 In addition to purchasing two harvesters, Tripodi also purchased packaging and sorting equipment, with a view to producing shelled borlotti beans directly to the market. Ultimately Tripodi spent about $3 million on purchasing the picking, processing and packaging equipment.

15 Between about late October 2011 and January 2012, Michael and Jina conducted a second test planting for further research and development purposes. The second test planting was larger, comprising seven separate crop plantings being on a portion of land at the Lake Boga property known as Plum Valley.

16 In October 2011, Michael and Jina also engaged Lisa Cork ("Cork"), a director of Fresh Produce Marketing Limited to commence brand development and marketing activities for Tripodi. The aim was to produce a full range of different products including freshly shelled peas, cannellini beans, kidney beans, a pea and corn mix and freshly shelled borlotti beans.

17 In August 2011 Tripodi purchased 3.5 tonnes of borlotti bean seeds from Sunland Seeds Pty Ltd ("Sunland Seeds") for the second test planting.

18 The first crop of the second test planting was planted in late October 2011. It was irrigated using a trickle tape irrigation system. Because of this, no pre-emergent herbicide was applied to the crop to prevent weed growth.

19 A pre-emergent herbicide is applied to crops before they are sown and/or before they emerge as seedlings. A post-emergent herbicide is applied to plants after they have reached a certain stage of growth (depending on the herbicide in question).

20 On or about 28 October 2011, Michael telephoned Chris Smith ("Smith"), an employee at Sunland Seeds, requesting advice on what herbicides other borlotti bean growers in Australia were using. By email dated 28 October 2011, Smith recommended using:

21 On 4 November 2011, Michael forwarded Smith's email to Cumming. Cumming recommended that if weeds began to grow, the borlotti bean crops should be treated with Basagran.

22 On 21 November 2011, Cumming delivered the Basagran to Tripodi for this purpose. Basagran was applied to the first, second and third crops of the second test planting. It had the requisite effect on the weeds, with little or no damage to the borlotti beans. Because there was not a lot of weed pressure on these first three crops, it was used "as required". The Basagran was applied at approximately the fourth to sixth leaf stage of the plants.

23 In about December 2011 Smith met with Michael at the Lake Boga property to inspect the crop. Michael noticed that 1-2% of the crop had died. Smith said he thought it could be the disease known as summer death.

24 Summer death is a virus that attacks and kills crops. It is carried by infected leaf hopper insects, which inject the virus into the plant. The disease progresses quickly, and its first signs include a downward curling of the plant's leaves. The disease is highly infectious, but can only be transmitted from plant to plant by infected insects.

25 Due to increased rain in the Swan Hill area in early February 2012, weeds known as fat hen and caltrop began to grow in the fourth crop of the trial planting. Accordingly, Cumming examined the land and recommended using Basagran at a rate of 2.5 litres per hectare. Cumming delivered the Basagran to Michael on 7 February. Michael sprayed the crops with Basagran between 7 - 10 February. This failed to kill the caltrop and fat hen, but killed other weeds that had grown throughout the crops. Accordingly, after further discussions with Cumming, Michael knifed between the rows of crops to kill the weeds. The knifing controlled around 80% of the weeds, but did not kill all of the caltrop.

26 The first five crops of the second test planting were used strictly for research and development purposes. They were harvested with the mechanical harvesters and sorted and packaged using the newly equipped production line. The last two crops were picked by hand and sold to the wholesale market.

27 Following the second test planting, Michael decided that he wanted to use a solid-set irrigation system, rather than trickle tape. He asked another local farmer, Craig Burrell for costing advice, as he knew that Burrell had a solid-set irrigation system on his land at Beverford ("the Beverford property"). The upshot of this conversation was that in mid-April 2012, Burrell agreed to lease 200 acres of land at the Beverford property to Tripodi, for $1500 per month. The lease was never documented, and was a handshake agreement.

28 In about July 2012 Tripodi, at a cost of about $28,000, engaged Burrell to prepare the land for the bean crop by discing, mulboring and spraying.

29 Michael also investigated other farmers who could produce crops for the plaintiff, so that it could provide a continuous supply of product all year round. Tripodi engaged Andrew Jackwitz, a farmer at Low Wood in Queensland, to grow peas for the plaintiff and, following an introduction from Smith, engaged Nelson Cox to grow peas and borlotti beans in Bairnsdale.

30 In May 2012, Michael approached Anthony Klatt ("Klatt"), head of produce at Woolworths, to enquire about the sale of produce from the anticipated 2012/13 season.

31 On about 2 July 2012, Michael, Jina and Lisa Cork met with Klatt and Mario Saad ("Saad"), a category manager of Woolworths to present their 'Edible Gems' range. Tripodi offered to supply peas and borlotti beans to Woolworths, but also discussed other products, such as cannellini, kidney, flageolet and broad beans, which it was proposing to produce. By using additional farmers, Tripodi planned to supply peas for nine months per year, and borlotti beans for six months per year.

32 Following the Woolworths meeting in early July 2012, in mid-July 2012 Tripodi, through Michael, informed Cumming of the proposed sale of freshly shelled borlotti beans to Woolworths. Michael said that he needed Cumming out on the Beverford property doing "his normal agronomy work". According to Michael, Cumming said he understood and would be on the Beverford property once a week.[1]

33 Between about July and November 2012, Burrell prepared the Beverford land for planting. This included discing, ripping and mulboring the land to remove weeds and to ensure that the ground was ready for planting. It also included spraying 'Roundup' herbicide on the land.

34 On 17 September 2012, Tripodi engaged Kevin Chaffey to work the Beverford property as a farm hand. Chaffey was previously an employee at SHC.

35 On 2 October 2012, Tripodi and Woolworths executed the Vendor Trading Terms. These were drafted by Woolworths and set out the terms on which Tripodi would be a supplier of product to Woolworths.

36 On 25 October 2012, Chaffey also started working up the Beverford property in preparation for the first plantings.

37 The parties agree that Tripodi undertook the plantings of the borlotti bean crops on the following dates:

38 The day before the First Planting, Cumming informed Michael that there was no herbicide registered for use with borlotti beans. Accordingly, he recommended using a broadacre herbicide called Mentor. Cumming delivered 2.5kg of Mentor to the Beverford property.

39 Cumming calculated the application rate of Mentor and wrote this recommendation on the label of the Mentor container. This recommendation was also recorded by Chaffey in his diary. Cumming recommended that Tripodi irrigate the planting for three hours.

40 Chaffey applied the Mentor to the First Planting and irrigated the First Planting for three hours.

41 On about 18 or 19 November 2012, during a telephone conversation between Cumming and Tripodi, Cumming advised that, instead of irrigating the Second Planting for three hours as had been done with the First Planting, the Second Planting should be irrigated 1.5 hours before sowing and for a further 1.5 hours after sowing. Further, on 23 November 2012, Cumming told Chaffey to apply Mentor to half of the Second Planting, and another herbicide, Terbyne, to the other half of the Second Planting. He also instructed him to apply a greater amount of Mentor - at the increased rate of 340g /400L.[2] Chaffey followed each of these new instructions.

42 On 27 November 2012 Chaffey noticed that some of the plants in the First Planting were "silvering off" - the leaves were turning from green to silver. On 28 November, Chaffey inspected the First Planting again, and noticed that it had worsened. On the same day, Cumming inspected the First Planting for insects. He also examined some of the plant roots. By about 29 or 30 November 2012, at least 50% of the First Planting had died and a further 30% was showing signs of silvering.

43 On 3 December 2012, the Second Planting was showing signs of silvering off.

44 Between about 4 - 5 December 2012, Chaffey completed the Third Planting.

45 On 6 December 2012, Michael conducted a further inspection of the First Planting, and decided it was unsalvageable and instructed Chaffey to plough it into the ground.

46 On or about 14 December 2012 Michael decided that the Second Planting was unsalvageable and directed Chaffey to plough it back into the ground.

47 On 17 December 2012, Chaffey completed the Fourth Planting.

48 On 21 December 2012 Chaffey sowed the Fifth Planting. Later in December, he sowed the Sixth Planting.

49 In mid-December 2012, Michael contacted Nelson Cox, who told him that he had used Dual Gold as a pre-emergent for years. Michael told Cumming that he wanted to use Dual Gold for the next borlotti bean plantings. Accordingly, on 22 December 2012, Tripodi purchased Dual Gold from SHC.

50 Around late December 2012, Gary Jeans (a part owner of SHC) recommended that Michael put sticky traps at certain locations in the bean crop to determine whether any and what insects were present. Jeans attended the Beverford property and laid the traps. Michael was instructed to bring the traps back to SHC the following week.

51 Neither Mentor nor Terbyne was applied to the Third, Fourth, Fifth, Sixth, Seventh or Eighth Plantings.

52 On 28 December 2012, Chaffey applied Dual Gold to the Sixth Planting. He only applied it to about half of the Sixth Planting due to wind. The Sixth Planting resulted in a healthy crop of beans.

53 On 31 December 2012, Chaffey returned the sticky traps placed on the Third Planting to the SHC. They identified thrip and other bugs on the traps. As a result, Jeans swept the Fourth Planting with a sweep net. Afterwards, Chaffey, Matthew Earle of SHC and Jeans attended SHC's office, where Chaffey was provided with a paddock inspection form, together with a list of further recommended insecticides to use on the land.

54 In late December, according to Tripodi, the weed pressure on the Third, Fourth and Fifth Plantings increased and some plantings began to die in early January 2013.

55 On 1 January 2013 Michael applied the recommended insecticides to control various insects, including the brown leafhopper.

56 On 3 January 2013 Chaffey re-sowed the land used for the First Planting (the Seventh Planting). This planting was unsuccessful, with the crops dying as they did in the First Planting.

57 Between 10 - 15 January 2013, Cumming took samples of soil and crops from the Beverford property and sent them for treating to Denis Persely, a plant pathologist at the Queensland Department of Agriculture, Fisheries and Forestry.

58 On 15 January 2013 Chaffey sowed the Eighth Planting. On 18 January, Dual Gold was applied to this planting.

59 On 23 January 2013 Chaffey sowed the Ninth Planting. On 24 January, Dual Gold was applied to this planting.

60 On 29 January 2013, 31 January 2013 and 6 February 2013 respectively, Chaffey sowed the Tenth, Eleventh and Twelfth plantings.

61 The Sixth, Eighth, Ninth, Tenth, Eleventh and Twelfth Plantings were successful. However, the produce from these plantings could not be sold to Woolworths because it required a continuous supply of 12 weeks from its farmers and Tripodi's supply was too limited.

62 On the recommendation of Burrell, in January 2013 Tripodi engaged Tony Kourmouzis from Red Earth Agricultural consultants to take a sample of the borlotti bean seed for testing by Crop Health Service.

63 From around early 2013 the plaintiff discontinued its dealings with SHC and engaged Stephen Lorimer of HE Muir & Sons for agronomy services. In early March 2013, Michael attended SHC's offices to pay the weekly account, and Cumming informed Michael that he was no longer their agronomist.

64 By email dated 18 July 2013 from Klatt to Tripodi (copying in Chris Chase, a Woolworths Business Support Manager), Woolworths agreed to purchase 5,000kg of freshly shelled peas per week in cartons of 5 at a cost of $3.30 per unit. It agreed to purchase on the following terms:

• Stock be delivered to agreed distribution centres in accordance with Woolworths' specifications;

• Shelled peas and new products as listed in the presentation be exclusive to Woolworths for one year;

• Woolworths have the first right of future exclusivity on the provision of future order commitments;

• In addition to its termination rights specified in the Vendor Trading Terms, Woolworths could immediately terminate the Memorandum of Understanding where, over a rolling 13 week period, the delivery to the distribution centre was lower than 90% or where, over a four week period, the fulfilment rate was lower than 80%.

65 On 16 August 2013, Tripodi filed the writ in this proceeding.

66 Between 2013 and 1 January 2014, Tripodi provided freshly shelled peas to Woolworths. Various issues arose with the pea deliveries, including inaccurate weight, failure to be free of foreign matter, inconsistent "best before" dates, and shelf life and appearance not meeting the required standard.

67 On 8 December 2013, Woolworths advised that that it would be removing the Edible Gems peas from stores until the product met the Woolworths specification. The plaintiff continued to supply peas until 1 January 2014, and then commenced various remedial procedures to meet Woolworth's demands.

68 Ultimately, Tripodi was unable to supply peas in 2014, as crops were destroyed through an error in the application of chemicals.

69 At the beginning of the trial the parties were asked to submit a statement of the issues to be decided by the court. Based on that document, the issues to be decided are as follows:

(a) Was there a retainer between Tripodi and SHC for the provision of advice as to appropriate pre-emergent herbicides to apply to the 2012-13 borlotti crop, as well as the health of the crop generally? If yes, did SHC breach its retainer in providing the advice given in respect of the 2012-13 borlotti crop?

(b) Did SHC owe a duty of care to Tripodi to provide advice as to appropriate pre-emergent herbicides to apply to the 2012-13 borlotti crop, and to monitor and safeguard the health of crop generally?

(c) If yes to (b), was Cumming's advice to Tripodi in respect of the 2012-13 borlotti crop negligent and thus made in breach of that duty?

(d) Did SHC provide Mentor and Terbyne to Tripodi in breach of terms implied under common law, the Australian Consumer Law,[3] and the Goods Act 1958 (Vic), because those products were:

(i) not reasonably fit for the purpose of being used to control weeds in borlotti bean crops; and

(e) Did the plantings die as a result of the virus known as summer death? If no, would they have died of summer death in any event?

(f) If yes to (c), did SHC's negligence cause the death of the First to Seventh Plantings inclusive?

(g) If yes to (f), did Tripodi suffer any loss and damage as a result of SHC's negligence and if so, how much?

However, the parties did not address all these issues in their final submissions. Accordingly, I have confined myself in this judgment to the matters which the parties focused upon and argued.

70 In circumstances where a number of the important exchanges in this case were based on conversations, and where there is little independent evidence to corroborate the parties' accounts, an examination of the credit of key witnesses is essential.

71 I found Cumming to be an unimpressive witness. He presented in his demeanour in court as someone who was uncertain, guarded and defensive. At the same time, he seemed careful to avoid as far as possible giving evidence which might harm or adversely affect his position or that of SHC. The combination of his manner and the evidence he gave did not instil in me confidence in the accuracy or reliability of his evidence in general. I did not find Cumming to be a credible witness. Without corroboration, I would generally regard his evidence on the more controversial matters as suspect and not to be readily accepted.

72 My view of Cumming was the result of various factors.

73 First, Cumming acted in the manner of an uncertain witness who was often reluctant to be definite in his answers to questions. This reluctance increased during cross-examination. Many of Cumming's responses were qualified with words of supposition and likelihood. He often used words or phrases such as "probably", "could have" and "pretty sure". At one level, it is perhaps understandable that a witness giving evidence in a court case might be a little guarded. No one wants to embarrass themselves by giving exaggerated or false answers. At the same time, a witness who has done nothing wrong has no reason to be other than frank and direct with the court in answering questions. In the present case, the contrast between Cumming and Chaffey was stark - it explains largely why Chaffey was the most impressive witness of fact. Given his demeanour and parts of his evidence, I felt with Cumming that his frequent equivocation was due not merely to the usual anxiety often associated with giving evidence at a trial, but resulted from a different concern: more likely an awareness that his conduct and that of SHC in relation to the growing of the borlotti beans exposed SHC to a substantial liability risk.

74 Secondly, Cumming's evidence was not consistent. For example, Cumming gave an account of his position and responsibilities at SHC which seemed inherently inconsistent. Cumming contended that his position was more akin to a horticultural salesman, rather than a horticultural agronomist. However, he admitted both that his job at SHC was similar to that of his colleague Matthew Earle, who is described as a horticultural agronomist, and that between 2005 and 2013 he had provided horticultural agronomy services to Tripodi. Cumming defined these services as including the sale of agricultural chemicals and fertilisers which would "revolve around agronomy", providing sap test services, dormant application spray services and supplying Tripodi with a chemicals program for peaches and nectarines for 2012 -2013. Cumming explained that the chemicals program was prepared by a trainee who was working for SHC at that time, together with Matthew Earle. Cumming said that he oversaw the program. Cumming also stated that Tripodi would rely upon his advice with respect to crop care "from time to time". He explained that when there was a problem he would take it upon himself to make recommendations, and between 2005 and 2013 he made recommendations in an 'ad hoc' way, meaning that if he saw something he could help with, he would. Cumming also admitted that when Tripodi first planted capsicum crops in 2012 he went to see the crop for the express purpose of monitoring it but that the beans were a sideline and a trial. He admitted that at particular times Michael would rely on his advice for the provision of insecticides, but "not always". When asked to clarify what was meant by "not always", Cumming responded "I can't really answer that question".

75 Further, in a report dated 11 February 2005, which Cumming prepared to assist Tripodi in making an insurance claim for the loss of crop due to storm damage, Cumming stated:

"Through my role as a horticultural agronomist with Swan Hill Chemicals, I have forged a close working relationship with Michael and Gina Tripodi"

76 When Cumming was asked about this in cross-examination, he admitted that he described himself as a horticultural agronomist, and that he had signed the document. SHC did not revisit this issue during re-examination.

77 Cumming was also questioned about a screenshot of the defendant's website, where he was described as a "Horticultural managing agronomist". Cumming stated that was not his real title. He said that his title was "horticultural manager". He said that this was the first time he had seen the website, which had been put together by "Clear Eyes New Media", and that his job description was attributable to that entity and not him.

78 Cumming's evidence in respect of the insurance report, namely, admitting to providing agronomy services, and describing oneself as an agronomist in a document used as part of an insurance claim, but then asserting later that one is not an agronomist, is troubling. On the one hand, I can accept that he is a horticultural agronomist as he asserted in the insurance report and his later evidence to the contrary is false. On the other hand, I can accept that he is not an agronomist and he gave false information to the insurer and his client in relation to the insurance claim. Obviously, this raises a significant issue about his honesty and reliability in giving truthful evidence to the court. Moreover, it draws additional attention to a concern about Cumming giving partisan evidence at the expense of the truth.

79 Thirdly, other aspects of Cumming's evidence concerned me. For example, Cumming said that he had no recollection of the content of any of the conversations concerning borlotti beans between himself and Michael during the period of March to November 2012. However, he was able to give evidence concerning various conversations which occurred both before and after this period, with both Michael and other persons. In circumstances where the occurrence of these alleged conversations is important in the context of the case, it seems odd that Cumming could not categorically state whether the alleged conversations took place.

80 Cumming recalled the content of discussions he had with Michael in 2011 concerning the FMC harvester. He gave evidence that Michael did not discuss the FMC harvester with him in early 2011. Rather his first discussion with Michael concerning the harvester was when "Big Red" arrived in September-October 2011 or "possibly later". When it was suggested that the harvester actually arrived in January 2012, Cumming agreed with that proposition, and concluded that it must have been January 2012 when the first discussion took place.

81 Further, Cumming admitted that, although he could not recall the discussions between March 2012 and November 2012 concerning the borlotti beans, he could remember the discussions concerning summer death and the pre-emergent prior to its application. Cumming referred to these conversations as the "key discussions".

82 Cumming also recalled having discussions with Burrell in the middle of 2012 about providing weed killer to the Beverford property, and said that he provided Roundup to Burrell.

83 In addition, Cumming said that he had discussions with Michael concerning the preparation of the land in March 2012. Cumming gave evidence that in March 2012 he and Michael had discussions concerning the methods of irrigation for the purpose of pre-emergents. He also stated that at that time, he had given advice on the use of pre-emergents in respect of the pea crops, and had recommended the use of the herbicide Stomp. He also stated that after the first trial harvest of capsicums and borlotti beans, he had a brief discussion with Michael about the harvest of the crop.

84 An issue in the case is what advice - if any - Cumming gave Michael during the March to November 2012 period in respect of the borlotti beans. In circumstances where Cumming has shown that he can recall conversations relating to other aspects of his dealings with Michael, and with other persons, both before, during and after the relevant March to November 2012 period, I am not convinced that he cannot recall whether or not the alleged conversations about the borlotti beans took place. At best, Cumming's evidence regarding the alleged conversations between March and November 2012 suggests an inability to recall relevant events in this case. Thus, while Cumming says that he can recall nothing of these conversations of which the plaintiff speaks, he is not so certain that he is prepared to deny the conversations took place.[4] At worst, Cumming's lack of recollection is contrived because he realises that it would not assist SHC's position.

85 Fourthly, I am also reluctant to trust in the accuracy of Cumming's accounts due to the changes he made to his evidence as the case progressed.

86 During cross-examination, Cumming insisted that, in December 2012 after it was clear that the First Planting was dying, he told Chaffey that he thought the crop had died due to the Mentor and he said to Chaffey that he needed to do a trial with the chemical. This was the first mention of such a conversation. It was not raised during his evidence-in-chief. Nor was it raised during Chaffey's time in the witness box even though Cumming was present in court during Chaffey's evidence.

87 By way of explanation, Cumming said that he did not mention it in examination-in-chief due to the difficulty of remembering everything and the big job involved in giving evidence-in-chief in this case. He also said that he had discussions about the conversation with SHC's solicitor, as well as Don McDougall from the insurance assessors, but could not remember whether he told the defendant's barrister. Cumming then said he believed that he had included the conversation in his insurance statement which was prepared by Don McDougall in around 2013. This statement was not referred to in the particulars to SHC's pleadings in the proceeding.

88 In addition, it became apparent during the trial that SHC and Cumming had not disclosed in discovery all relevant documentary materials which they held. In particular, the documents not discovered were:

• the statement prepared by Douglas McDougall, on behalf of SHC's insurer in respect of this proceeding.

89 During cross-examination, Cumming revealed that he had diaries from 2012 and said he wished that he had his diary to prove that he had gone out on the land the day before the First Planting to speak with Michael and Chaffey.

90 Cumming admitted that he kept diaries recording attendances with clients between 2005 and at the date of giving his evidence, in a combination of electronic and hard copy formats. He used the diaries to record orders and to write down if he had been speaking to someone. The diaries were kept for each calendar year. Cumming said he did not record every visit he had in his diaries, and that he could have kept a diary of his attendances at the Tripodis, but that he could not say specifically and could not answer whether he did.

91 Cumming could not recall whether he had a book or electronic diary in 2012. He said he would have had a book diary at some point, but may have been chopping and changing and trying to work out the electronic system. He said he did not know how to back up his electronic diaries but that when he had finished with book diaries they would sit in a drawer somewhere at work or at home. He confirmed that he had not destroyed the diaries from between 2010 and 2012. Thus they were theoretically available. However, Cumming was unsure where they were.

92 Cumming stated that he could not remember being asked by SHC's solicitors to produce the diaries, but admitted that he had assisted with the production of documents for SHC.

93 Cumming admitted he was asked to produce documents relating to the case by SHC's solicitor, but he could not recall the solicitor asking him for diaries. He said that SHC's solicitor certainly asked him to look for emails, and whether at one point in time there was a staff planner or a weekly planner. Cumming said he was told that the time period of particular interest was November 2012 - January 2013.

94 During cross-examination, Cumming also stated that in 2013 he had answered questions for the insurance assessor, Don McDougall, in relation to the claim on which this proceeding is based. This resulted in the production of a statement. Upon the revelation that there was such a statement, the plaintiff called for production of the statement, but it was not produced.

95 In circumstances where Cumming was asked to provide emails and staff planners from the 2012-2013 period, and where many of the facts in issue in this proceeding relate to what happened and when it happened, it seems odd for Cumming to claim that it had not occurred to him to offer to provide contemporaneous materials that recorded his activities during the relevant period.

96 Thus, after taking into account the various matters set out in paragraphs 73 to 95 inclusive, I have concluded that Cumming was not a credible or reliable witness whose evidence I would accept without corroboration. To the extent of any conflict between his unsupported testimony and that of another witness, generally I would prefer the evidence of the other person.

97 In general terms, Michael Tripodi was a witness who tried to tell the truth to the best of his recollection. In that way, he was sincere even when his recollection was faulty - as it was in part. However, it seemed to me that Michael had convinced himself of the justice of his case and had persuaded himself that the facts as he recalled them supported his version of events. The problem for Michael was that the facts did not always comfortably fit with his version of events.

98 Like Cumming, Michael gave evidence for an extended period. He did so not only at the initial hearing in 2016, but then again for a shorter time in the continuation of the trial in 2017 after the matter returned from the Court of Appeal. For this reason, I had ample opportunity to see him in the witness box and assess his demeanour and how he dealt with the questions asked of him.

99 There were some aspects of Michael's evidence that gave me pause for thought. First, before he signed terms of settlement in May 2013 with SHC regarding Tripodi's outstanding account, he did not make any written complaint about the failure by SHC and Cumming to provide proper advice and guidance in relation to the growing of the borlotti bean crop at the Beverford property.

100 Secondly, notwithstanding the failure of the bean crop and the consequential impact which Tripodi said this had on its business and dealings with Woolworths, Tripodi agreed to repay the whole of the debt alleged by SHC to be owing.

101 In relation to both these matters, one might have expected an aggrieved party to at least raise in writing with SHC the allegations of poor performance by SHC and the consequential loss for Tripodi in connection with the borlotti bean enterprise. However, I accept that he raised matters orally with David Ford of SHC.

102 Thirdly, Michael said in his evidence that the issue of the purchase price Woolworths would pay Tripodi for the beans was raised at the July 2012 meeting and was followed by a later phone call with Klatt. The evidence he gave was not detailed but referred to Michael discussing a price for the beans with Klatt and Saad. In the brochure which Michael and Jina took to the meeting with Woolworths in July 2012, Tripodi referred to 250 milligram units of shelled peas with a cost price of $3.50 to Woolworths and a retail price of $4.99 and a 300 milligram unit of shelled beans with a cost price of $3.50 to Woolworths and a retail price of $5.99. Tripodi said that Woolworths indicated that $3.50 per unit was too high and asked Michael to review the price. Tripodi did not raise this cost price issue with Klatt in his evidence. Klatt simply referred to Woolworths negotiating the proposed pea price down from $3.50. Klatt made no reference to any specific price for beans. The same situation applied with Saad.

103 Fourthly, as noted, in his evidence Michael mentioned for the first time a conversation allegedly had with Klatt after the July meeting in which Michael and Jina produced the brochure setting out Tripodi's proposed product range and availability. This conversation about the price of beans was important. However, no explanation was given by Tripodi for its apparently sudden introduction to the case. Nor was it raised with Klatt, the other party to the alleged conversation and someone who willingly gave evidence for the plaintiff.

104 The upshot of these matters is that I have reservations about the reliability and accuracy of Michael's evidence. I consider that he has unconsciously or subconsciously altered his recollection of events to better fit what he perceived to be the best interests of Tripodi. For that reason, his evidence needs to be treated with care. In the absence of some corroboration, either from other witnesses, contemporaneous documents or the probabilities of other established facts, I would be somewhat sceptical of his evidence. His enthusiasm for the bean project has rendered him not the most credible or reliable of witnesses.

105 One part of Michael's evidence which I find wrong as a matter of fact related to his presence at the Beverford property on the day of the First Planting in November 2012. Michael gave evidence that he was not present on the land whilst the spraying took place on the First Planting. In his cross-examination, he contended he was not on the land until after the spraying of the First Planting, claiming that he was packing apricots. He contended that he arrived after the First Planting was sprayed with Mentor. However each of Chaffey, Cumming and Burrell gave evidence that Michael was present during the spraying of the First Planting. Especially having regard to the Chaffey evidence, and in circumstances where two other witnesses gave the same evidence, I find that Michael's recollection was mistaken.

106 A major point of attack on Michael's evidence concerned what SHC said was the inconsistency regarding the advice which Tripodi, through Michael, sought from SHC and Cumming.

107 The original statement of claim, which remained in the same terms for two years, stated:

"10. In or about February or March 2012 the plaintiff sought advice from the defendant about appropriate methods of weed control to be used with the proposed borlotti plantings.

PARTICULARS

The request for advice was made by Mr Tripodi to Mr Cummins at the Boga property in about February 2012. The substance of the request was that as he was intending to plant borlotti beans at the Beverford property in the 2012/2013 season and he wanted to know what he should use to control the weeds." (sic)

108 The report from the expert Dr Peter Taylor dated December 2014 was provided to the plaintiff's solicitors on 9 January 2015. It stated that the borlotti beans planted at the Beverford property did not die of weed infestation or weed suffocation but of the summer death virus.

109 The amended statement of claim, which was dated 10 April 2015 provided that:

"10. In or about February or March 2012 the Plaintiff sought advice from the Defendant about appropriate methods of weed control crop protection to be used with the for its proposed borlotti plantings.

PARTICULARS

The request for advice was made by Mr Tripodi of the Plaintiff to Mr Cummins at the Boga property in about February 2012. The substance of the request was that as he was intended to plant borlotti beans at the Beverford property in the 2012/2013 season and he wanted to know whether the land he intended to plant the borlotti bean crop on was suitable for that crop and what chemicals he should use prior to planting and thereafter to control the weeds and protect the crops."

110 Michael agreed that the original statement of claim was based on his instructions to his former solicitors, and that he read the statement of claim before the writ was issued. He also acknowledged that the statement of claim remained in that form for almost two years, and that the amendment took place after his current solicitors received the Taylor report. But Michael also maintained during his evidence that he asked Cumming for advice in respect of both weed control and crop monitoring and protection.

111 In effect, SHC submitted that the court should infer from the changed pleading of the statement of claim that:

(a) the original claim concerned only a request to Cumming to advise Tripodi about weed control at the Beverford property;

(b) after SHC's expert found that the borlotti beans died due to the summer death virus and not weeds, Tripodi amended its statement of claim to include an allegation that it sought advice from Cumming about ongoing crop protection for the borlotti bean crop.

(c) Michael's evidence in support of the broader claim was false and contrived. It was fashioned purely to overcome the problem created by Dr Taylor's report which significantly undermined the case which Tripodi had been running until it received that expert report.

112 Having considered the matter, on balance I am not satisfied that Michael's evidence was, in effect, falsely manufactured to cope with the expert report of Dr Taylor. On this aspect of the case, I accept the position advanced by Tripodi. Further, I note from the transcript that the proposition about the plaintiff changing the statement of claim specifically as a result of Dr Taylor's report was not put directly to Michael. It is not enough to say that the plaintiff's pleading was amended a couple of months after receiving the expert report. If SHC sought to criticise Tripodi's case and the veracity of the witness, in my view it should have been put to Michael that:

(a) the statement of claim was amended because of, and in order to, address the contents of the expert report; and

(b) Michael's evidence on this issue was false.

113 In circumstances where one party asks the court to disbelieve a major witness for the other side, this is a point of some significance.

114 Accordingly, I do not accept the defendant's proposition that the report itself was the impetus for change and Michael is a liar whose evidence on this issue was invented and untruthful.

115 Chaffey presented as a measured and careful witness who took seriously his obligation to give truthful evidence.

116 Although he was a witness for the plaintiff, this did not stop him from giving evidence which did not advance the plaintiff's interests. For instance, contrary to Michael's recollections, he gave evidence that Michael was present at the Burrell property during the spraying of the First Planting on 17 November 2012. Chaffey said that he had no doubt that Michael remained at the location of the First Planting while Chaffey sprayed the Mentor on 17 November 2012.

117 A witness who is willing to give evidence that contradicts the party whose case they have been called to support, is often a witness of truth. Subject to the circumstances and other evidence, a court might well be more inclined to accept the evidence of such a witness.

118 I was further encouraged to take a favourable view of Chaffey due to the consistency between his diary from the relevant 2012 - 2013 period, and his evidence in court. Chaffey kept a diary throughout the 2012-2013 period when he worked for Tripodi. Notes from his diary had been typed up by his wife on 12 March 2013. Where the typed notes and written diary conflicted, Chaffey explained that the written diary was to be relied upon, as the typed notes had mistakes in them.

119 Whilst it is acknowledged that the source of both of these pieces of evidence is the same, the fact that Chaffey's recollection of events is consistent with a diary account made contemporaneously, and which was made for the neutral purpose of enabling Chaffey to keep track of the work he was doing, in my opinion, allows the court comfortably to conclude that Chaffey's diary entries are most likely to be accurate accounts of what took place.

120 Another factor supporting my view of Chaffey as an honest and reliable witness was his independence from the litigating parties. Although Tripodi engaged him to work at the Beverford property, he had no obvious financial or other interest to pursue or defend in circumstances where there was no allegation that any act or omission by him had caused or contributed to the failure of the borlotti bean crop at the property.

121 In part, SHC was critical of Chaffey's evidence and submitted that his recollection of certain events surrounding the mixing of the herbicide between plantings 1 and 2 might be confused. The point seemed to be that Chaffey gave inconsistent evidence about who mixed the Mentor before its first use on a borlotti bean planting at the Beverford property. However, from my reading of Chaffey's evidence, he said both in his evidence-in-chief and cross-examination that Cumming worked out the dosage rate for the Mentor and then Cumming and Chaffey mixed up the product in the spray tank before Chaffey sprayed the planting. Nothing put by SHC in this regard had any adverse impact on Chaffey's credibility.

122 Burrell spent a short time in the witness box. Overall, I found him to be consistent in his account of what took place.

123 It appears from both his and Michael's evidence that at the time of the borlotti plantings, he and Michael were good friends. However, since that time the relationship has deteriorated. No submissions were made by either party on what, if any, effect this may have had on the veracity of the evidence given by Burrell.

124 The plaintiff submitted that Burrell was not a reliable witness, as his memory was "hazy at best", "confusing" and he could not remember the details of dates, times, people present or the name of the product Mentor.[5]

125 I agree that certain aspects of Burrell's evidence were unclear. For example, during cross-examination, Burrell was asked whether Chaffey was present during the phone call in which the defendant contends Cumming told Michael to undergo a trial of Mentor. Burrell's response was that he could not recall.

126 I also agree that Burrell's evidence appeared somewhat uncertain. For example, he was unsure (until prompted by counsel) as to the date of planting.

127 However, none of Burrell's evidence was crucial or significantly affected any of the major issues to be determined in the case. To that extent, it is not necessary to consider in any detail his evidence and his reliability as a witness. Suffice to say, I regarded him as an honest witness attempting to tell the truth as he recalled it. His recollection was incomplete and uncertain in some respects, but ultimately it does not matter.

128 Three people from Woolworths gave evidence: Klatt, who at the relevant time was a senior category manager; and Saad and Chris Chase both of whom were category managers. I found each of them to be honest, credible and reliable witnesses. I accept their evidence. They provided a consistent account of the dealings between the parties and much of their evidence was supported by contemporaneous documents. Klatt in particular was an important witness and to the extent of a conflict between him and one of the parties, I would prefer his evidence.

Did Tripodi retain SHC both to advise on pre-emergent herbicides for the 2012-13 borlotti bean crop and the health of the crop generally, and to provide monitoring services regarding the bean crop?

129 Tripodi claims that in March 2012 it sought advice about herbicides and crop care generally from SHC during a conversation between Michael and Cumming. The conversation allegedly occurred in Michael's office. Michael said that during the conversation, he requested that SHC, through Cumming:

(a) advise Tripodi as to whether the land was suitable land for planting the borlotti bean crop;

(b) advise Tripodi as to which chemicals it should use prior to planting

(c) take responsibility for controlling the weeds and protecting the crops;

(d) attend the property once a week to monitor pests and diseases.

130 Tripodi claimed that, in response, Cumming stated words to the effect of "Yes, I'll help you in any way I can".

131 SHC contends that Michael's request was limited to asking Cumming to find a suitable pre-emergent herbicide and, thus, SHC's duty was so limited. SHC submitted that this was supported by the fact that:

(a) Cumming's involvement in the 2011/12 planting was expressly limited to providing a herbicide;

(b) Cumming was not paid for the agronomy services he had allegedly agreed to provide;

(c) Michael had told Cumming that he was not concerned with the summer death virus in January 2012 (thus, it was said, Michael was not looking for guidance on insecticide use in March 2012);

(d) Cumming amended its pleadings with the effect that a broader request was made only after Tripodi had received the defendant's expert report which claims that summer death - not the herbicides - was responsible for the death of the 2012/13 plantings;

(e) Michael did not make contemporaneous complaints to Cumming about his role or engagement in the application of insecticides once it became clear that plantings 3, 4 and 5 had died due to summer death.

132 Cumming said that he did not have any recollection of the details of conversations he had with Michael between March 2012 and November 2012. He did not have any recollection of the conversation Michael alleges.[6] However, he said that the conversations he did have around that period mostly related to trying to find herbicide options for the bean crop.

133 There is no independent evidence - written or otherwise - specifying what was said during the conversation between Michael and Cumming.

134 In this conflict of evidence between Michael and Cumming, I prefer Michael's evidence. Accordingly, I accept the gist of Michael's evidence and find that he raised with Cumming the issues of an appropriate pre-emergent herbicide for the borlotti beans, the need for SHC to monitor the bean crop for pests and disease, and to provide appropriate advice. Such an approach was consistent with Tripodi's prior dealings with SHC. Also, it was consistent with Cumming's prior conduct in relation to Tripodi, and its stone fruit and other farming that Cumming should have agreed to Michael's request. In circumstances where a farming operation engaged in a substantial business involving valuable assets, as Tripodi did, I accept that Tripodi placed significant reliance on SHC for advice in relation to the care and nutrition of its crops, be it stone fruit, capsicum or beans. Tripodi looked to, and received from, SHC advice, guidance and monitoring designed to protect and enhance the wellbeing and productivity of its crops.

135 There was an established relationship between the parties. Michael and Cumming had worked together since about 2005. Over the years, SHC through Cumming, had provided extensive advice, product and services to Tripodi. Tripodi had paid for the pesticides, insecticides and other products it bought for its farming operations but had not been charged for SHC's advice and general agronomy services. Presumably SHC expected that if it provided a good service to clients like Tripodi, the clients would accept its recommendations and purchase chemicals and other product from SHC.

136 Cumming had been involved in the growing of the smaller plots of beans which Tripodi had undertaken for its own research and development purposes. Cumming was aware that Tripodi's main focus was on stone fruit but Cumming nevertheless had assisted earlier both in relation to the borlotti beans and the capsicums which Tripodi grew. Cumming did not limit himself to providing advice and services to Tripodi only about stone fruit.

137 Accordingly, I find that by the agreement reached between Tripodi and SHC through Michael and Cumming, there was a retainer for SHC to advise on pre-emergent herbicides for the bean crop in the 2012-13 growing season and the health of the wellbeing of the crop generally. Also, Tripodi retained SHC to monitor the borlotti bean crop as it did with the stone fruit.

Did SHC owe a duty of care to Tripodi regarding:

(a) advice about pre-emergent herbicides to apply to the bean crop in 2012-13;

(b) the provision of monitoring services regarding the bean crop; and

(c) advice about the health and protection of the bean crop?

138 Tripodi claims that SHC owed it a duty of care about the advice regarding herbicides.

139 Tripodi claims that the duty arose when Cumming:

(a) in or about mid November 2012, advised Tripodi that it should use the pre-emergent chemical herbicide Mentor at a rate of 170gm grams per hectare to control the weeds. Cumming did not advise Tripodi as to the inherent risks of using such a product on the borlotti bean crop. ("Mentor Advice").

(b) on or about 22 November 2012, recommended that Tripodi apply Mentor to approximately half of the next planting, and the herbicide Terbyne to the balance. The Terbyne was to be applied at a rate of 700g per hectare to control the weeds. Cumming did not advise Tripodi as to the inherent risks of using such a product on the borlotti bean crop. ("Mentor/Terbyne Advice").

140 Tripodi also claimed that, not only was SHC negligent to advise the use of chemicals which harmed the bean crop, SHC was also negligent in failing to make proper investigations and recommend chemicals which had been successfully used with borlotti beans before November 2012. Thus, the claims reflected allegations of advice given which was negligent, and advice which was not given but should have been - a negligent failure to advise regarding a suitable pre-emergent herbicide.

141 In addition, Tripodi claimed that SHC owed a duty of care regarding the monitoring and safeguarding of the bean crop. This included dealing with and advising about risks created by weeds, insects and disease.

142 Tripodi's submissions regarding the negligent advice given relied on the well-established principles regarding such a duty in Hedley Byrne & Co Ltd v Heller & Partners Ltd.[7]

143 The House of Lords in Hedley Byrne established that if, in the ordinary course of business or professional affairs, a person seeks information or advice from another in circumstances in which a reasonable person would know that he was being trusted, or that his skill or judgment was being relied on, and the person asked chooses to give the information or advice without indicating that he does not accept responsibility for it, then the person replying accepts or assumes a legal duty to exercise such care as the circumstances require in making his reply. A failure to exercise that care can give rise to an action for negligence if damage results.[8]

144 Since Hedley Byrne, later decisions have established that:

(a) in cases of negligent misstatement causing pure economic loss, a duty may arise even if no request for advice or information is made. When considering the law of negligent misstatement, the idea of implied acceptance by a defendant of liability is, in effect ,a liability imposed by law and is not voluntary.

(b) because such a claim requires that there be reliance by the representee on the negligent advice or misstatement, unlike with other torts, reasonable foreseeability of harm, whilst relevant to determining if a duty is owed, will not be of itself, sufficient to establish a duty of care.

(c) courts have held that the duty of care is less likely to arise where advice is given in an informal context, as people speaking on social or informal occasions may express opinions with less care than if they were giving the advice in a professional context.

(d) the less formal or serious the occasion in which information or advice is sought, the less likely it is for a duty of care to be found.

145 Because the retainer included SHC performing monitoring services for Tripodi in relation to the borlotti bean crop, SHC had a duty to provide such services at a standard which a reasonably competent agronomist advisor would provide. Based on the work which SHC and Cumming did for other produce grown by Tripodi, the service would include regular inspections, examinations, testing for disease and giving advice designed to protect the crop and enhance its productivity.

146 Having regard to the evidence as a whole, I find that a person in Cumming's position ought to have known that he was being relied on to provide serious advice to a client in a commercial context when making the alleged misstatements about the Mentor and the Terbyne.

147 The existence of the duty is based upon several things. First, due to the retainer, there was an obligation to exercise due skill and care in advising about a suitable pre-emergent herbicide for the bean crop.

148 Secondly, as noted, the duty was consistent with the prior conduct of SHC and Cumming regarding their dealings with Tripodi. The parties agreed that in respect of Tripodi's stone fruit crops, Cumming would:

• provide chemicals for nutrition of Tripodi's fruit trees, as well as fungicides, herbicides and insecticides;

• test to determine nutrition and thus the chemical needs of plants and the soil in which they grew;

• develop chemical application programs, based on the information gained from the previous season's successes and failures.

149 Cumming also provided crop care for species outside his usual expertise. Cumming's primary experience was with stone fruit, cucurbits and wine grapes. However, he helped Michael with Tripodi's 2010/11 trials of legumes and capsicums. He gave advice to Michael about scleoritinia - a disease that was attacking some of the plants. He also took it upon himself to find the cause of problems with the capsicum plants. This involved inspecting the plants at the property and monitoring their progression without a request from Michael.

150 Cumming also stated that he knew Tripodi would rely on his advice in an 'ad hoc' way, meaning that if "I saw something, if I could help in any way, yeah, I would".[9]

151 Thirdly, much of SHC's and Cumming's conduct seemed to accept that there was a duty imposed upon them. It was as if the defendant assumed the obligation to Tripodi to provide the advice and services which a reasonably competent agronomist advisor would provide in the circumstances. Cumming did provide advice about pre-emergent herbicide, and once the early plantings began to fail, he was involved in trying to identify and rectify the problem.

152 When he took leave at the end of 2012, Cumming received regular text messages from his junior colleague Abby Gadsden, who was providing photographs of the progression of the second and third plantings. These text exchanges also contained recommendations from Cumming to Gadsden to take sap tests from the failing plants. Additionally, Gadsden provided updates to Cumming on the progression of testing results.

153 Similarly, when issues arose with the Third and Fourth Plantings, Cumming arranged for soil testing to be taken on the plantings, and had the samples sent to the South Australian Research and Development Institute (SARDI) for analysis. Cumming explained that SARDI offered a diagnostic service and if you wanted to test for plant pathogens or diseases, it was a good facility to use.[10]

154 Cumming also admitted that he looked for pests as a potential cause of the deaths of the First and Second Plantings and that if he had seen a reason for putting down sticky traps at those early stages, he would have. Also, through other personnel, SHC laid sticky traps at the Beverford property and analysed the results to make recommendations about how to deal with the insects identified.

155 Although Cumming asserted that he was under no duty to Tripodi and denied knowing the intricacies of Tripodi's investment in the borlotti bean project, he was aware of extensive steps which had been taken by Tripodi in developing and commercialising its borlotti bean crops: he knew about Tripodi's purchase of the harvesting machinery; he knew that Michael and Jina had travelled to Italy twice for the purpose of investigating harvesters for harvesting borlotti beans; he was aware that the 20 hectare trial in 2012 was completed, inter alia, to test out the harvesting machine; he knew that Tripodi planned to produce borlotti beans in a punnet; he knew that Tripodi was building an assembly line; he was also aware that Michael had leased out additional land for this commercial venture, being Burrell's property, as he helped Tripodi prepare the land for this purpose.[11]

(a) Cumming had raised the issue of summer death with Michael in January 2012, and Michael told him he had been advised it was not an issue for 2012 season. Therefore, when Cumming was engaged in March 2012, Michael would not have been concerned with, or seeking, advice regarding insecticides.

(b) Michael was relying on others, not SHC, for advice about herbicides and pesticides for use on borlotti beans. He sought advice from Smith ("Smith") in relation to the type of seed to use for plantings, and advice about herbicides and pesticides for use in the 2011/12 borlotti season.

(c) Despite paying others for crop monitoring services, Tripodi never paid an additional fee to SHC for the provision of crop monitoring services.

(d) Tripodi did not make a claim that SHC had agreed to provide a broader service until after SHC's expert report demonstrated that plantings 3,4 and 5 were killed as a result of summer death, not the herbicides. Similarly, when negotiating and entering into a deed of settlement with SHC on 15 May 2013, in respect of a separate proceeding for the recovery of monies owed to SHC, Tripodi made no written complaint that SHC had owed it a broader duty of care.

158 First, in my opinion, whether Cumming raised the issue of summer death with Michael in late December 2011 or early January 2012, is not decisive in determining the issue of the scope of the duty owed by SHC to Tripodi. The plaintiff's claim is that the duty arose because of the agreement reached in March 2012 between Michael and Cumming. Assuming the December 2011 or January 2012 conversation did take place, then it occurred before the March 2012 conversation created obligations between Tripodi and SHC in respect of the borlotti beans. I have found that the agreement extended beyond a request for advice about pre-emergent herbicides.

159 Secondly, the evidence in support of SHC's assertion that Tripodi was relying on others, such as Smith, to provide the relevant services is weak. SHC relies on Cumming's assumption that Smith was providing the relevant services, on the basis of Smith's involvement with Tripodi. However, on the evidence, the only bases for Cumming's knowledge of Smith's involvement are: the 28 October 2011 email, which Cumming also alleges he did not fully read, and the December 2011/January 2012 conversation Cumming alleges he had with Michael. Because Cumming was a far from impressive witness, I would attach minimal weight to his evidence about the conversation with Michael. Moreover, Smith was not readily available like Cumming to inspect the crop and advise on a frequent basis.

160 Thirdly, the submission that the absence of a fee for monitoring is indicative of Tripodi's lack of reliance on SHC is unconvincing in circumstances where SHC historically had not charged Tripodi any fee for Cumming to provide such crop monitoring services.

161 Finally, the fact that Tripodi amended its claim following the production of SHC's expert report does not in this case support an inference that it was amended because of the report's findings. Additionally, the fact that no written complaint was made during the negotiations between SHC and Tripodi in respect of recovery of monies owed, is undermined by the undisputed evidence that Michael made an oral complaint to David Ford, the former chief executive officer or general manager of SHC.[12]

162 Overall, I accept that Tripodi retained SHC for the purposes of both providing advice and monitoring services. Thus, SHC owed Tripodi a duty of care regarding the provision of advice and monitoring services. The retainer and duty were not restricted only to advising about controlling weeds in the borlotti bean crop.

Was there a breach of retainer and/or a breach of duty?

163 Having found that a duty was owed, I now turn to determining whether the alleged misstatements or failure to advise constituted a breach of SHC's retainer and/or SHC's duty to Tripodi.

164 To determine whether SHC breached its duty of care, a court must first consider:

(a) whether a reasonably competent agronomist in Cumming's position would have foreseen that their advice and conduct regarding the pre-emergent herbicides and the health of the crop generally might pose a risk of injury to the plaintiff or to a class of persons including Tripodi;

(b) what the reasonably competent agronomist would have done by way of response to the reasonably foreseeable risk of injury.

165 Cumming had assisted Tripodi with its crops since about 2005. Prior to that, he had helped other farmers in the Swan Hill area, who also produced crops for large commercial chains. His areas of specialty included table grapes, stone fruit and cucurbits. His work for Tripodi included:

(a) providing recommendations for chemicals to use on crops, including treatments that would boost the crop's nutrition and protect the crops from damage due to insects, fungi and weeds; watering and chemical application programs and seed treatments. In providing application programs, Cumming was aware of the importance of 'withholding periods' for commercially produced crops;

(b) arranging for samples to be taken from plants in order to develop the appropriate treatments;

(c) visiting Tripodi's land to monitor the progress (and health) of its stone fruit crops;

166 Cumming held himself out as a horticultural agronomist. As early as February 2005 he wrote a letter on behalf of Tripodi on SHC letterhead in which he referred to his "role as a horticultural agronomist with Swan Hill Chemicals".

167 The parties have submitted conflicting recollections of how and when the Mentor advice was given in respect of the First Planting.

168 It is agreed that Cumming instructed Chaffey to mix the Mentor at a rate of 170g per hectare at 400 litres per hectare in the Hardi spray tank to apply to the First Planting. Cumming had written the instructions on the bottle. The spray tank had 2,200 litre capacity and was filled to capacity. That would have covered 5.4 hectares at a rate of 400 Litres per hectare. Cumming provided a 2 litre bottle of Mentor to Chaffey.

169 Cumming says he provided the bottle of Mentor to Chaffey on 16 November 2012, as their cars crossed paths on Burrell's property. Chaffey says he did not see Cumming on 16 November. Rather, on 17 November 2012, [13] Cumming arrived mid-morning with Mentor and advised, by reading the label, what amount should be applied to the first planting. Chaffey's handwritten diary contained the entry:

"Sprayed Bays 1 - 13

Mentor 170g/H at 400L/H

As per Brian SHC

Then watered 3 Hrs"

170 I prefer Chaffey's evidence, and accept that he received the Mentor on 17 November 2012. Overall, Cumming's evidence on this point was significantly weakened by the circumstances in which it was given. First, he did not mention his meeting with Chaffey during examination-in-chief. He first mentioned this meeting during his cross-examination, despite having been present in court when Chaffey was giving contrary evidence.[14] Additionally, when he was asked to explain the delay in revealing this alleged meeting, he said that it was because of a combination of factors, namely: he had difficulty remembering everything when giving evidence-in-chief; he thought he had relayed his version of events to SHC's solicitor and insurance assessors. He also revealed that evidence of the meeting would be found in his diary entry from 16 November 2012. He had not revealed the existence of this diary, which was not before the court, despite Cumming having participated in the proceeding's discovery process.

171 In my opinion, the Mentor recommendation was made negligently. The evidence before the court shows that Cumming made scant efforts to find an appropriate pre-emergent herbicide, learn about the plant (despite his admitted lack of experience with borlotti beans), and seek to meet Tripodi's deadlines. Taking into account his experience and understanding of the importance of chemical applications to the commercial production of crops, this fell below the requisite standard. Especially is this the case where Tripodi would be in a vulnerable position if the advice or services were not what they were meant to be. Further, there is no evidence before the court showing why Cumming's use of Mentor, as opposed to other pre-emergents, was thought to be appropriate in the circumstances, and at the rates that he suggested.

172 At trial, Cumming provided a vague account of the steps he took to find a pre-emergent herbicide. He gave evidence that his investigations included the following:

(a) discussions in March 2012 with colleagues at SHC;

(b) discussions with local farmers, who largely did not use pre-emergent herbicides;

(c) raising the issue with various people after March 2012. The only person Cumming could specifically recall asking was Tally Matthews, who had no experience with borlotti beans or green beans.

173 He said that, together with his colleague David Ford, he did identify other products as potential options to use on the beans during the March - November 2012 period. But the only product he could specifically recall identifying before the First Planting was Treflan. He could not recall what Ford identified. Curiously, he did not contact Smith (of Sunland Seeds) whom, on SHC's case, he considered to be the borlotti bean expert that Michael was relying on for seeds and advice with respect to summer death.

174 Although he acknowledged he had no previous experience with borlotti beans, Cumming did not make much effort to learn more about the borlotti bean plant. He could not recall if, during his investigations in early 2012, he was even aware that borlotti beans were biologically similar to green beans.

175 Despite being asked to find a suitable pre-emergent in March 2012 (which was then 6 months before the intended September planting date, and 8 months before the eventual November planting date) Cumming did not identify a suitable pre-emergent herbicide to apply to the borlotti beans by the required date. On the day of the first spraying, Cumming (and SHC) said he had only identified a pre-emergent herbicide that was suitable for trialling, not applying to the whole crop. One week prior to the planting, Cumming was still searching for a suitable product, and no indication was given to Tripodi at that point that:

(a) he had not been able to find a suitable product;

(b) he might only be able to find a product for testing, and that the borlotti bean production would be delayed.

176 These limited efforts were also coupled with an absence of evidence from SHC to explain why Mentor was suggested as a suitable product. Accordingly, it is difficult to see how the recommendation was reasonable. It is accepted by both sides that borlotti beans were not mentioned on the Mentor label; nor French beans or green beans, which are, according to SHC's expert, within the same species as borlotti beans. Cumming knew, at the time when he recommended Mentor, that there were risks in applying the chemical to an "off-label" product - that is, one not specifically listed on the label as being suitable for use with the chemical. In evidence, he explained that the product Treflan was not appropriate because of its weed coverage, and that the product Stomp was also inappropriate. But he did not explain why Mentor appeared to be a reasonable and appropriate choice for Tripodi's purposes. Similarly, Cumming could not explain why he chose the 170g rate of application. Cumming said that he read the label and worked out the rate. According to the label, that rate of application was suitable when applying Mentor to chickpeas, fava beans and lentils - all different species to borlotti beans and green beans.

177 In its defence, SHC alleged that on the morning of the first spraying, during a phone call between Cumming, Michael and Burrell, Cumming advised Michael of the risks associated with using an off-label product and said that he should perform a trial of the Mentor on a patch of the First Planting. SHC contended that despite the recommendation, Michael decided to apply the herbicide to the whole crop. I have already discussed why I accept that this phone call took place on the morning of the first spraying.

178 The evidence adduced by each of the parties in respect of what was said during the phone call is brief.

179 Michael agrees that he was told Mentor was off-label, but denies that Cumming explained the risks to him, or that he recommended Tripodi undertake a trial of the product. Burrell says that he remembered Cumming outlining the risks and recommending that trial be conducted on part of the first planting during the phone call.

180 Cumming said that in telling Michael that the Mentor was 'off-label' to him, that meant that he had told him there was a risk of death to the plants. When pressed during cross-examination, Cumming explained that he could not recollect whether he specifically mentioned that Mentor might kill, rather than harm, the beans. Cumming concluded that, "In my mind, they're the same, potentially".[15]

181 In my opinion, in stating that Mentor was 'off label', this was sufficient to indicate to a farmer with Michael's experience, that there was a risk it could harm the plants, which would make them unsuitable for commercial consumption. Having known that the Mentor product was off-label and therefore, its suitability for use with borlotti beans was uncertain at best and detrimental at worst, Michael nonetheless went ahead with the planting.

182 However, even if Tripodi went ahead with the planting knowing Mentor was off-label and without conducting a trial, I am by no means satisfied that Cumming and SHC should be absolved of all responsibility for the problem with the borlotti bean plantings. Cumming had plenty of time to find a suitable pre-emergent herbicide and by his lack of real endeavour in this area, he created a difficult situation for Tripodi. In circumstances where Michael spoke to Cumming in March 2012 about what he needed later in the year, it was unsatisfactory for Cumming to tell Michael only just before the plantings were due that he had not found an approved herbicide for use with the beans.

183 Burrell's evidence regarding the phone call was not helpful. It appeared that Burrell's focus during the discussion was on the threat of the impending hot weather on the First Planting, and how the weather would affect the application of herbicide and the crop generally.[16]

184 The parties did not advance detailed submissions in relation to the Terbyne/Mentor advice, and the evidence in respect of this issue was limited.

185 Cumming recommended that Michael apply a combination of Mentor and Terbyne 750WG ("Terbyne") to the Second Planting. He recommended that half of the planting be sprayed with Mentor, at a higher rate (being 340g per hectare) than what was applied to the First Planting, and the other half with Terbyne at a rate of 700g per hectare. Like Mentor, Terbyne is not registered for use on borlotti beans. Chaffey mixed the chemicals as instructed, and applied them to the crop on 22 November 2012.

186 As was the case with the First Planting, Cumming calculated the rate of application by examining the Mentor label. Cumming decided on the rate of 340g per hectare, which was the recommended amount to be applied to vetch, another legume.[17]

187 Cumming explained that the Terbyne recommendation emanated from a conversation with his colleague, Stuart Rendell, concerning potential pre-emergent herbicide options for the borlotti crop. Terbyne had been used in summer-grown bean crops. Cumming determined the rate of application by looking at other legume crops on the Terbyne label. Cumming decided on the rate of 700g per hectare, which corresponded with the recommended rate of application for chick peas, fava beans, field peas and lupins.[18]

188 Prior to 22 November 2012, Cumming and Michael had a brief discussion regarding the application of Mentor and Terbyne to the Second Planting. The extent of the discussion was that there was another pre-emergent which Cumming wished to compare with Mentor.

189 Based on the evidence before me, it does not appear that Michael was specifically informed that Terbyne was also not registered for use with borlotti beans, or that Cumming intended to apply Mentor at a higher rate. It was agreed that Cumming did not discuss with Michael the potential risks of using Terbyne or using the Mentor at a higher rate than in the First Planting.

190 In respect of the Mentor, Cumming explained that he did not warn Michael of any risks or suggest that he conduct a trial, because at that stage, the First Planting was not exhibiting any signs of harm from the Mentor. Additionally, because the Second Planting had been appropriately irrigated prior to the application of pre-emergent herbicides, the trial was not necessary. In Cumming's opinion, there was a much lower risk of the Mentor seeping in to the soil and causing issues with the plants. In Cumming's view it was an opportunity for a potential increase in weed protection with less risk.

191 SHC appeared to justify the lack of trialling Terbyne due to Michael's stance regarding the proposed trial at the First Planting. No evidence was given which directly supported this. This was not explicitly stated in Cumming's evidence, when Cumming was asked why he did not recommend trialling the products used on the Second Planting. Cumming's response appeared to focus on Mentor and he seemed to ignore that this was the first occasion on which Terbyne was used with the borlotti beans.

192 In my opinion Cumming was negligent in providing the Terbyne/Mentor advice.

193 First, Cumming's failure to go through the risks of using unregistered products, for the reason outlined above, fell below the standard expected. Further, this failure to explain the risks is significantly undermined by SHC's argument that because it referred to the risks of using Mentor in the First Planting, it should be absolved from liability with respect to the First Planting. Without a sufficient awareness of the risks, Michael could not make an informed decision about whether or not he should follow Cumming's advice.

194 Secondly, the fact that Cumming did not recommend trialling the Mentor at the increased rate which was about double the rate used in the First Planting, or the Terbyne, fell below the standard of a reasonable person in Cumming's position. This is particularly so in circumstances where Cumming had recommended that Mentor be trialled on the First Planting because it was not registered for use on borlotti beans. It is peculiar that he did not make this suggestion for further application of that same unregistered product at a more concentrated rate. Likewise, it is odd that Cumming did not provide clear warnings and recommend testing in relation to Terbyne which was also a product not registered for use with borlotti beans. This view is strengthened by the fact that, again, SHC has argued that it should be absolved of responsibility for the use of Mentor on the First Planting, because Cumming made a trial recommendation which was not followed.

195 I also do not accept that there was no need to recommend a trial, because Michael did not follow Cumming's recommendation for trialling Mentor at 170g on the First Planting. Cumming was dealing with unregistered products whose effects on borlotti beans were unknown.

196 Again, the evidence did not disclose a sound or reasonable basis for the recommendation which SHC, through Cumming, made to use Terbyne and Mentor at a higher rate of application.

197 There was no evidence before me which showed that doubling the rate of application of Mentor would have increased the weed protection of the borlotti plants. Whilst the Second Planting was properly irrigated and (according to SHC) would arguably allow for higher rates of pre-emergent application with less risk, the decision to almost double the rate of application to potentially improve weed protection is not justified on the evidence. This appeared to be guesswork from Cumming. I note that in cross-examination when Cumming was asked whether doubling the dose of Mentor could double the risk of the damage it might cause, he agreed that it might.

198 Further, it appears that the Terbyne recommendation was made with little research into the product by Cumming. Cumming relied on the word of Stuart Rendell. No evidence was led to show that that Mr Rendell had any experience with borlotti beans, or that Cumming had investigated the product.

199 Having regard to the complexities attaching to the use of these chemicals, this approach to the role of assessing and recommending suitable products for farmers is unsatisfactory.

200 I note that there was some evidence that a borlotti bean data search of the Agricultural Pesticides Veterinarian Medicines Authority database utilising the Public Chemical Registration Information System would have disclosed that Trifluralin was a chemical registered for use with borlotti beans in the Australian Capital Territory, Queensland and New South Wales. Further, SHC was said to be a member of the Independent Horticultural Distributors or AgLink which had a network of outlets in Australia. Within AgLink there was a collection of horticultural agronomy experts who could have been consulted for advice. It was also possible to contact the agricultural-chemical companies about their experience with weed control and herbicide options for borlotti beans. SHC gave no evidence suggesting that it made efforts to obtain information from any of the above sources.

201 Finally, both experts agreed that SHC should have performed more research on registered herbicides before making any recommendation. They also agreed that, to the extent that Cumming gave evidence that in late November 2012, there was no herbicide other than Mentor or Terbyne available for use on the borlotti beans, that was incorrect. Cumming should have conducted a more diligent and thorough investigation before giving his advice.

202 It is undisputed that in giving the Mentor Advice and the Mentor/Terbyne advice, SHC did not:

(a) advise Tripodi as to which insecticides should be used on the borlotti plants; or

(b) implement a monitoring system of the control of insects on the crops.

203 Because I am satisfied that SHC's retainer included not only giving advice but also providing monitoring services regarding the bean crop, I consider that SHC breached the retainer by failing to properly monitor the beans as they grew. To the extent that SHC failed to give appropriate advice in relation to pre-emergent herbicides, gave the Mentor advice and Mentor/Terbyne advice, and failed to monitor the beans for insects and other factors which might adversely affect the health of the crop, SHC breached its retainer from Tripodi and its duty of care. The duty related both to the provision of herbicide advice which a reasonably competent agronomist in Cumming's position would give, and to the provision of monitoring services which a reasonably competent agronomist in Cumming's position would provide.

204 Again, I comment in passing that the experts agreed that if leaf hopper insects are discovered in a crop, spraying the crop would prevent the further spread of the summer death virus and thereby save those plants which were not already infected.

205 I note however, that the combined effect of the plaintiff's submissions and pleadings with regard to this matter was a little confusing. The pleadings appeared to bundle together, within the claim for a failure to advise both negligent misstatements (including by way of a failure to speak), together with a failure to act on the part of the defendant (that is, monitoring the crops).

206 However, in submissions, the failures to advise were treated as negligent misstatements. Thus, from one perspective, it appeared to be submitted in effect that a failure to monitor the crops constituted a negligent misstatement. Simply put, this does not make sense. A failure to monitor presumably involves failing to attend the land and examine and analyse the crops. Such conduct does not fall within the parameters of a 'negligent misstatement'. However inelegantly expressed, the thrust of Tripodi's case was sufficiently clear that SHC should have been able to work out that Tripodi was making different complaints against it. I note that SHC did not suggest at trial that it was taken by surprise or faced unpleaded allegations in this context.

207 SHC sold 2.5kg of Mentor and 10kg of Terbyne to Tripodi.

208 Tripodi claimed that there were implied terms applicable to these sales that:

(a) both Terbyne and Mentor would be reasonably fit for the purpose of being used to control weeds in borlotti bean crops;

(b) both Terbyne and Mentor would be of merchantable quality.

209 In its pleadings, Tripodi said the terms were implied by operation of common law, section 19 of the Goods Act 1958 (Vic) and sections 54 and 55 of the Australian Consumer Law.

210 The applicable common law was not identified. Further, neither of the parties dealt with the issue of implied terms in its final submissions, written or oral.

211 Thus, the court is left without any indication of the parties' views as to:

(a) how and when the common law will imply terms into such contracts, and what terms the common law implies;

(b) how and when section 19 of the Goods Act 1958 (Vic) and sections 54 and 55 of the Australian Consumer Law will operate;

(c) whether the sales were made in breach of any of the above.

212 Tripodi may be legally correct in its assertions. However, it is not the role of the court to rule upon complicated arguments which the parties could have but did not agitate. Accordingly, I will not consider the point any further.

Did the plantings die as a result of the summer death virus? If not, would they have died from summer death in any event?

(a) the duty owed to Tripodi included a duty to monitor the crops and provide advice with respect to insecticides, as well as an obligation to find a suitable pre-emergent herbicide; and

(b) if SHC had properly monitored the bean crop, the appropriate use of insecticide would have prevented any problems due to the summer death virus

it is probably unnecessary for me to determine what specifically caused the death of the borlotti bean crops. However, I make the following brief observations.

214 In my opinion, the evidence from the parties' expert witnesses was deficient and unimpressive. Each expert had his faults. Therefore, especially where there are areas of disagreement between them, I am unwilling to make findings due to the state of the evidence.

215 David Bell ("Bell") is a horticultural and agricultural consultant, and is the director of David J Bell & Associates Pty Ltd. He has had a 35 year career in agriculture and horticulture, which has involved retail management, field sales, and product development roles.

216 Dr Peter Taylor ("Taylor") is a plant pathologist and entomologist with more than 40 years' experience. He specialises in determining the causes of crop failures and crop production problems in temperate and tropical climates. He has undertaken 60 expert investigations of crop failures relating to insurance claims and/or litigation, since starting his consultancy business in 1995.

217 Bell provided three reports in this proceeding, whilst Taylor provided two reports. In addition, in August 2015 they prepared a joint report which outlined their areas of agreement and disagreement.

218 Taylor and Bell agreed that:[19]

(a) the First Planting died due to the application of Mentor to the borlotti bean crop;

(b) the Second Planting died due to the application of Terbyne and Mentor to the borlotti bean crop;

(c) the Seventh Planting, which took place on the land where the First Planting was sown, died as a result of exposure to Mentor residue in the soil; and

(d) summer death is treatable. A crop monitoring program together with the appropriate application of suitable insecticide would have protected the bean crop.

219 As to the Third, Fourth and Fifth Plantings, Bell says that the likely cause of death was the failure to apply a herbicide. This allowed weed pressure to increase. In turn, the greater pressure of weeds resulted in more insects which then increased the potential for summer death to occur. Bell's comments in the joint report[20] might be construed as suggesting that both the absence of herbicide and summer death contributed to the plantings' failure. But it is far from clear.

220 In contrast, Taylor is emphatic that summer death caused the failure of those plantings. He says that, without summer death, the crop would have survived, albeit with a reduced yield due to the competition between the beans and the weeds for nutrients and water.

221 I have concerns with Bell's expert evidence.

222 First, Bell's first report came about at the request of Tripodi's former solicitors in this proceeding. The solicitors made an oral request - there was no formal letter of instruction. This means the court cannot be certain of the parameters of the task given to him. He had not been provided with any material from the solicitors prior to inspecting the property on 27 March 2013, including an expert witness code of conduct in accordance with Order 44 of the County Court Civil Procedure Rules 2008 (Vic). Although he was not supplied with a copy of the code of conduct, Bell explained at trial that he had previous experience as an expert witness and provided an accurate summation of the expert witness's role in court proceedings.

223 Secondly, the law firm had provided him with Michael's number, and he met Michael on the land and inspected the crop. Accordingly, he communicated with a key witness in the proceeding, prior to reaching his conclusions about the plant's cause of death. Although Bell said he mostly spoke to Chaffey, it was Michael who explained to him the history of the role that Cumming played in respect of Tripodi's business.[21] Given the disagreement between the parties in this proceeding as to the role Cumming had in respect of the borlotti crops, this conduct is perhaps questionable.

224 Thirdly, Bell's cross-examination also revealed that he had excluded relevant materials from his first report. This lack of detail necessarily affects the court's ability to assess the factual basis for the opinions he provided and the level of comfort the court has in the reliability of the report. This was seen with:

• the absence of referencing in his report of the location in which certain photographs had been taken; and

• his failure to mention the fact he had observed low levels of summer death, and other insect pests on the plantings during his March 2013 inspection.[22]

225 Fourthly, Bell's approach during his examination of the planting, and during the period in which he was gathering information to form the basis of his report, did not seem to be particularly thorough. For example:

• his report indicated that he did not bother to inspect the seedlings themselves, when he examined planted areas overgrown with weeds, to determine their condition. This was despite being asked to opine about the cause of death of the plantings. In cross-examination he said the seedlings were very small and stunted because of weed competition, but admitted it was not mentioned in his report[23] because there were sowings which "were totally lost due to weeds, so I don't know what more you'd need to be looking for in there";[24]

• he had no photographs or evidence of the condition of the plants in January 2013 and did not make enquiries as to their condition at that time with someone like Chaffey. This was despite the fact that when he inspected the property, the First and Second Plantings had been ploughed in, the Third, Fourth and Fifth Plantings had been "slashed off due to weeds" and "weed competition".[25] Rather, he preferred to rely on his experience and to assume that, due to the height of the weeds, the plantings must have been seriously affected by weeds in January 2013.

226 Unlike Bell, Taylor was provided with an expert witnesses code of conduct in accordance with Order 44, and received a formal letter of instruction from Wotton Kearney (which was an appendix to his report). However, his evidence raised other issues and he was, if anything, less impressive than Bell.

227 First, Taylor did not visit the land. Rather, he conducted his examination of the damage to the plants through the use of photographs which were provided to him from the defendant's solicitors. He received documents including photographs taken by Chaffey, and photographs taken by the defendant on different occasions throughout the relevant period. He was provided with electronic and hard copy versions of the photographs. The electronic versions, which he said enabled him to zoom in to see more detailed images of the plants, were not in evidence. Instead, the court was provided with the printed versions of the photographs. Taylor indicated that he was provided electronic versions of the photographs, which were in high resolution.[26]

228 Secondly, although Taylor said that he based his assessment of the cause of death on his examination of the photographs, he could not confirm whether he reached this conclusion before or after receiving the results from the Department of Primary Industries, which indicated that the test samples had shown signs of summer death.

229 Thirdly, Taylor also admitted that in his professional career, he had no prior involvement in assessing or looking at crops affected by summer death.[27] Rather, it appeared he relied upon reading to become aware of research and new findings that had been made in respect of the virus over the years. He first heard of summer death when he was working at the irrigation research institution in the 1980s, when the Myrtleford area was experiencing an outbreak of summer death in its tobacco crop. In cross-examination, he explained that he kept up to date with disease problems in various crops in Australia. He said that through his career, he had seen many similar diseases in other crops, transmitted by insect vectors coming in from surrounding areas.[28] He referenced the 2009 reports and findings of Trebecki, who was the first person to do a comprehensive investigation into the virus in tobacco plants.[29] He said that, between the 1980s and 2009, he kept abreast of this virus and other local issues by subscribing to the scientific magazine published by the Australasian Plant Pathology Society, namely Australasian Plant Pathology. Between 2012-2016 he did not keep informed of developments regarding the summer death virus. Indeed, for a time, he was unaware that the name of the disease had changed.

230 Fourthly, Taylor, like Bell, also failed to include materials in his report which he considered in reaching his opinion because he did not deem them to be "relevant". These materials included:

• text books, summaries and reports on occurrences of borlotti beans contracting summer death;[30]

I note that, he later explained that he did not think it was necessary to include such references because one of the diagnosticians who produced the diagnosis from the tested samples was one of the authors of the book. Taylor then explained that such things confirmed his diagnosis, which was based on his examination of the photographs.[31]

• his investigations into issues such as rainfall during the relevant growth periods.

• the matters he had considered and ruled out as factors as causes of damage to the plants (for example, soil borne pathogens).[32]

231 Fifthly, Taylor, like Bell, was giving his opinion without all relevant information before him. He recognised that he had not been provided with any information concerning the agricultural practices of the plaintiff (despite having requested that such information be provided from them). This is why, for example, he did not know the depth of which the seeds were sown.[33] Additionally, Taylor assumed that the First and Second Plantings were alive when they were ploughed in. As with Bell, the lack of relevant information undermines the strength of his conclusions.

232 Finally, there is some substance in the criticism of Taylor that there was an element of inconsistency between his evidence in court and his joint report with Bell. In court, Taylor said that it was extremely likely that if the First and Second Plantings had not been ploughed in, a good proportion of those crops would have survived and continued to develop. He said it was rare for herbicides such as Mentor and Terbyne to be completely lethal and so plants affected could often recover. Taylor considered that if the herbicides had been applied and subsequent management of the crops had been performed correctly according to the product labels, most of the plants would have survived and then they would have been killed by the summer death virus.[34]

233 In the joint report, Taylor said that ultimately, the death of the First Planting was a result of the application of the Mentor herbicide because the plaintiff ploughed in the crop after observing severe symptoms.

234 In cross-examination, Taylor denied that he had changed his views on the matter and said that the opinion expressed in the joint report was that the cause of death ultimately was the plants being ploughed in. Taylor said that he compromised "a bit" with Bell in order to get through the joint report conclave. This approach is unsatisfactory.

235 The court expects experts to give their honest assessment of the situation and change their opinions only when compelled by the evidence or an acknowledgment of error. Experts are not to compromise their views "a bit" in order to "get through" the conclave.

236 In summary, I would accept as probably correct the four matters agreed by Bell and Taylor set out in paragraph 218 above. While it is possible that summer death was a factor contributing to the death of the Third, Fourth and Fifth Plantings, I am not satisfied, and make no finding, that the summer death virus:

(a) would have destroyed or badly affected the First and Second Plantings if they had not died through the application of the Mentor and Terbyne;

(b) destroyed or badly affected the Third, Fourth and Fifth Plantings.

Did Tripodi suffer any loss and damage as a result of SHC's negligence and if so, how much?

237 In relation to the issue of loss and damage, Tripodi ran two alternate cases. The initial case was that, by reason of the breach of retainer and/or negligence of SHC, Tripodi had lost the benefit of a contract to sell shelled borlotti beans to Woolworths. The alternate case which it raised in the Further Amended Statement of Claim dated 1 September 2016 was that Woolworths committed to buy from Tripodi, or gave Tripodi the opportunity to sell to Woolworths, its range of freshly shelled legumes, including borlotti beans, when they became available. Tripodi said that SHC's actions or conduct prevented Tripodi from taking up that opportunity and it thereby suffered loss and damage.

238 The alternate claim arose on the last day of hearing in July 2016 when, after SHC had made its final submissions, Tripodi sought to amend its claim to raise this new allegation regarding damage. After hearing argument, I reserved my decision before allowing the amendment. SHC appealed my decision unsuccessfully to the Court of Appeal. The matter was remitted to this court for the trial to continue and there was further evidence and submissions for another week in March 2017. While a draft judgment dealing with background issues and credit and some legal points was prepared after the initial hearing, it has taken some time to finalise the details of the alternate case raised by the plaintiff.

239 In its Amended Statement of Claim, Tripodi alleged that it entered into a supply agreement with Woolworths to supply it with packaged shelled borlotti beans during the 2012-13 season.

240 In its Further and Better Particulars of the claim dated 13 May 2015 the plaintiff provided additional particulars of the contract alleged in paragraph 7 of its amended claim. Tripodi said that the Woolworths contract was oral. It comprised in part face to face conversations between Michael and Jina Tripodi and Lisa Cork of Fresh Produce Marketing Limited on behalf of the plaintiff, and Anthony Klatt on behalf of Woolworths at a meeting held in early July 2012. Further, there was a telephone conversation soon after that meeting between Michael and Klatt.

241 Tripodi said that there were terms of the agreement to the following effect:

• Woolworths would purchase from Tripodi individual 250g packets of freshly shelled borlotti beans at a price of $3.30 per unit.

• Tripodi would supply the borlotti beans between early December 2012 and late May 2013.

• Tripodi's supply of borlotti beans was to be regular and there were to be a minimum of three deliveries per week to Woolworths' distribution centres in Victoria, New South Wales, Queensland and South Australia.

• There was to be a volume rebate to Woolworths of 5% of the invoiced price of $3.30 per unit.

242 When opening Tripodi's case at trial, its counsel said that, when Tripodi gained approval for its quality assurance, entered into terms of trade on an unspecified price and obtained a vendor number from Woolworths, none of these matters amounted to a fixed contract with Woolworths. Counsel said that nothing more definite happened thereafter in the sense of contractual terms regarding the borlotti beans. He said that the supply of peas to Woolworths was "in effect, a trial run of the whole range" and that once Woolworths was "satisfied with the quality of the product they would have been able to receive deliveries of borlotti beans" and other products. Thus, Tripodi's claim was for actual losses - effectively assuming a contract between Tripodi and Woolworths.

243 Tripodi in its final submissions at the 2016 hearing relied heavily on the evidence of Klatt. Saad and Chase reported to him and were subordinate to him. If there were a difference of opinion between them, Klatt was the ultimate decision maker.

244 Tripodi argued that because six of the twelve plantings of borlotti beans in 2012 were unsuccessful due to the conduct of SHC, the season was a failure for Tripodi because it could not give Woolworths the twelve weeks supply it required. As a result of the five plantings which failed by January 2013, Tripodi knew that Woolworths would not buy the later plantings even if they were successful. Tripodi said that for the 2012-13 growing season, Woolworths would have bought as many borlotti beans as Tripodi was able to produce. Tripodi alleged that it lost $1.35 million for the season and that, as a result of the serious effect of the losses on its cash flow, Tripodi's future production of fresh legumes was set back for 5 years. The loss of business with Woolworths over that period, which Tripodi claimed, totalled another $2.9 million. The only damages claim which Tripodi made concerned in effect the loss of profit in its dealings with Woolworths - it did not pursue a claim for expenditure incurred in connection with the potential contract.[35]

245 SHC argued that at no time did Tripodi enter into any agreement with Woolworths whereby Woolworths would purchase the freshly shelled borlotti beans in the manner alleged in Tripodi's pleaded claim and/or as contended by Tripodi's counsel in opening its case.

246 In examining the issue of whether or not there was a contract, it is necessary to consider the oral and written evidence on the topic.

247 When he gave his evidence, Michael agreed that Tripodi was proposing to prove to Woolworths that it was a credible supplier through its supply of shelled green peas.[36] He agreed that, until Tripodi proved to Woolworths that it was a credible supplier, Woolworths was not proposing to buy any other products in the Edible Gems range. Michael accepted that Woolworths rejected various deliveries of shelled peas because they were underweight. This was a serious issue for Woolworths not only because of the harm it might cause to the relationship with customers, but also because of the risk it created for Woolworths in breaching applicable legislation and risking its reputation.

248 In his evidence-in-chief, Klatt spoke of meeting Michael and Jina Tripodi and Lisa Cork in July 2012. He said that Saad also attended this meeting because he was responsible for managing the relevant category of goods to which the borlotti beans belonged. Klatt said that the plan in respect of the Edible Gems range was to begin with the peas and then roll out the rest of the products later. When Woolworths carried out a trial of a product, it made no commitment to the supplier. The point of conducting the trial was to know whether the product would sell to customers and Woolworths wanted to minimise wastage.

249 In about July 2013 Klatt told Michael and Jina that Woolworths would purchase 5,000kg of shelled green peas per week. This was confirmed in a memorandum of understanding dated 18 July 2013.[37]

250 Klatt said that, if Woolworths proposed to buy the shelled borlotti beans from Tripodi, it would have undertaken a trial of the borlotti beans as it had with the peas. However, the trial in respect of the beans would not have been as rigorous because aspects of the Tripodi production process would already have been established through the pea trial.

251 When he was cross-examined, Klatt said that Woolworths had to be confident that a supplier was capable of providing an ongoing supply in order for Woolworths to stock the supplier's products. Woolworths did not wish to have an interrupted supply of products. Thus, Woolworths required a better supply than the interrupted supply which Tripodi provided in relation to the shelled peas. As category manager, Saad had the day to day responsibility for buying products from suppliers and for running trials for new products.

252 Before committing to purchase 5,000kg of shelled peas per week, Klatt said the situation with Tripodi was "let's see how we go; prove to us you're a credible supplier".

253 Klatt confirmed that Woolworths was very concerned about Tripodi's underweight supply of product. This exposed Woolworths to liability for a breach of fair trading and measurement legislation. Woolworths was also concerned about the rejection of products supplied by Tripodi.

254 Until he left Woolworths in about September 2013, Klatt said (and I accept) that he had issued only one Memorandum of Understanding commitment to Tripodi which covered the quantity of peas, the price of peas, and exclusivity in relation to other varieties of legume.

255 Klatt said he did not make any commitment in terms of quantity or price for any other item in the Edible Gems range apart from the shelled peas because none of those other products was available.

256 In the course of his evidence, Saad said that there was no agreement to buy any products from Tripodi, other than the shelled peas. While there were discussions about different types of beans, Woolworths remained focused on getting the peas up and running and this presented several challenges to the company. He said that because of the focus on the peas, Woolworths never had a look at any of the beans. While Woolworths was aware that there were other products in the range which might have been available down the track, its focus in and after July 2012 was on the peas. He acknowledged that, if the peas went well, then Woolworths may have explored some of the other products. Saad said that if the peas were up and running successfully, Woolworths may have had a discussion about trialling other products. He said the process was a progression.

257 Chase, who took over responsibility as category manager from Saad, had continuing conversations with Michael and Jina about quality issues and rejections experienced with the peas after July 2013. He said that Woolworths was keen on the Edible Gems range and was prepared to purchase other products in that range in addition to peas if they became available.

258 On 2 October 2012 Tripodi signed Vendor Trading Terms with Woolworths. Clause 1(a) of those terms stated:

"You must supply and deliver the Goods in accordance with the time, location, volume and other requirements set out in these Terms, the relevant Purchase Order and the relevant Trading Guide. We are under no obligation to issue a Purchase Order or any number of Purchase Orders to you over a period of time."

SHC contended, correctly in my view, that the effect of this clause was such that Woolworths had no obligation to purchase any products from Tripodi unless or until it issued a Purchase Order.

259 Clause 19(h) of the trading terms read as follows:

"These Terms constitute the entire agreement between the parties in relation to the subject matter. All previous negotiations, explanations, understanding, representations, warranties, memoranda, commitments or information provided in relation to, or in any way affecting the subject matter of this document are merged in and superseded by this document and will be of no force or effect whatsoever and no party will be liable to any other party in respect of those matters."

As I understood SHC, its argument was that this entire agreement clause prevented Tripodi from placing any reliance for contractual purposes upon any previous discussions, representations or negotiations with Woolworths.

260 On the basis of the evidence and submissions, I find that there was no contract between Tripodi and Woolworths for the latter to purchase any quantity of borlotti beans from Tripodi. The only agreement between the parties related to peas. There was no agreement as to the price or quantity of borlotti beans to be purchased. Klatt said, and I accept, that he had made no decision in relation to the quantity and price of any other products in the Edible Gems range produced by Tripodi. While there were discussions about other products such as borlotti beans and edamame, there were no agreements made. There were no settled terms about such things as the specification, quality, delivery dates and prices of the potential products. Because there were no contracts in relation to borlotti beans, I would not award Tripodi any damages on this claim.

261 In addressing the claim for loss of opportunity, I will first deal with the applicable legal principles before examining the claim made by Tripodi and the evidence supporting it.

262 In its further amended statement of claim dated 1 September 2016, Tripodi alleged that by reason of the conduct of SHC, Tripodi lost the opportunity to sell its borlotti beans to Woolworths and to sell its range of freshly shelled legumes when they became available. Tripodi contended that it lost the chance to negotiate and effect a sale of its borlotti bean crop to Woolworths in the 2012/13 growing season and thereafter. Tripodi argued that if it had grown a full 12 week supply of borlotti beans, then Woolworths would probably have bought them due to the interest expressed, and commitment given, by Klatt.

263 SHC contended that there was no contract or commitment by which Woolworths was obliged to buy beans from Tripodi. Further, SHC submitted that Tripodi faced several contingencies in achieving the sale to Woolworths. These included:

(a) being able to process and package freshly shelled borlotti beans to a standard acceptable to Woolworths;

(b) satisfying Woolworths that it was a credible supplier by successfully establishing continuity of its supply of freshly shelled green peas to a standard acceptable to Woolworths; and

(c) agreeing with Woolworths upon terms of supply for borlotti beans and completing Woolworths' required processes for the supply of a new product, including a product specification, quality assurance certification and a trial for marketability.

264 SHC argued that Tripodi had not advanced any, or any satisfactory, evidence to show how it could satisfy these contingencies. In those circumstances, SHC contended that Tripodi failed to discharge its evidentiary onus of showing that the allegedly lost opportunity was more than merely speculative. Also, SHC argued that Tripodi had failed to show that SHC had caused the alleged loss of opportunity.

265 The law with respect to loss of opportunity in a commercial context was examined by the High Court in Sellars v Adelaide Petroleum NL.[38] In that case, Adelaide Petroleum NL entered into negotiations with two companies, Poseidon Limited and Pagini Resources NL, with the object of persuading one of them to acquire the directors' shareholdings in Adelaide as part of a reconstruction arrangement. In May 1988, Pagini submitted a draft contract to Adelaide. In June 1988, Adelaide decided to enter heads of agreement with Poseidon and deal with that company instead of Pagini. Shortly after the heads of agreement were signed, Poseidon notified Adelaide that the individual who prepared and executed the document had exceeded his authority, and so the heads of agreement did not reflect the will of Poseidon's board. Adelaide treated this conduct as a repudiation of the heads of agreement, which it then accepted. Adelaide recommenced negotiations with Pagini and ultimately made a new agreement with that company which was less advantageous to Adelaide than the draft agreement produced by Pagini in May.

266 Adelaide sued Poseidon on the basis that it lost the benefit of the agreement it would have had with Pagini if Poseidon and the employee, Sellars, had not engaged in misleading and deceptive conduct which induced Adelaide to enter the heads of agreement with Poseidon instead of Pagini.

267 The trial judge found for Adelaide and said that Poseidon breached section 52 of the Trade Practices Act 1974 (Cth) ("Trade Practices Act") and that Sellars was involved in that contravention. The judge awarded Adelaide $1.2 million in damages for the lost opportunity. The Full Court of the Federal Court dismissed Poseidon's appeal, as did the High Court in a unanimous decision.

268 In the High Court, the plurality discussed the assessment of damages for loss of a chance in contract, tort and under the Trade Practices Act. Their Honours noted that, in both contract and tort, damages have been assessed by reference to the probabilities or possibilities of what will happen or what would have happened. The court referred to the earlier High Court decision of Malec v JC Hutton Pty Ltd,[39] where the judgment distinguished between, on the one hand, proof of historical facts - what has happened - and, on the other hand, proof of future possibilities and past hypothetical situations. The judges said that the civil standard of proof applied to the first category but not to the second, particularly when it was necessary to determine future possibilities and past hypothetical situations for the purpose of assessing damages. The plurality quoted from the judgment of Deane, Gaudron and McHugh JJ in Malec,[40] where they explained the approach to be taken in these terms:[41]

"If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. ... But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability."

269 The plurality said that the approach in Malec regarding the proof of future possibilities and past hypothetical situations should not be confined to personal injury cases but applied equally to the assessment of damages for the loss of a commercial opportunity.[42] Thus, a commercial opportunity can be valuable even when the probability of its occurrence is less than 50 per cent.

270 The plurality said that the general standard of proof in civil actions will normally govern questions of causation and whether a plaintiff has suffered loss and damage. A plaintiff must prove on the balance of probabilities that it has suffered some loss and damage - in this case, the loss of a commercial opportunity which has some value that is more than negligible. The court observed that it is no answer to say that a commercial opportunity was valueless on the balance of probabilities because to do this is to value the commercial opportunity by reference to a standard of proof which is inapplicable.

271 SHC placed particular emphasis on the separate judgment delivered by Brennan J in Sellars v Adelaide Petroleum NL,[43] where His Honour made the following observations:[44]

(a) the existence of a compensable loss and the amount of compensation is ascertained by enquiring whether and by how much that person is worse off as a result of acting, or refraining from acting, on the inducement of false representations by the other person;

(b) where damage is the gist of the action, as in this case, a lost opportunity may or may not constitute compensable loss or damage. The existence and causation of a compensable loss cannot be proved by reference to an antecedent promise to afford an opportunity

(c) Gates' case[45] showed that, in the context of section 82 of the Trade Practices Act, the loss of a mere opportunity to acquire a benefit is not in itself a loss. But the loss of the benefit will be such a loss if the plaintiff proves that he could, and would, have taken the opportunity and that the benefit would then have been yielded. That is tantamount to saying that the benefit is a loss in respect of which an amount may be recovered if the links in the chain of causation up to the loss of the benefit are proved. In this respect, the law or torts is no different from the law under the Trade Practices Act.

(d) the opportunity to acquire a benefit or to avoid a detriment can be more than a mere opportunity when the opportunity itself is something of value, for example, an opportunity to tender for a contract. An opportunity to acquire a commercial benefit can be valuable not only when it probably will result in a financial return but also when it offers a substantial prospect of a financial return. Provided an opportunity offers a substantial and not merely speculative prospect of acquiring a benefit which the plaintiff sought to acquire, the opportunity can be held to be valuable.

(e) a party must prove the causal connection between a loss of opportunity and the defendant's tortious conduct before questions of assessing the loss arise.

(f) although the loss of a valuable opportunity and the assessment of its quantification are concepts which can be logically separated, in practice it will usually be the same body of evidence which tends to establish both the existence of a loss and the amount to be recovered. That evidence may establish the loss of a valuable opportunity more clearly than the value of the opportunity lost.

(g) to prove the substantiality of a prospect of acquiring a benefit and what would have been the plaintiff's actions if the opportunity had been offered, it will usually be necessary to tender evidence to establish the plaintiff's objectives and the contingencies in the way of their achievement. Evidence of that kind will bear upon both the existence and the value of the lost opportunity.

(h) there is no reason why the balance of probabilities should not be the standard of proof required to establish both causation and the existence of a loss, though that standard is inappropriate to the assessment of the amount of the loss where the assessment involves an evaluation of future possibilities.

272 As noted above, the law distinguishes between proof of an historical fact, namely what has happened, and proof of future possibilities or past hypothetical situations. Historical facts must be established by a plaintiff on the balance of probabilities whereas future possibilities and past hypothetical situations are determined by reference to the court's assessment of the prospects of success of the opportunity had it been pursued.

273 In Sellars v Adelaide Petroleum NL,[46] all judges agreed in substance with the approach adopted by Lord Diplock in Mallett v McMonagle,[47] where he said:

"The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary function in civil actions of determining what was. In determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards."

274 The Victorian Court of Appeal addressed the issue in Price Higgins & Fidge v Drysdale.[48] There, Winneke P, with whom Ormiston and Charles JJA agreed, said:[49]

"While the plaintiff is required to prove to the appropriate standard of proof the existence of a valuable loss of opportunity and the fact that it was caused by the defendant's negligence, the plaintiff is not required to prove, on the balance of probabilities, the value or extent of the loss because of the difficulties associated with proof of past hypothetical fact situations; in those circumstances the value or extent of the loss is to be ascertained by reference to degrees of possibilities or probabilities. Thus, in Sellars_' case at 355 Mason CJ, Dawson, Toohey and Gaudron JJ stated the principles thus:_

On the other hand, the general standard of proof in civil actions will ordinarily govern the issue of causation and the issue of whether the applicant has sustained loss and damage. Hence the applicant must prove on the balance of probabilities that he or she has sustained some loss or damage. However, in a case such as the present, the applicant shows some loss or damage was sustained by demonstrating that the contravening conduct caused the loss of a commercial opportunity which had some value (not being a negligible value), the value being ascertained by reference to the degree of probabilities or possibilities.

Brennan J at 364-5 described the relevant principles as follows:

Provided an opportunity offers a substantial, and not merely speculative, prospect of acquiring a benefit that the plaintiff sought to acquire ... the opportunity can be held to be valuable. And if the opportunity is valuable, the loss of that opportunity is truly "loss" or "damage" ... for the purposes of the law of torts.

...

However, a causal relationship between the loss of such an opportunity and the defendant's contravening or tortious conduct must be proved before any issue of the assessment of the amount of the loss arises."

275 More recently the Victorian Court of Appeal in Masters Home Improvement Pty Ltd v North East Solutions Pty Ltd[50] summarised the position succinctly where it said:

"In considering damages for loss of a commercial opportunity, the court asks first whether there was a commercial opportunity of some value (which is more than speculative or negligible); that is, was there a chance? Secondly, the court looks to whether that opportunity has been lost; that is, would the plaintiff have pursued the opportunity? The third step is to consider what amount should be awarded having regard to the prospects of success if the opportunity had been pursued. In taking this third step, the courts' task is to apply a discount which reflects the prospects of success. This is sometimes referred to as a Sellars discount."

276 In Tabet v Gett,[51] Kiefel J expressed the view that opportunities to acquire commercial benefits are frequently valuable in themselves.[52] So long as the opportunity provides a substantial, and not just a speculative, prospect of acquiring a benefit, it can be regarded as valuable and hence, its loss constitutes recoverable damage in a claim for tort or under statute for misleading and deceptive conduct.

277 In the further amended statement of claim dated 1 September 2016, Tripodi framed its loss of opportunity claim in the following terms:

"7A. Further and in the alternative to paragraph 7, the Plaintiff had an opportunity to sell its Borlotti Beans to Woolworths Supermarkets and made a commitment to and/or provided an opportunity to the Plaintiff to sell to Woolworths Supermarkets the Plaintiff's range of freshly shelled legumes including Borlotti Beans when they became available.

PARTICULARS

The commitment was oral and given at a face to face meeting held 3 July 2012 between Tony Klatt and Mario Saad of Woolworths and Michael and Jina Tripodi and Lisa Cork of the Plaintiff and in a subsequent telephone conversation between Michal Tripodi and Tony Klatt.

The substance of the commitment was the Woolworths would purchase the whole range of freshly shelled legumes, including Borlotti Beans, of the Plaintiff when they became available.

The commitment is confirmed in the evidence of Tony Klatt at Transcript pp 365 L 18-23, 366 L 13-22, 368 L 1-2, 371 L2-15, 359-362, 368 L 23-28, 377 L 24-27, 379 L 2-17 and also in an email dated 18 July 2013.

7B. By reason of the actions of the Defendant summarised in paragraph 50 herein, the Plaintiff lost the opportunity to supply Borlotti Beans to Woolworths Supermarkets and suffered loss and damage.

PARTICULARS

The loss and damage suffered by the Plaintiff is set out in two reports of Bruce Wilkinson's reports (sic) dated 11 August 2015 and 9 October 2015 respectively.

278 Hence, the essence of the claim is that Tripodi lost the opportunity to supply legumes, including borlotti beans in particular, to Woolworths as part of its product range. The quantification of the loss is set out in the reports dated 11 August 2015 and 9 October 2015 of the plaintiff's expert Bruce Wilkinson. As noted previously, the claim has two components: a claim for the 2012-2013 growing season and a claim for the future seasons from then until the 2017-18 season.

Evidence regarding growing and producing legume products

279 While Michael's early intention was to plant the borlotti beans in September 2012 for harvest in December that year, in fact Tripodi did not initiate the First Planting of beans until 16 November 2012. The usual growing time was about 90 -100 days. Tripodi expected to harvest the crops which were planted in mid-November 2012 in around the middle of February 2013.

280 In the presentation which Tripodi made to Klatt and Saad on 3 July 2012, Tripodi suggested that the beans would be available for about 6 months from December 2012 until May 2013. Tripodi's sales records show that the final sale of beans in the wholesale market occurred on 22 May 2013. The evidence thereby indicates that the window for sale and supply of borlotti beans to Woolworths was between about mid-February 2013 and mid-May 2013.

281 Accordingly, in order to succeed in recovering damages for the loss of opportunity claim for that growing season, Tripodi must prove that but for the negligence and/or breach of contract by SHC, it intended to supply, and had a more than negligible likelihood of supplying, borlotti beans to Woolworths during that time consistently with Woolworths' requirements.

Chronology of events regarding processing and packaging of legume product

282 The issue of processing and packing of legumes had a history for Tripodi. Before committing to leasing property to grow the borlotti beans, Tripodi had undertaken small trials of growing beans and also examined the packaging of the product.

283 In August 2011, Michael was working with Scott Templeton of Proseal Australia ("Proseal") to find a suitable tray and covering film for the shelled beans. Tripodi installed a Proseal sealing machine at its plant in about November 2011. Around the same time, Tripodi bought a second pea harvester from FMC Technologies Ltd, a multi-head weigher and optical sorter. The harvester could be modified to harvest beans.

284 John Connolly, the agent for FMC Technologies Pty Ltd, installed the optical sorter in February 2012 and Protech, and Italian company, commissioned the machine shortly thereafter.

285 On 10 March 2012, Michael emailed Protech to express his dissatisfaction with the machine and how it sorted his green and coloured beans. Shortly after, Protech performed a technical service on the optical sorter in order to improve its performance.

286 On 21 April 2012, Michael emailed Cork to advise that Tripodi had suspended packing of the Edible Gems products for the time being. Michael also informed Cork that:

• He did not think that Tripodi would be packaging any more beans from the current harvest but would undertake extensive trials to have the position rectified by December 2012 when it proposed to begin harvesting; and
• Tripodi was thinking of using peas as the test product for packaging and shelf life.

287 On 1 May 2012, Michael and Jina received an email from Tony Anevski of Multivac, suggesting that they run an ongoing trial to obtain some process capability and repeatability. Anevski also sought information about their legume product, the specification which Tripodi required and an example of the existing top film Tripodi used in its packaging.

288 In May 2012, Michael engaged in correspondence with various people including Brad Wardrop and Harry Young about finding a solution to the problems with the covering film used in the packaging - the beans were browning and there was considerable moisture and condensation under the film.

289 Also in May 2012, Michael returned the Proseal sealer and tooling plate because they did not perform as Proseal had said they would and, as a result of the problems with the Tripodi product in their packaging, Tripodi had suspended sales of its Edible Gems product. Michael said the product had no shelf life and Tripodi had sustained damage to its reputation.

290 Michael engaged Hazel MacTavish-West to perform tests on the beans and the packaging. Her report noted the loss of colour, shrinking, wrinkling and discolouration of the beans. She suggested dipping beans in lactic acid before packing.

291 On 3 July 2012, Michael and Jina, together with Cork, made a presentation to Klatt about the Edible Gems range.

292 Also in July 2012, Tripodi purchased a check weigher and metal detector from Multivac and Multivac installed a thermoformer machine at the plant.

293 In September 2012, Richard Sammon of Sammon Electrical performed various works at Tripodi's packing shed. The work included altering the control wiring to suit the new process line, reprograming the process line to suit new applications, trialling the new process line and monitoring and adjusting the process line as required.

294 In the same month, Tripodi purchased and installed a de-waterer and Protech performed additional work on the optical sorter so that, amongst other things, the machine was set for trialling with fresh peas.

295 In December 2012, a new Multivac thermoformer was installed, a forced air cooling conveyor was purchased and installed and both the check weigher and metal detector, together with the hydro cooler, were installed.

296 In late December and in January 2013, Michael exchanged emails with Protech regarding further problems with the optical sorter.

297 In July 2013, Michael emailed Terry Broderick of Linco Food Systems about the weigh head. Michael requested an urgent full service of the weigh head because there were problems with the machine and Michael suspected sabotage. Michael stressed that providing underweight product to supermarket chains was a very serious matter.

298 By email dated 8 October 2013, Chris Chase of Woolworths queried with Michael what Tripodi was doing to produce quality peas for the shelf. Chase said that Woolworths was still seeing yellowing and browning in the stock and that it was dumping a lot of stock at significant cost.

299 After advising Chase by email dated 16 October 2013 that Tripodi was doing more extensive trials with peas and had come up with additional steps to improve the 10 day shelf life, Michael, by a further email dated 27 October 2013, told Chase that after meeting Dr Laurent Vincent from Amcor Flexible, it appeared that Tripodi had been using the wrong top web and that Amcor was willing to work with Tripodi to ensure they used the correct top film which would provide optimum shelf life.

300 By email dated 8 December 2013, Chase asked Michael to contact him as soon as possible because Woolworths was still dumping a significant volume of product due to continued quality issues with the peas. Chase said that Woolworths needed to remove the product from stores until it met specification and maintained quality.

301 By email dated 16 December 2013, Michael told Chase it was best to drop back the use by date to seven days, which was the original date on the Edible Gems packaging.

302 By email dated 10 February 2014, Michael advised Chase that Tripodi had now received the new top film for packaging the freshly shelled peas. Tripodi was doing in-house trials as well as organising independent trials. According to Tripodi, the testing went well and Michael sought a meeting with Chase after 15 April 2014 in order to explain the independent test results and the improvements which had resulted.

303 Tripodi sent some newly packaged peas to Woolworths for testing. By email dated 23 April 2014, Chase advised Michael that in relation to the samples received, there was too much air space within the pack, some of the packs had collapsed and there was water condensation in the packs.

304 In May, Michael sent Chase a report by Jina of test results using the new Optifresh film.

305 Chase responded to Michael about three weeks later on 11 June 2014 expressing various concerns about the shelf life test results including moisture in the pack, the smell when the pack was opened after Day 8 and the yellowing of some peas which was observed after Day 5.

306 From the above chronology, it is apparent that some issues concerning the packaging and shelf life of the peas supplied to Woolworths remained ongoing in June 2014. Plainly, this was well after the time period applicable to the initial damages claim.

307 A number of things emerged from this evidence regarding the processing line and packaging of Tripodi's legume products.

308 First, it was apparent that there were still continuing issues with the processing line and packaging in June 2014.

309 Secondly, viewed objectively, Tripodi had not convinced Woolworths by June 2014 that it could successfully package the shelled peas on a consistent basis.

310 Thirdly, there were problems experienced with the weight of the pea product produced for Woolworths. Throughout 2013 Woolworths rejected consignments of peas for being underweight. This was a significant issue for Tripodi and Woolworths. Such an error exposed Woolworths to possible sanctions and reputational damage in relation to trade measurement legislation. It also posed a significant risk to any ongoing commercial relationship between Tripodi and Woolworths.

311 Fourthly, there were problems with the optical sorter. This was relevant because to produce freshly shelled borlotti beans, Tripodi had to remove immature, green beans from its harvest. While this could be done by hand, Klatt suggested that manual labour would not produce a sufficient volume of product for Woolworths to sell in its stores. Further, I would infer that, at least over the longer term, manual labour might prove more expensive than a machine in performing this task. Thus, it seems that the optical sorter was an important item of equipment in the processing line. Sammon said it was not working properly in the first quarter or half of 2012. There were more problems with the optical sorter in December 2012.

312 Fifthly, there was no evidence that Tripodi conducted any trials for processing borlotti beans after about mid-2012. There was a reconfiguration of the processing line in 2012, especially from about September, when Tripodi decided to focus the plant on the processing and packing of freshly shelled peas. To the extent that the processing line included machinery which had not previously been in the configuration of the processing line for beans, there was no basis to infer that the line would necessarily handle borlotti beans in an appropriate manner.

313 Finally, the operation of the processing line at Tripodi's plant between December 2012 and April 2013 was restricted. Both Sammon and Michael agreed that between about 17 December 2012 and 17 January 2013, the processing machinery would operate only through manual operation. Equipment was still being trialled at this time. While Tripodi was able to produce over 14,000 punnets of shelled peas between 17 December 2012 and 4 January 2013, it seems that, if the processing line had been operating automatically, its capacity would have been significantly greater. However, I accept that the processing line for peas was capable of working during this time.

314 Sammon said that due to electrical work he performed on the processing line between 5 March 2013 and 12 April 2013, the line was not operational at all during that time.[53] Michael agreed the line was not operative between those dates.[54] It is perhaps to be noted that this limited operation was not especially significant in relation to the peas because there were supply issues in 2013. For this reason, the first supply of peas to Woolworths in the trial period was for 11 days between 17 December 2012 and 4 January 2013.[55] Tripodi resumed supply on 6 April until 3 May 2013. Then another break followed until Tripodi began supply again on 3 June 2013. It was unclear from the evidence whether, had Tripodi been wanting to process beans at these times, the line would have been available for use.

315 Tripodi grew its peas in Queensland and Bairnsdale in Victoria. The borlotti beans were grown in north western Victoria near Lake Boga. Thus, Tripodi apparently contemplated that it would process and package two different crops at the same time for Woolworths. No detailed evidence was given about how precisely Tripodi proposed to cope with this. However, given the time and money Tripodi spent in growing the crops, negotiating with Woolworths, procuring and installing machinery and liaising with experts about packaging trays and film, I assume that Tripodi had planned a response to the work demands it expected to face. This assumption might be unwarranted in circumstances where:

• the processing plant at Tripodi's farm was set up from about September 2012 to process peas;

• the plant was differently configured for processing peas and beans and required different equipment depending upon the product being processed.

(a) in 2014, Tripodi was still having trouble with the packaging of its peas, such that there was discolouration and a less than expected shelf life with resultant wastage for Woolworths.

(b) from time to time in 2012 and 2013, there were problems with the machinery and the processing line.

(c) there had been no trials of borlotti beans on the processing line after it was reconfigured in mid to late 2012 to process peas.

(d) the processing line was only capable of manual operation between January and March 2013 and was not operational between 5 March and 12 April 2013 due to electrical work being performed.

(e) having regard to these matters, it was unlikely that Tripodi had the ability to continuously process borlotti beans at its plant in and after December 2012 to the standard or specification required by Woolworths (assuming the beans had been available).

317 As noted above in paragraph 263, SHC referred to several contingencies which it argued would affect Tripodi's claim for damages. The chronology of events and findings made above show that there was some uncertainty about the first contingency, namely, Tripodi's ability to process and package the freshly shelled beans to a standard acceptable to Woolworths.

318 The second contingency was Tripodi's need to prove to Woolworths that it was a credible supplier. The method chosen for this was by supplying freshly shelled peas. As noted before, the supply of peas was intermittent between December 2012 and January 2014. Tripodi supplied no peas after 1 January 2014. Both parties agreed that peas would be the product by which Tripodi would prove its credentials as a credible supplier.

319 I have previously referred to the interrupted nature of the pea supply. Klatt was happy with the trial of the peas between December 2012 and January 2013 and wanted to sell them in Woolworths stores. For Klatt, the purpose of the initial trial was to see if Tripodi could meet the specification, work out the number of packets sold in each store and the marketability of the product with consumers. Proving a supplier can meet a specification requires a test period of some months.[56] Klatt was well disposed towards Tripodi because of the potential products available to Woolworths but Woolworths never committed to buying any products other than peas.

320 This is consistent with the evidence of category manager Saad who said that the initial focus was on peas and once they were "up and running", Woolworths would have probably explored other products in Tripodi's range.

321 In August 2014, Woolworths and Tripodi were still working together on the need for improvements in the appearance and shelf life of the peas. But it appeared by August 2014[57] that if Tripodi were to recommence the pea supply, then Woolworths wanted Tripodi to perform another 12 week trial so Woolworths could assess Tripodi's performance in terms of sales and profitability.

322 So, as with the first contingency, the evidence indicated that there were issues affecting the supply of freshly shelled green peas to Woolworths. Nevertheless, notwithstanding the issues which had arisen, Tripodi sold about $600,000 worth of peas to Woolworths over the period from December 2012 to January 2014.[58] And although Woolworths, if it had chosen, could have terminated its arrangements with Tripodi, it chose to keep the relationship on foot and accepted the intermittent supply of peas which Tripodi provided. Hence, even though Tripodi did not always meet the standards and specifications formally required by Woolworths, the supply of peas and the arrangement between Woolworths and Tripodi continued.

323 I regard this point as significant because it reflects the crucial difference between, on the one hand, rights and responsibilities as discussed between parties or contained in a written document, and on the other hand, the practical realities of the interaction between the parties.

324 I suspect the attitude underlying this approach by Woolworths derived from Woolworths' determination to be the leading supermarket in the fresh food segment. Klatt spoke of the extensive work done by Tripodi and the resources employed, including the engagement of McKinsey's, the international consulting firm, to improve Woolworths' performance and to identify a significant market opportunity in the fresh food area. This was apparently a unique concept in the major supermarket chains at the time and Woolworths was keen to capitalise on the opportunity created by offering a range of fresh legume products for customers and creating a special destination for them. This explained Woolworths' enthusiasm and forbearance even when there was the lack of continuity in supply or other issues affected the product.

325 Thus, notwithstanding the failure by Tripodi to consistently produce a successfully packaged pea product, I expect that Woolworths would most likely have not let a problem of this kind prevent it from taking Tripodi's supply of borlotti beans in 2012-13 season (and thereafter) when it became available. To reject it for this reason would have been inconsistent with its attitude and conduct in relation to the supply of peas.

326 In making this comment, I do not overlook the other problems such as the rejection of peas due to weight-related issues and the failure by Tripodi to adduce any evidence of the processing and packaging of the borlotti beans at its plant after about mid-2012.

327 The weight problems were attended to by Tim Stergioulas in August 2013. He said that fans relating to the cooling system affected the weights on the weighing machine. This was a more benign explanation than the sabotage which Tripodi spoke of.

328 As to the trials, by about September 2012, the processing line was designed to deal with peas and not beans. It was also apparent from Sammon, the electrician who performed most of the wiring at Tripodi's plant, that peas and beans required different equipment so that depending upon whether it was peas or beans being processed, the particular items such as the hydro cooler, bin tipper, tri-packs elevator and hopper, had to be removed from, or inserted into, the processing plant.

329 The third and final contingency referred to was that, in order to sell borlotti beans to Woolworths, Tripodi had to have an agreement with Woolworths on the terms of supply. This involved the completion of certain processes required by Woolworths in relation to a new product, including a specification, quality assurance certification for the product and completion of a trial. There was no evidence that any of these things were done before November 2012 when Tripodi commenced the first planting of borlotti beans. Tripodi, through Michael, appeared to assume that Woolworths would buy any borlotti beans which Tripodi grew.

330 While there was a product specification and Woolworths' quality assurance certification for the peas, there were no equivalent documents for the borlotti beans. Nor was there any evidence that Tripodi sought to obtain a specification and certification for the borlotti bean product.

331 However, I do not regard these issues as determinative or insurmountable. Indeed, I find that Tripodi and Woolworths would probably have worked out contractual arrangements between them in relation to the beans, just as they had with respect to the peas. Given Woolworths' interest in having available to its customers the fresh legume product and Tripodi's ability and willingness to supply the beans, it defies reality to suggest that these matters would not have been resolved.

332 Thus, the position with the contingencies is that there was uncertainty about both Tripodi's ability to be a credible supplier as evidenced through its pea supply, and Tripodi's ability to process and package freshly shelled borlotti beans in a way which satisfied Woolworths' requirements.

333 Having regard to the evidence, I find that if Tripodi had been able to grow and provide at least a twelve week supply of borlotti beans in accordance with Woolworths' specifications, then Woolworths would most likely have bought those beans for sale through its supermarkets. Before December 2012, Tripodi had engaged in extensive dealings with Woolworths to ascertain its attitude to selling freshly shelled legume products. Woolworths was enthusiastic because it was keen to deal with farmers in order to gain access to and sell such fresh products to its customers.

334 Tripodi's actions make apparent that it was keen to take advantage of the enthusiasm shown by Woolworths to provide product for sale. It incurred substantial expenses in leasing land, preparing that land, obtaining seed, managing the plantings, and buying or otherwise obtaining both harvesting and packing machinery. Tripodi's conduct evidenced a clear desire to take up the opportunity and grow product for Woolworths to sell.

335 While there are no guarantees about the situation which would have unfolded if Tripodi had managed to produce borlotti beans successfully from its plantings, there was in my view a more than speculative chance that, but for the conduct of SHC, Tripodi could and would have grown borlotti beans for sale to Woolworths in accordance with its specifications.

336 While SHC contends that there are contingencies which Tripodi had to satisfy and its proofs were inadequate, I do not consider that this contention contradicts the view that Tripodi suffered a loss of opportunity in its business dealings with Woolworths.

337 While there was some merit to aspects of SHC's submissions regarding the contingencies, I think that these submissions relate more appropriately to the quantification of the loss rather than its existence. To the extent that SHC points to factors which it says make it less likely that Tripodi would have succeeded in capitalising upon the opportunity to profit from selling borlotti beans to Woolworths, I think that this confuses the applicable test. In general terms, the existence of a valuable opportunity is to be assessed on the balance of probabilities even if it is has only a limited chance of success. The quantification of the loss is determined by reference to the range of possibilities and probabilities reflected in the contingencies.

338 Thus, in my opinion, SHC's arguments about Tripodi's alleged problems in satisfying the contingencies go more to the quantification of the loss rather than its existence. In other words, I do not consider that the case law requires that Tripodi must establish on the balance of probabilities that it would have satisfied all the contingencies and thereby succeeded in exploiting the opportunity Woolworths presented but for the negligence or breach of duty by SHC. If this is the test, then it means that a lost opportunity with a probability of success of less than 50% cannot be recognised as a compensable loss. This is inconsistent with the views of the High Court in Sellars.[59] Rather, if Tripodi establishes on the balance of probabilities the existence of an opportunity of more than negligible value, then the court assesses the likelihood of possible and probable outcomes, including various contingencies, in determining the damages to which Tripodi is entitled as appropriate compensation for that loss.

339 In summary, I find that Tripodi suffered a loss of opportunity of some value due to the conduct of SHC. I do so for the following reasons.

340 First, Tripodi was unable to sell its borlotti beans to Woolworths in the same way as it sold its peas. Tripodi's history with the peas, Tripodi's preparation work and expenditure in growing borlotti beans to sell, and Woolworths' preparedness to buy legumes from Tripodi showed that the opportunity was not merely speculative but substantial.

341 Secondly, Tripodi missed the chance to negotiate with Woolworths about:

• the terms upon which it would supply the beans, including the quantity and price;

• the extent to which Woolworths would enforce strictly the terms of any supply agreement reached;

• the consequences for Tripodi if there were an interruption to, or difficulty with, supply as occurred with the peas; and

• the potential sale of other legumes in the range of products which Tripodi was proposing to produce.

342 Thirdly, merely being able to participate in the negotiation process was valuable for Tripodi. Even if, on an occasion, a vendor loses money on a transaction, the vendor's involvement in the process can be of value. For example, where a party treats the transaction as advertising its goods or raising its profile, or endeavouring to increase the purchaser's awareness of the vendor and its products. There was commercial value in the opportunity which Tripodi had to deal and negotiate with Woolworths. Tripodi was able to successfully conduct a sales pitch to a national company like Woolworths about their legume products. Tripodi was able to sell its peas and reasonably expected to sell its borlotti beans (and other products) too. In my view, this background gave Tripodi an advantage in its dealings with Woolworths: Tripodi was a known entity and ran a bona fide farming operation which was plainly interested in producing product which Woolworths was keen to sell.

343 In relation to quantification of the claim, Tripodi relies upon the expert reports of Peter Bruce Wilkinson of Munday Wilkinson Chartered & Forensic Accountants. Wilkinson filed two reports dated 12 August and 13 October 2015 respectively.

344 Wilkinson is a Chartered Accountant who obtained a Bachelor of Business (Accounting) degree from Royal Melbourne Institute of Technology in 1979. He was admitted as an Associate of the Institute of Chartered Accountants in 1980 and became a Fellow of the Institute in 1994. Since 1981 he has been a registered company auditor and registered tax agent. Wilkinson is a member of the Institute of Chartered Accountants Business Valuation Special Interest Group and the Forensic Accounting Special Interest Group. He has over 35 years' experience in commercial and professional accounting services including auditing, business services and taxation services. Since 1988, he has specialised in forensic accounting, undertaking investigations and the valuation of businesses for commercial, compensation, compulsory acquisition and matrimonial purposes, the preparation of loss of profit assessments, calculating compensation payable on the compulsory acquisition or relocation of businesses and undertaking financial, corporate and fraud investigations.

345 In his reports, Wilkinson sets out his instructions and then lists the information which he had regard to in producing the reports. He did not append the documents relied upon to the reports. [60]

346 Wilkinson's first report involved a calculation for Tripodi's loss in the 201213 growing season in respect of the borlotti beans. He concluded that there was a net loss of $1.37 million. In court, Wilkinson altered this figure to $1.35 million.

347 Wilkinson's second report dealt with the calculation of Tripodi's loss in respect of the beans "going forward from the 2012/2013 growing season". Wilkinson dealt with the financial years ending 30 June 2014 to 30 June 2018 inclusive. He applied a discount factor of 25% to conclude that the net present value of future losses incurred by the plaintiff as at 30 June 2013 was approximately $2.9 million.

348 Wilkinson set out his cost calculations in section 5 of his first report. At paragraph 5.6, he set out a list of assumptions made which include the signing of trading terms with Woolworths in October 2012, a contract price of $13.20 per kilogram and a business volume rebate of 5% being deducted from remittances to Tripodi. Table 6 of the first report lists the major expenses incurred with respect to the planting, establishment and growing of the borlotti beans between about October 2011 and December 2013. The report also made reference to over $600,000 expended on capital items. At paragraph 5.10, he refers to attachment 1 to his report, which lists the costs incurred regarding the production and supply of borlotti beans. He says that this list was supplied by Michael. Wilkinson said that he had not verified that the costs Michael had set out were correct.

349 Section 6 of Wilkinson's first report deals with his assessment of the loss. Paragraph 6.1 sets out the information he relied upon, as advised to him by Michael. This information included the area planted with beans, the yield per hectare, picking costs, packing costs, transport costs and sale price. Using the various figures supplied, Wilkinson calculated the difference between the actual costs incurred and sales achieved on the one hand and the expected costs incurred and sales achieved on the other hand. He concluded that there was a difference of $1.35 million.

350 During his cross-examination, Wilkinson agreed that he had no expertise in agricultural matters and simply conducted the accounting or mathematical exercise based on the material supplied to him. He said that he relied upon the expert report of David Bell, a horticultural and agricultural expert retained by Tripodi for the costs and expenses incurred in growing, harvesting and transporting the beans. Bell calculated this figure as $3.79 per kilogram. Wilkinson agreed that he relied upon the calculations of costs and expenses determined by Bell both for his calculation of the loss in the 2012-13 year and also in his calculation of future losses.

351 The reference to Bell's report which was dated March 2014 but filed on 2 April 2014, is significant. Section 6 of Bell's report deals with his assessment of Tripodi's losses in connection with the failed borlotti bean crop.[61] One of the assumptions which Bell lists is that "growing costs were $37.85/10 kilogram box, which includes soil preparation, seeding, seed, sowing fertiliser, agricultural chemical inputs, irrigation & foliar fertilisers". The problem which the plaintiff faces in this context is that during the course of the trial, I ruled that Tripodi could not rely upon the contents of Bell's report at CB 78-84. This issue arose in a context where the plaintiff's solicitor had written to the defendant's solicitor on 16 August 2015 advising in effect that Tripodi would not seek to rely upon Bell's report for purposes connected with the assessment of damages.

352 Although the plaintiff's counsel argued at trial that Tripodi was still entitled to rely upon the part of Bell's report within section 6, I considered that, on a fair reading of the letter, the plaintiff indicated that it would place no reliance upon that part of Bell's report and therefore, the plaintiff could not resile from that position.

353 In those circumstances, an issue arose as to whether there was any proper factual basis for the opinion which Wilkinson offered regarding losses.

354 Before resolving this issue, it is to be noted that Wilkinson's evidence was also affected by two other matters. First, Wilkinson said that he was provided with a bundle of invoices by Tripodi which were said to be the growing costs associated with the borlotti beans. Wilkinson said that these invoices totalled $547,000. Wilkinson said that in performing his calculations, Bell relied on a figure for total expenses of $550,000. He said that the fairly close correlation between the two figures gave him confidence that the figure arrived at by Bell was reasonable. The difficulty remains that:

(a) this evidence relates to quantum and Tripodi agreed not to rely upon it;

(c) the evidence adduced by the plaintiff does not establish with any precision the nature or source of the invoices, their accuracy or their completeness - that is, were there other expenses which should have been taken into account?

355 Secondly during his cross-examination, Wilkinson agreed that he had assumed wrongly that both plantings 1 and 5 were replanted. He acknowledged that he had thereby overstated the area planted by 11 hectares. Hence, he said that his figure of 74.51 hectares being planted with borlotti beans should really have been 63.51.

356 Wilkinson agreed that he adopted from Michael the figure of 4,908kg as the average yield for each hectare planted with beans.

357 Wilkinson accepted that if there were no contract between Tripodi and Woolworths, and Tripodi had to sell its borlotti beans into the wholesale market at $3.50 per kilogram, then the borlotti bean venture would not have been profitable for Tripodi. Therefore, the assumption of a sale price of $13.20 per kilogram payable by Woolworths under a contract with Tripodi was important from a profitability perspective.

358 On the basis of his figures, Wilkinson agreed that if Tripodi had grown its bean crop as intended in and after December 2012, the beans produced between about 17 March 2013 (being 90 days after the First Planting) and 22 May 2013 (being the last recorded sale date for that year) required Woolworths to purchase a weekly amount of about 12,190kg during that 15 week period.

359 In making his assessment of Tripodi's loss over the longer period, Wilkinson assumed the sale to Woolworths of 200,000kg of shelled borlotti beans. This amount was to increase by 5% per annum in accordance with instructions given by Michael. Based on projections in a document produced by Tripodi in 2013, Wilkinson assumed that Woolworths would buy from Tripodi about 10,250kg per week over a period of about 19 ½ weeks or 8,333kg per week over 24 weeks.

360 The fundamental assumption underlying Wilkinson's calculations was that Woolworths would pay Tripodi a price of $13.20 per kilogram for the shelled beans. The evidence for that assumption was that of Michael. He said that, together with his wife and marketing advisor, Lisa Cork, he attended a meeting with Klatt and Saad at Woolworths' head office in Bella Vista, Sydney. Michael had a presentation to give them which Lisa Cork had prepared. Tripodi said that they discussed price in that meeting. I accept that a price of $3.50 per punnet for the peas was raised and Klatt asked Michael to review his price.

361 Tripodi said that subsequently, about two weeks after the meeting, there was a further discussion between him and Klatt in which Michael agreed to reduce the price by 20 cents. Tripodi said that it was agreed that the weight of each product sold and the price per unit was to be the same for all products which Woolworths agreed to take from Tripodi. Thus Michael said Woolworths agreed to pay $13.20 per kilogram for the beans.

362 When Klatt gave evidence, the plaintiff's lawyers did not address the issues of the price or unit size of the shelled beans or the alleged further discussion directly with him.

363 However, SHC did raise the question to a degree in cross-examination. Klatt agreed that, up until he left his position at Woolworths, he had issued only one Memorandum of Understanding in relation to the legumes from Tripodi and that memorandum concerned peas.[62] If things had worked out well with Tripodi as hoped, Klatt said that he would have issued memoranda of understanding for other products in the range. Klatt said that each product was bought on its own merit. Upon a satisfactory product presentation, he would issue a memorandum of understanding based on a volume and a price. With the borlotti beans, Klatt confirmed that he had not issued a memorandum of understanding and that there was no agreement about quantities or price for the beans. This was consistent with Klatt's evidence that even though Tripodi had performed a trial in relation to the peas, some form of trial was necessary before Woolworths would have contracted with Tripodi regarding the supply of beans.[63] So, from the Woolworths' perspective, there was no agreement on price or quantity. Indeed Klatt's evidence does not disclose any discussion about possible prices for the beans (as opposed to the peas).

364 The law relating to expert evidence and the reports prepared by experts was summarised by Dixon J in Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 3).[64] His Honour said that the matters to be considered in deciding whether the exception in section 79 of the Evidence Act 2008 (Vic) operated to render evidence admissible were:

(a) is the opinion relevant or of sufficient probative value (the relevance rule);

(b) has the witness properly based "specialised knowledge" (the expertise rule);

(c) is the opinion to be propounded "wholly or substantially based on specialised knowledge" (the expertise basis rule);

(d) is the opinion to be propounded "wholly or substantially based" on facts assumed or observed that have been, or will be, proved or more specifically (the factual basis rules):

(i) are the facts and assumptions on which the expert's opinion is founded disclosed (the assumption identification rule);

(ii) is there evidence admitted or to be admitted capable or proving matters sufficiently similar to the assumptions made by the expert to render the opinion of value (the proof of assumptions rule);

(iii) is there a statement of reasoning showing how the facts and assumptions relate to the opinion stated to reveal that the opinion is based on the expert's specialised knowledge (the statement of reasoning rule).

365 The factual basis rule in relation to expert evidence is a fundamental proposition in this area of the law. Thus, it is axiomatic that facts or assumptions upon which an expert relies in proffering an opinion must be proved by admissible evidence before the party on whose behalf the expert testifies closes his case. As the Court of Appeal in R v Ryan[65] stated, in the context of considering the proposition that an expert's opinion based upon certain assumptions which are not ultimately proved in evidence is irrelevant:[66]

"The situation requires no elaborate exposition of the legal principles nor is the extensive citation of authority required with respect to such a basic proposition."

To the extent that Wilkinson gave an opinion based on facts which were not proved by admissible evidence, his opinion is inadmissible.

(a) figures for costs and expenses which were not proved properly or at all; and

(b) income figures which assumed a price which Klatt, whose evidence I accept, did not say that he agreed to on behalf of Woolworths,

Tripodi has failed prima facie to prove its alleged loss and damage.

367 SHC relied upon a report prepared jointly by Richard Ivey and Peter Tremain.

368 Ivey is a chartered accountant and registered tax agent. He has a Bachelor of Agricultural Science, Postgraduate Diploma of Agricultural Economics and Bachelor of Commerce. He has worked as a chartered accountant and management consultant in Sydney and regional NSW and is currently a forensic account at Tremain Ivey Advisory (formerly with Crowe Horwath).

369 Peter Tremain is a senior consultant with Tremain Ivey Advisory. He has a Bachelor of Rural Science (Hons) from the University of New England and is a member of the Agriculture Institute of Australia and a member of the Australian Association of Agricultural Consultants.

370 Ivey gave evidence at the hearing. There was no objection taken to his qualifications, expertise or report.

371 The main areas of difference between the parties seemed to be the yield per hectare and the area of land to be used for bean production.

372 In relation to the yield, Ivey agreed that one determines the yield per hectare by dividing the area harvested by the kilograms of beans harvested. While he agreed that this gave the per hectare yield, he did not think it was a sound way to work out what the yield would have been if there had been no problem with the crop.[67]

373 Tripodi put to Ivey that he was cherry-picking the production and sales figures because, for example, he did not take properly into account the average yield of about 6,200kg per hectare on the last four plantings, but he accepted the accuracy of the figures for plantings 6 and 8. Ivey denied this. He said that while he accepted that once the farmer ironed out problems in the growing or production process, he should get a better yield, he nonetheless would not accept the yield of 6,200kg per hectare as the correct sum for future projections of ongoing profitability.

374 For a number of reasons Ivey was concerned about the figures which Wilkinson relied upon.

375 First, the figures showed that about 36,000kg of borlotti beans were dumped. Ivey said there was no satisfactory explanation for this. If the beans were of a reasonable quality, they should have been sold. He said that, economically, it made no sense to do otherwise; even if the price were low, it was sensible to sell rather than dump the beans for no return and simultaneously incur costs associated with the dumping.[68] Ivey had no evidence that this part of the crop was of a quality which would command the same price as the rest of the crop.

376 Secondly, the yields on plantings 9-12 inclusive were higher than the earlier plantings. Later plantings tend to have higher yields than earlier ones. To that extent, they were not typical for assessing an estimated yield on what plantings 1-4 would have produced but for the problems experienced with the beans.

377 Thirdly, Ivey said that the figures on plantings 9-12 were referrable to specific blocks in a small time period at a set time in the season and were not necessarily typical or indicative for the purposes of working out what an ongoing average yield would be.

378 Fourthly, Ivey had a general scepticism about the production figures. He was not convinced that, in the absence of problems, Tripodi would have sold 203,736kg from plantings 6, 8, 9-12 as relied upon by Wilkinson.[69] Ivey said there was no satisfactory evidence for this total. He regarded it as illogical and not consistent with other evidence such as the yield in the previous season.

379 Ivey adopted a figure of 3,502kg per hectare for the future ongoing production yield. Plainly, this was significantly less than the 6,200 kilogram per hectare in the figures relied upon by Tripodi. Ivey agreed in cross-examination that if he adopted a yield of 4,908kg per hectare (which Tripodi alleged was the actual expected yield) then there would have been a different profit figure - it would have increased by about $290,000.

380 Finally, the areas planted were not consistent. Some were 5 hectares and others were 8 hectares. No one satisfactorily explained the area covered by each planting.

381 The other point of controversy was the area harvested. Ivey's figures for the period after 2012/13 restricted the harvest to 42 hectares. This was done on the basis that earlier, Tripodi could not sell all it had produced and was therefore forced to dump 36,000kg of beans. The defendant's argument was to the effect that it was not sensible to increase the area under cultivation if the produce could not be sold. Ivey accepted that this rationale might not be so strong in future years because in 2012/13, Tripodi sold no beans to Woolworths. Ivey agreed that if Woolworths were keen to obtain the product and would take up to 5,000kg per week, then the area harvested might well be greater than 42 hectares.

382 In making his comments about the Wilkinson report Ivey was critical of Wilkinson's analysis of the growing costs per hectare. Wilkinson suggested the costs, based on the figures given to him, were $18,600 per hectare. This was equivalent to $3.79 per kilogram of beans in pods and assumed that shelled borlotti beans weighed 50% of the total mass of unshelled beans. Ivey considered that the growing costs should have been about $8,000 per hectare. This figure did not include the cost of leasing the land or the value of irrigation water used. This estimate was based upon the expert's experience and knowledge of the cost of growing similar crops and applied from the 2012-13 season until the 2018 financial year. The defendant's experts used this estimate because they could not accurately and reliably quantify the total growing costs because they were not provided with complete documentation of the costs and full details of the crop husbandry practices.[70]

383 With respect to price, the defendant's experts followed instructions and assumed that Woolworths would have paid $13.20 per kilogram for the shelled beans. This was the same figure as Wilkinson used. But as the defendant's report noted:[71]

"This parameter remains unverified in terms of the price and volumes of sales to Woolworths."

384 So the position common to both parties is that they assumed Woolworths would pay a price of $13.20 per kilogram for the shelled beans. In its written submissions the plaintiff made a couple of references to the sale price of the beans. In its initial final submissions dated 25 July 2016 the plaintiff said: [72]

"The assumptions used by Mr Wilkinson are actual cost figures verified by actual source documents and the intention of the plaintiff to harvest all the Burrell land for borlotti beans. Further it is assumed that sales would be made to Woolworths at $13.20 per kg for the beans which is supported by the evidence of the Woolworths' representatives, Messrs Klatt, Saad and Chase."

Then in the more recent loss and damage submissions dated 29 March 2017 the plaintiff said:[73]

"If the product were not damaged and were available, Woolworths would have purchased the whole of the harvest at the same price that it had paid for the peas, being 13.20 per kg." (sic)

385 It is necessary to consider the extent to which the evidence supports a sale price of $13.20 per kilogram. This is an important point especially when even the plaintiff's own expert agreed that selling the beans into the wholesale market would have been unprofitable. Thus, the sale price is an important factor in determining what, if any, profit Tripodi could have made had the borlotti bean venture with Woolworths proceeded. This in turn affects the question of damages.[74]

386 The first supporting reference in paragraph 258 of the plaintiff's submissions is a general one to the evidence of Klatt, Saad and Chase. The footnote refers to an earlier section of the submissions. Upon examination, that section provides no evidence about price.

387 As noted previously, Klatt gave no evidence to the effect that there was any agreement between Woolworths and the plaintiff for Woolworths to purchase quantities of borlotti beans at any particular price. Klatt specifically said that there was no agreement between the parties about the volumes or pricing of beans. Klatt gave evidence for the plaintiff and could have been asked about the likely price or price range which Woolworths would have paid for the borlotti beans. Tripodi did not ask him any such questions. This is significant. According to Cross on Evidence:[75]

"...the principles of Jones v Dunkel apply to the failure by a party to ask a witness called by that party questions in chief, at least where the most natural inference is that the party feared to do so. Indeed it has been said that the omissions to ask questions of a friendly witness is more significant that the failure to call a witness and that the presumption that the testimony would not have been favourable to the party's case is stronger than the presumption arising from the failure to call him. A fortiori, inferences are not to be drawn in favour of a party calling a witness who could have given direct evidence to that effect but did not."

388 As to Saad, he too was called by SHC. In his evidence-in-chief, he said that Woolworths never went ahead with the whole range of products which Tripodi offered and spoke about the meeting of July 2012. He said Woolworths did not agree to buy any product other than the shelled peas. While there was some discussion about beans, he said the peas were the focus and presented enough challenges so that Woolworths never really examined the beans closely.

389 In his cross-examination, Saad denied saying that Woolworths would definitely have bought the other items in the Tripodi range in addition to peas. While it was possible, the company was focused on peas at the time.

390 Chase gave little evidence relevant to this issue. It was not in the defendant's interest to pursue the matter with him in circumstances where a major submission was that there existed no agreement between Tripodi and Woolworths for the supply and sale of beans. Tripodi did not put to Saad that Woolworths agreed to pay $13.20 per kilogram for the beans. In cross-examination by Tripodi, Chase agreed that Woolworths was keen on the range of products offered by Tripodi and he thought Woolworths was prepared to buy other products in addition to the peas if they became available. Like Saad, he agreed that Klatt was the decision maker on this issue of what other Tripodi products, if any, Woolworths would purchase. Chase agreed further that Woolworths intention was to continue buying the peas and the rest of the Tripodi range if the right quality was available. From the whole of the evidence, I infer that any future purchase of product in the Tripodi range was conditional upon the product meeting Woolworths' specifications and quality control criteria. However, as with the other Woolworths witnesses, Tripodi did not put to Chase that Woolworths had agreed, or was committed to buying borlotti beans from Tripodi at a price of $13.20 per kilogram.

391 The next reference in the plaintiff's 2017 submissions referred to the document in the court book by which Klatt committed Woolworths to buying from Tripodi 5000 kg of freshly shelled peas per week at a cost of $3.30 per punnet. To the extent that this email said nothing about the price payable for beans, it is irrelevant.

392 The other evidence in the plaintiff's footnote referring to Klatt and Saad did not support the statement in paragraph 9 of the submissions as to price. To that extent, the reference was misleading and unhelpful.

393 In the circumstances, to the extent that Michael's evidence about an agreed price of $13.20 per kilogram is accurately summarised in paragraph 361, I do not accept his evidence about the conversation. His evidence on the point is self-serving, uncorroborated and, in particular, not supported by the other person to the conversation.

394 The assessment of loss in this case is a speculative exercise. In the present circumstances:

• there is no proper basis for the cost of the preparation and cultivation of the borlotti beans established by the plaintiff;

• there was no agreed price or volumes for the sale of the beans to Woolworths. I accept Woolworths' evidence on this point. That organisation has no reason to lie. Moreover, Woolworths is a large company with well-developed processes which would usually be followed. I can readily accept that arrangements between Woolworths and its suppliers would have to be documented in writing and that Woolworths would require compliance with its requirements before it contracted with suppliers. No such document was in existence.

• the details of the harvest are more asserted than proved. Reliance in submissions was placed on the handwritten notes and details appearing in a document within the court book[76] but no one actually gave evidence explaining such matters.

• the yield is problematic. If I assume the figures relied upon by Wilkinson are accurate, then plantings 9-12 inclusive produced about 6,200kg per hectare. Why there was such an increase from the earlier plantings and whether such an increase was sustainable for the future was not the subject of any detailed evidence. Ivey had reservations about the figures he was given. He said, I consider with some justification, that he was surprised Tripodi had not produced better information about the figures upon which it was relying. At the same time, Ivey's rationale for operating on an average yield of 3,500-3,600, as opposed to 6,200kg or even 4,908kg per hectare, was not compelling. His path of reasoning to that figure was not clear. Rather, it appeared somewhat random and simply plucked from the air.

395 Of the two figures the subject of expert evidence, the figure of 4,908kg per hectare used by Wilkinson might be conservative and underestimate the likely future yield, but the plaintiff who has the onus of proving its case did not adduce sufficient evidence to persuade me that the higher yield of 6,200kg per hectare was reasonable and repeatable.

396 Another issue which affects Wilkinson's calculation of future loss is the 25% discount rate employed. Normally, I would have expected the expert to explain the valuation methodology adopted and the reasons for using it. Wilkinson did not do so. Hence, I do not know:

• why he employed the discounted cash flow model he did as opposed to another model;

• how and why the figure of 25% was arrived at.

The discount figure, as appears from Wilkinson's report, can have a significant impact upon the damages assessed. Thus, it is a matter of regret that Tripodi's expert did not undertake his task in a more thorough manner.

397 In light of my findings above, in my opinion, the plaintiff has not discharged its onus to prove the loss it has suffered. As such, and subject to a limited qualification, I am unable to calculate and determine what damages should be awarded to the plaintiff.

398 This is not an instance where the plaintiff has been prevented by the subject matter, or nature of its claim, from being able to provide evidence to prove its loss. If that were the case, the court could not refuse to calculate damages. Rather, this is an instance where the plaintiff has simply failed to provide the court with sufficient evidence to prove its loss, leaving the court to merely speculate or guess as to the amount of damages that should be awarded.[77]

399 This case bears similarities to the Victorian Court of Appeal's decision in Longden v Kenalda Nominees Pty Ltd.[78]

400 In that case, the plaintiff had entered into a contract with the defendant for the lease of premises for the purposes of setting up and running a retail furniture business. The defendant broke the contract, and the premises were never made available to the plaintiff. The Court of Appeal had to determine whether the plaintiff had established that it suffered loss, in circumstances where its loss required a determination of the value of conducting a business which never commenced.

401 At the trial, the plaintiff had sought to prove its loss by leading evidence of the profitability of another store, located in Nunawading which was part of the Carol's Country Collections chain of stores ("the Nunawading store"). The trial judge had rejected that evidence for various reasons. Because of this, there was nothing before the court to substantiate or determine the amount of the loss caused by the defendant's breach.

402 The court agreed with the trial judge's assessment that there was insufficient evidence before the court to determine the value of the lost opportunity. Thus, although there was a breach, damages could not be awarded. Although on the balance of probabilities the opportunity had some value, Chernov JA explained:[79]

"...it is for the plaintiff to prove both the fact of loss arising from the defendant's breach and the amount of the loss. Moreover, the plaintiff is required to establish both matters with as much certainty and particularity as is reasonable in the circumstances. Consequently, where a plaintiff could have produced evidence of loss but has simply failed to do so, it ordinarily means that it has failed to prove its case on damages (so that, where the claim is based on breach of contract, the plaintiff would only recover nominal damages). There are, of course, situations where a plaintiff cannot adduce precise evidence of the amount of loss, in which case the court will do its best in that regard and will estimate the damages and, where appropriate, will engage in a certain amount of guesswork" (references omitted)

403 Buchanan JA also noted that:[80]

"It was also necessary for the appellant to establish a means of estimating the amount of the profit. The appellant was required to prove the loss of profit with as much precision as the subject matter reasonably allowed. It was necessary for her to lay a foundation for an estimate of the lost profit which was not mere guesswork, for this was not a case where precise evidence of what had been lost could not be adduced."

404 Even if I had been able to arrive at a prima facie figure for damages for loss of opportunity, that would not be the end of the matter. Under the approach adopted in Sellars' case, I need to take account of the possibilities and probabilities in arriving at a final figure for damages. There was no certainty regarding the outcome contended for by Tripodi. Indeed, there were a number of significant contingencies which I would have expected to affect the outcome.

405 French J, as he then was when acting as trial judge at first instance in Sellars' case, examined the contingencies in that case to assess their possible impact on the damages. His Honour concluded that the probability of any agreement being reached with Pagini was high and there was an even chance that the underwriting necessary for the agreement to proceed would have been secured. The other contingencies there concerned the conditions precedent in the draft agreement. His Honour discounted the damages award to 40% of the amount he arrived at in order to reflect the risk that no agreement would have proceeded. He further discounted parts of the damages claimed to reflect additional risks faced. As a result, there were extra reductions so that part of the damages award was reduced by 70% and part by 80%.

406 The general contingencies to be taken into account in the present case are varied.

407 The first contingency is that farming is an inherently unpredictable activity. Notwithstanding the farmer takes great care and attention with his crop, there is no guarantee of success. Events such as heat, fire, frost, rain, pests and disease can destroy crops or adversely affect them. As Tripodi itself said, its product was unique and reliability is always an issue with produce. An added complication in the present case is that, as shown by the experience with the borlotti beans, where the crop is compromised to the extent that the minimum supply period cannot be satisfied, Woolworths will not buy any of the produce, even where there are later plantings of good quality.

408 Secondly, part of the unpredictability of farming is the scope for human error. This could involve planting seed in a defective manner, watering the crop insufficiently or excessively, using the wrong fertiliser or chemicals or failing to use some necessary chemicals or using the correct chemicals in the wrong way. Evidence adduced in this case showed how such things occur and the significant consequences which can result. Tripodi divided its pea crop between Queensland and Bairnsdale. A worker at Bairnsdale applied double the recommended amount of chemical to the crop and destroyed the whole pea crop. This was a reason for the lack of continuity in the supply of peas to Woolworths.

409 The third contingency is whether Tripodi would have reached an agreement with Woolworths about the terms and conditions upon which it would supply borlotti beans. Given Woolworths' enthusiasm and interest in legumes as a product range which it wanted to have available for its customers, I consider it likely that Tripodi and Woolworths would have reached agreement on a supply contract. This conclusion flows reasonably from the evidence of Klatt, Saad and Chase and reflects also the keenness of Tripodi to supply that range. But an agreement was not guaranteed.[81]

410 Fourthly, the contingencies discussed earlier exemplify the problems which can occur to prevent a party from being as successful as it might have hoped in entering into a commercial agreement with another party. In the context, it is significant that notwithstanding the thought and planning which underpinned Tripodi's decision to grow legumes and sell them to a company like Woolworths, in mid to late 2014, about 18 months after the beans were planted, Tripodi still had issues with the packaging of its peas - and these issues affected the colour, appearance and shelf life of the peas. That such a period of time passed without a solution to the problems suggests that the packaging of fresh shelled legumes in a way that preserves them in good condition for a commercially acceptable shelf life is a challenge. The consequences can be substantial if the buyer, Woolworths, is forced to throw out produce due to the level of deterioration.

411 Finally, apart from the technical issues about the packaging issues and their constituent elements, there remained mechanical or processing issues about the reliability of the packaging plant in dealing with the beans. During 2012 the plant was changed over from processing beans to peas. In order to reverse this, some items of machinery must be removed and replaced with different or additional items. In other words, the plant has to be reconfigured. Given the various longstanding problems which Tripodi had with the supply and packaging of peas, I would have expected Tripodi to experience similar problems with the beans.

412 In all the circumstances, including the various contingencies and issues discussed above, I would discount any damages figure by 85%. My expectation is that Tripodi was unlikely to have been able to reliably grow, package and deliver the borlotti bean product in the quantities and to the specification required by Woolworths.

413 Because the problem with Tripodi's basic figures concerning the likely cost of production and the likely income received is fundamental to both the claim for the 2012-13 year and the further claim for the later years ending in 2018, I have not dealt in any detail with the further claim. Suffice to say, if the plaintiff's figures alleged for the 2012/13 season are not proved, then the position is the same for the period of the further claim. Indeed, I remain sceptical of the plaintiff's figures.

414 In any case, even if Tripodi had suffered a loss of the kind it claimed for the 2012/13 year, I am by no means satisfied that this would necessarily lead to an award of damages for the later years ending in 2018. There is an issue not only with the quantum of any loss but the causative link between any loss in the 2012/13 season and the later losses claimed up to and including the 2017/18 season. Not only did Tripodi fail to establish to my satisfaction that there was a causal link between any breach of contract or duty by SHC and the losses claimed for 2013/14 and thereafter, the evidence disclosed another more likely basis for the plaintiff's economic difficulties after 2012/13. The evidence showed that the income from Tripodi's primary business, its stone fruit, declined from $2,008,579 in 2011/12 to $781,624 in 2012/13 and $566,335 in 2013/14. Such a decline in income is likely to have had a major impact on the profitability of the plaintiff company and its ability to fund other farming operations.

415 The qualification I referred to in paragraph 397 above concerns a concession by the defendant's experts that, if contrary to the defendant's primary submissions, it has some liability to Tripodi, then such liability is limited to the sum of $44,495 for the 2012/13 season. SHC acknowledges that Tripodi replanted two of the original bean crop plantings.[82] This was because the initial planting failed and so it became possible to replant soon after that failure. SHC in essence accepted that, in the absence of the incident of the failed crops, only one original planting would have grown and there would have been no time to replant. SHC says that planting two areas at the Beverford property a second time resulted in higher expenses than if the original plantings had been successful in the absence of the alleged negligence.

416 The defendant's expert report estimates the costs of replanting at $4,000 per hectare.[83] This compares to a figure of $8,000 per hectare for the total growing costs associated with the initial plantings.[84] The figure of $8,000 does not include the costs of leasing the Beverford property or the irrigation water used.

417 While I am satisfied that SHC breached its retainer and its duty to Tripodi, Tripodi has not proved any significant loss and would be limited to nominal damages on its contract claim. Here, it was not disputed that Tripodi did replant two of the areas at the Beverford property. Tripodi's evidence about growing costs was defective and it led no direct evidence of the replanting costs.

418 However, the defendant did. The rules of court provide for the possibility of one party tendering and relying upon an expert report prepared by the other party. SHC estimated the replanting cost at $44,495 but that figure represented its best guess subject to reservations about growing costs, crop husbandry practices and the areas replanted.[85]

419 Doing the best I can on limited and qualified material, I award Tripodi damages of $40,000.

420 While it is not strictly necessary to deal with the point, in view of Tripodi's failure to properly prove its loss, I note that in general terms I preferred the evidence of the defendant's experts to that of the plaintiff. While I do not doubt the honesty of Mr Wilkinson, I consider that he did no more than perform an arithmetic exercise based on instructions and assumptions not all of which were made good by the evidence.

421 In summary, my conclusions in this case are as follows:

(a) Tripodi retained SHC in 2012 to advise it about pre-emergent herbicides for the proposed borlotti bean crop. The retainer included the provision of advice about how to best care for the crop and the provision of monitoring services to maintain and safeguard the health of the crop.

(b) SHC had contractual obligations to Tripodi and owed it a duty of care to provide advice and monitoring services which a reasonably competent agronomist would provide in the circumstances.

(c) SHC breached the retainer and its duty to Tripodi by:

(i) failing to provide appropriate advice about a pre-emergent herbicide to use on the beans;

(ii) failing to monitor properly the health of the beans; and

(iii) failing to recommend appropriate measures to safeguard and protect the health of the beans.

(d) There was no contract between Tripodi and Woolworths by which Woolworths agreed to purchase any quantity of borlotti beans from Tripodi, whether at any specific price or at all.

(e) Tripodi did not prove its loss arising from the breach of contract and breach of duty. The evidence did not make good all the assumptions made by Tripodi's experts.

(f) Tripodi's claim was for loss of opportunity. Even if the plaintiff's evidence had been satisfactory, after making due allowance for the possibilities and probabilities which might flow in accordance with Sellars' case, any damages awarded under this head would have been discounted by 85%. If it had been argued, I would have further reduced the plaintiff's damages for Tripodi's contributory negligence in planting the bean crop after being warned, albeit shortly before planting, that it was sensible to conduct a test planting using Mentor.

(g) SHC acknowledged that, contrary to its principal submissions, if it were liable at all to Tripodi, it was for the moneys wasted by Tripodi in duplicating work by replanting two of the failed borlotti bean plantings. Given the reservations attaching to the defendant's calculation of $44,495 I award Tripodi $40,000 damages.

422 I will hear from the parties on the question of costs and the form of final orders.

[3] The Australian Consumer Law is set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).

[4] To that extent, he does not contradict what Michael says.

[5] Paragraph 206 of the plaintiff's closing submissions dated 25 July 2016.

[7] [1963] UKHL 4; [1964] AC 465.

[8] Hedley Byrne & Co Ltd v Heller & Partners Ltd [1963] UKHL 4; [1964] AC 465, 486-7, 493-4, 495-7, 502-3, 508-9, 514, 522-3, 528-9, 538-40.

[11] Cumming instructed people including Gadsden to test the leased land's soil to determine which fertilisers should be used.

[13] T348. In his typed diary, it said that the chemicals were applied on 16 November 2012. However, the parties agreed that the spraying took place on 17 November 2012. Chaffey confirmed that where notes in his written diary different from those in his typed diary (which was created months after entries were put into the written diary), the notes in his written diary should be preferred.

[14] He was present in court for the duration of the first part of the trial.

[34] In circumstances where neither the Mentor label nor the Terbyne label made any explicit reference to borlotti beans, it is difficult to see how Taylor expected Tripodi to apply the herbicides correctly in accordance with the product labels.

[35] See the discussion in Commonwealth of Australia v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64, 84-86, 99-100.

[38] (1994) 179 CLR 332.

[39] [1990] HCA 20; (1990) 169 CLR 638.

[40] [1990] HCA 20; (1990) 169 CLR 638

[41] Sellars v Adelaide Petroleum NL (1994) 179 CLR 332, 350.

[45] Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1.

[46] (1994) 179 CLR 332, 366.

[47] [1970] AC 166, 176.

[48] [1996] VicRp 22; [1996] 1 VR 346.

[49] [1996] VicRp 22; [1996] 1 VR 346, 354.

[50] [2017] VSCA 88 at [411].

[51] [2010] HCA 12; (2010) 240 CLR 537.

[52] [2010] HCA 12; (2010) 240 CLR 537 at [124].

[58] Different figures were given in the plaintiff's opening address, closing address and the evidence of Michael and Jina Tripodi.

[59] (1994) 179 CLR 332, 355.

[60] Contrary to the requirements of r.44.03(4) of the County Court Civil Procedure Rules 2008 (Vic).

[64] [2012] VSC 99 at [66]- [98], drawn from the decision of Heydon J in Dasreef v Hawchar [2011] HCA 21; (2011) 243 CLR 588. Dixon J recently reaffirmed this analysis in Wilson v Bauer Media (Ruling No 7) [2017] VSC 357 at [12].

[65] [2002] VSCA 176.

[66] [2002] VSCA 176 at [9].

[72] Paragraph 258 of the plaintiff's closing submissions dated 25 July 2016.

[73] Paragraph 9 of the plaintiff's further closing submissions dated 29 March 2017.

[74] Whether or not a contract is profitable is important because the corollary of the principle that a plaintiff is to be put in the position which would have resulted from performance of the contract (assuming there was a contract in existence) is that the plaintiff is not to be put in a better position. Thus, if the plaintiff would have suffered a loss if the contract had been performed, then the plaintiff can recover no damages for the breach. See N Seddon, R Bigwood and M Ellinghaus, Cheshire and Fifoot Law of Contract (Lexis Nexis Butterworths, 10th ed, 2012) at [23.6] and [23.12].

[75] (2017 LexisNexis Butterworths, 11th Ed), 44.

[77] Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10; (2003) 196 ALR 257 at [38].

[78] [2003] VSCA 128.

[81] Hence the 40% discount for this contingency in Sellars' case.