New South Wales Supreme Court Cantarella Bros Pty Ltd v Andreasen [2005] NSWSC 1157 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 8 - 10 June and 20 & 21 July 2005 JUDGMENT DATE : 15 November 2005 JURISDICTION : Equity JUDGMENT OF : Hamilton J DECISION : Judgment for plaintiff for damages for breach of contract. CATCHWORDS : CONTRACTS [105] – General contractual principles – Construction and interpretation of contracts – Implied terms – Generally – Principles to be applied – Necessity to give business efficacy to contract. LEGISLATION CITED : Trade Practices Act 1974 (Cth) s 47 Associated Alloys Pty Limited v ACN 001 452 106 Pty Limited (In liquidation) (2000) 202 CLR 588 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41 CASES CITED : Peppers Hotel Management Pty Limited v Hotel Capital Partners Limited [2004] NSWCA 114 Upper Hunter District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429 J W Carter & D J Harland, Contract Law in Australia (4th ed, 2002) [606] Cantarella Bros Pty Limited (P) PARTIES : Maia Andreasen (D1) Juan Renshaw (D2) FILE NUMBER(S) : SC 2277/04 J W J Stevenson SC and E C Muston (P) COUNSEL : D J Fagan SC (Ds) Deacons (P) SOLICITORS : TressCox (Ds) LOWER COURT JURISDICTION : IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION HAMILTON J TUESDAY, 15 NOVEMBER 2005 2277/04 CANTARELLA BROS PTY LIMITED v MAIA ANDREASEN & ANOR JUDGMENT 1 HIS HONOUR: The plaintiff is the supplier of the well known Vittoria brand of coffee. The defendants Maia Andreasen and Juan Renshaw operated a coffee shop at the Fox Studios at Moore Park. The plaintiff claims that on 14 May 2001 the plaintiff and the defendants entered into a written contract under which the plaintiff provided the defendants with a coffee machine and grinder. It thereafter supplied them with coffee for over 10 months. The defendants terminated the contract on 4 April 2002. 2 The issues that arise for determination are: 1 Whether there was a contract for the term of three years or whether the arrangement was terminable at will. 2 Whether, if there was a contract, it was a term of the contract that the defendants would, while it continued, buy all their coffee supplies from the plaintiff. 3 Whether, if there was a contract, there was a fundamental term that the plaintiff would supply the defendants with four large outdoor umbrellas, so that the defendants were entitled on breach of that term to terminate the contract. 4 Whether the defendants are liable to the plaintiff in damages. 5 If so, what is the quantum of such damages. 3 These proceedings were originally commenced in the District Court. The plaintiff at one stage sought rectification of the written contract and consequently had the proceedings removed into this Division of this Court. As the matter turns out, it is not necessary to determine the claim for rectification. 4 A contract document was dated 14 May 2001 and signed by each of the defendants and by Alfredo Pasquariello and Sam Papaluca on behalf of the plaintiff. These four persons all gave oral evidence before me. It is common ground that there were three important blanks in the contract document when it was signed. The first related to the term of the contract, which was subsequently filled in with the dates "18-05-2001" and "18-05-2004" to indicate a three year term. In a box under the heading "coffee", the "estimated amount per period" was left blank and subsequently filled in as "25 kgs". Under the heading "licensed loan equipment" there were undoubtedly filled in when the document was signed "3 group machine" and "1 x grinder", but there were blanks for the serial numbers, which were subsequently filled in. 5 The document was signed on 14 May 2001 at an interview which took place among Mr Pasquariello, Mr Papaluca, Ms Andreasen and Mr Renshaw. There had been two earlier interviews in which Mr Papaluca and the defendants undoubtedly participated. Mr Pasquariello participated in one, but perhaps not both, of these earlier interviews. There was considerable dispute as to what was said at each of the three interviews, of which that of 14 May was the most important. 6 There is no dispute that on or about 18 May 2001 the coffee machine and the grinder were delivered to the defendants and that thereafter they purchased all their coffee requirements from the plaintiff up to 4 April 2002. The evidence shows that those coffee purchases averaged 28.5 kg per week, which is obviously more than 25 kg per week. On 4 April 2002 the contract was terminated by the defendants in somewhat bizarre circumstances. Mr Renshaw telephoned Mr Pasquariello at the plaintiff's office and said that a family member had gone to work for a rival coffee supplier and that for family reasons the defendants were terminating the contract in favour of purchasing their coffee from that supplier. That story was completely untrue. It was a blatant lie and known to be so by both Mr Renshaw and Ms Andreasen at the time it was told. 7 The credit of the witnesses is of considerable importance in determining the disputed questions of fact. I did not form the impression that any of the four witnesses was attempting deliberately to mislead the Court. It must be remembered in assessing their evidence that they were recalling events that took place up to four years ago. The recollections of all of them as to the relevant conversations were patchy and imperfect. I formed the view that the least reliable of the witnesses was Ms Andreasen. She struck me as a person who had formed very fixed views about particular matters and was unwilling to consider any version but her own as the truth of those matters. Some of her versions seemed to me quite improbable. One instance was that she was quite insistent that not only she and Mr Renshaw but also their solicitor considered as a joke and actually laughed at the second threatening letter from the plaintiff's solicitors when it was considered at a conference among the three of them; Mr Renshaw did not suggest that he and the solicitor found the matter amusing and it certainly seems most unlikely that the solicitor did. I regard her testimony as having less weight than that of the other witnesses. It should also be noted that three of the four witnesses continue to be interested in the result of the proceedings, but that Mr Papaluca has left the plaintiff's employ and may now be regarded as an independent witness. ISSUE 1: WHETHER THERE WAS A CONTRACT FOR THE TERM OF THREE YEARS OR WHETHER THE ARRANGEMENT WAS TERMINABLE AT WILL 8 The defendants contend both that no firm contract was entered into and that, if one was, it was not for a term of three years, but was terminable by the defendants at will. 9 Both Mr Pasquariello and Mr Papaluca gave evidence that it was mentioned at the earlier meetings before 14 May 2001 that the contract would be for three years. Mr Papaluca deposed that on 14 May 2001 before the execution of the contract Mr Pasquariello stated that the three group machine was being supplied for three years and that he (Papaluca) said: "The contract will go for 3 years from when we despatch the equipment so I'll arrange for that and the serial numbers to be filled in later." 10 Mr Pasquariello also deposed that he said at that meeting that it would be a three year agreement for a three group machine and grinder. Ms Andreasen claims that she was always reluctant for the defendants to be locked in with one supplier for a fixed time. She deposed that at the meeting on 14 May 2001 the following was said: "44 I said words to the effect of: '… There's no way I would want to lock myself in with one supplier for three years.' 45 Sam or Alfredo said words to the effect of: 'You will be perfectly free to go to another coffee company if you're not satisfied. If we can't satisfy you, that means we've let down our side of the agreement. Believe me, the agreement doesn't mean anything then.' 46 I said words to the effect of: 'Okay, in that case we're happy to sign, but we won't agree to any coffee quota.' " 11 In cross examination Mr Renshaw conceded that Mr Papaluca told him that the plaintiff's invariable practice was to sign up its customers for three year terms and that on 14 May 2001 Mr Pasquariello probably did say to him, "it will be a three year agreement". He did subsequently try to say that he did not have a clear recollection of this and that he thought that the talk of a three year agreement referred to the plaintiff's standard agreement, not to this agreement. Even with these qualifications, I regard his concession as a substantial corroboration of the evidence given on behalf of the plaintiff that a three year term was stipulated. The evidence did show that a three year term in supply agreements was the plaintiff's invariable practice. 12 On this material alone, in light of the clear evidence led for the plaintiff and the defendants' equivocal evidence, I should find on the balance of probabilities that a firm agreement was reached. As to its term I should find that a three year term for the agreement was orally stipulated on behalf of the plaintiff; was assented to either expressly or by silence on the part of the defendants; and that the defendants gave the plaintiff authority to fill in a three year term in the relevant blank in the agreement once the particular machines to be supplied had been identified and delivered and the date of commencement of the agreement was established. 13 That this version of the conversation of 14 May 2001 is correct in my view receives confirmation from events which occurred subsequently. Within days of the defendants' termination of the agreement on 4 April 2002 the plaintiff's solicitors wrote to the defendants stating that "the agreement commenced on 18 May 2001 and was for a term of 3 years". There was not in the correspondence that ensued any denial that the agreement was for three years, albeit in the defendants' solicitor's letter of 6 May 2002 the defendants' liability was denied on various other grounds. When the proceedings were commenced in the District Court the plaintiff in its ordinary statement of claim filed on 15 May 2002 alleged in paragraph 5: "The term of the agreement was for 3 years from 18 May 2001." In their notice of grounds of defence filed on 17 June 2002 the defendants admitted the contents of paragraph 5 of the statement of claim and by their affidavit verifying of 13 June 2005 swore to the truth of their defence. 14 The defendants gave various explanations as to how their solicitor came to omit a denial of the three year term and how they came solemnly to swear that the term was for three years. I find those explanations unconvincing. As I have said, this course on their part only some twelve months after the date of the contract is indicative to me that the plaintiff's version of the conversation about the term ought be accepted and that the conclusions in [12] above are correct. It is to be noted that the original defence admitted that there was a binding contract just as it admitted that it was for a term of three years. 15 I therefore find that there was a binding contract between the plaintiff and the defendants; the term of the contract was for three years and that the plaintiff was authorised to fill a three year term into the relevant blank in the written contract, as was done. This is quite inconsistent with there being any term of the contract that the defendants could terminate it at will. ISSUE 2: WHETHER, IF THERE WAS A CONTRACT, IT WAS A TERM OF THE CONTRACT THAT THE DEFENDANTS WOULD, WHILE IT CONTINUED, BUY ALL THEIR COFFEE SUPPLIES FROM THE PLAINTIFF 16 The plaintiff originally propounded an express term of the contract that the defendants would purchase at least 25 kilograms per week of coffee from the plaintiff. The defendants always resisted this allegation, saying that they had been unwilling to bind themselves to a particular amount in view of the fluctuating nature of their trade. They said that they provided a list of their consumption over the preceding year (which averaged 29.4 kg per week) as an earnest of good faith and that on that basis the plaintiff forewent a firm promise as to the amount of coffee to be purchased. On the evidence there seems to be a good deal in favour of the contention that no minimum coffee purchase was stipulated, but I do not need to decide the question, because the plaintiff abandoned the claim based on an express promise to buy a specified minimum quantity. In the circumstances the contract should not be taken to include any term to that effect. 17 The case in which the plaintiff has persisted is that there was an implied term of the agreement that the defendants would, during its subsistence, take all their coffee supplies from the plaintiff. Certainly the defendants conceded that this was the invariable practice in the trade. In their considerable experience they knew of no instance in which a coffee shop had taken coffee supplies from two different suppliers at the same time. Aside from any other consideration, this was dictated by the practicality (or impracticality) of cleaning machines between the use of different coffees. 18 The plaintiff puts the implication of the term on two bases: the first, an implication from considerations of business efficacy; and the second, on the basis of a term implied from the custom of the trade. 19 The plaintiff reminds the Court that the High Court in Associated Alloys Pty Limited v ACN 001 452 106 Pty Limited (In liquidation) (2000) 202 CLR 588 at [44] reaffirmed the principles upon which terms will be implied from considerations of business efficacy as follows: "[44] The rules governing the implication of an implied term as a matter of fact were stated by the Privy Council in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283 and have subsequently been approved and applied in numerous decisions of this Court. These include Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 at 605 – 606; Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 351 – 352, 404; Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 65 – 66, 95, 117 – 118, 121; Moorgate Tobacco Co Ltd v Philip Morris Ltd [No 2] (1984) 156 CLR 414 at 435; Adelaide Corporation v Jennings Industries Ltd (1985) 156 CLR 274 at 281 – 282; Hawkins v Clayton (1988) 164 CLR 539 at 571 – 573; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 422, 441. In Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337at 347, Mason J restated the five conditions laid down by the Privy Council: "(1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; (3) it must be so obvious that 'it goes without saying'; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract." 20 The plaintiff further reminds the Court that in Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 353 – 354 Mason J also stated that in making the inquiry as to whether a term is to be implied the court may take into account material which it could take into account on the construction of a contract and that this includes "a matter which was in the common contemplation of the parties yet was not a contractual provision actually agreed upon for the simple reason it was a matter of common assumption." The plaintiff submits that conditions (1) and (3) to (5) stated by Mason J are clearly met in this case and that the only question about which there is any room for argument is whether the implication was necessary to give business efficacy to the contract. In this regard, the plaintiff draws attention to the fact that the contract might not be a contract at all without the implication of this term. That is on the basis that there is no consideration other than the promise to purchase their supplies from the plaintiff moving from the defendants at all. Furthermore, the contract would have no business efficacy from the point of view of the plaintiff unless there were a promise by the defendants to purchase at least some coffee supplies from the plaintiff in return for the plaintiff's supply of an expensive coffee making machine and grinder, together with various other items and ancillary services to the defendants. In the words of the plaintiff's written submissions, it is hardly likely that the plaintiff would supply "such equipment for three years in the mere hope that during that period, the Defendants would purchase coffee from the plaintiff." It should be remembered that commercial contracts are to be construed so as to be given a sensible commercial operation: Upper Hunter District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429 at 437; Peppers Hotel Management Pty Limited v Hotel Capital Partners Limited [2004] NSWCA 114 at [68]. 21 It was also suggested that the term alleged would not be implied because the implication of that term would involve a contravention of s 47 of the Trade Practices Act 1974 (Cth). Section 47 (so far as relevant) provides as follows: "47 Exclusive dealing (1) Subject to this section, a corporation shall not, in trade or commerce, engage in the practice of exclusive dealing. (2) A corporation engages in the practice of exclusive dealing if the corporation: (a) supplies, or offers to supply, goods or services; (b) supplies, or offers to supply, goods or services at a particular price; or (c) gives or allows, or offers to give or allow, a discount, allowance, rebate or credit in relation to the supply or proposed supply of goods or services by the corporation; on the condition that the person to whom the corporation supplies, or offers or proposes to supply, the goods or services or, if that person is a body corporate, a body corporate related to that body corporate: (d) will not, or will not except to a limited extent, acquire goods or services, or goods or services of a particular kind or description, directly or indirectly from a competitor of the corporation or from a competitor of a body corporate related to the corporation; (e) will not, or will not except to a limited extent, re-supply goods or services, or goods or services of a particular kind or description, acquired directly or indirectly from a competitor of the corporation or from a competitor of a body corporate related to the corporation; or (f) in the case where the corporation supplies or would supply goods or services, will not re-supply the goods or services to any person, or will not, or will not except to a limited extent, re-supply the goods or services: (i) to particular persons or classes of persons or to persons other than particular persons or classes of persons; or (ii) in particular places or classes of places or in places other than particular places or classes of places. ……………………………….. (10) Subsection (1) does not apply to the practice of exclusive dealing constituted by a corporation engaging in conduct of a kind referred to in subsection (2) …… unless: (a) the engaging by the corporation in that conduct has the purpose, or has or is likely to have the effect, of substantially lessening competition; or (b) the engaging by the corporation in that conduct, and the engaging by the corporation, or by a body corporate related to the corporation, in other conduct of the same or a similar kind, together have or are likely to have the effect of substantially lessening competition." 22 It is quite plain that for any possibly relevant breach of s 47 to be established it must appear not only that there was conduct breaching subsection (2), but that the engaging in that conduct has the purpose or has or is likely to have the effect of substantially lessening competition either alone or in conjunction with other conduct of the same or a similar kind. There is no evidence before the Court upon which any conclusion could be reached that the conduct in question had the purpose or had or might have the effect of substantially lessening competition. On this ground alone, no breach of s 47 could be taken to be established from the implication into the contract of the term contended for by the plaintiff. 23 In all the circumstances, I find that there was implied from considerations of business efficacy a term of the contract that the defendants would, during its subsistence, buy all their coffee requirements from the plaintiff. If it were necessary for me to decide, it is likely that I should also find the implication of such a term from a custom of the trade, but I do not need to determine that question. ISSUE 3: WHETHER, IF THERE WAS A CONTRACT, THERE WAS A FUNDAMENTAL TERM THAT THE PLAINTIFF WOULD SUPPLY THE DEFENDANTS WITH FOUR LARGE OUTDOOR UMBRELLAS, SO THAT THE DEFENDANTS WERE ENTITLED ON BREACH OF THAT TERM TO TERMINATE THE CONTRACT 24 On the evidence, I have no doubt that the defendants had it in mind when seeking a new coffee supplier that they were interested in having that supplier furnish them with outdoor umbrellas. I also have no doubt that there were discussions between the defendants and the plaintiff's representatives before 14 May 2001, the day on which the written contract was signed, and after that day, as to the possible supply of umbrellas by the plaintiff. There is no doubt that there was no mention of umbrellas in the written agreement; in particular, there is no doubt that there were no umbrellas included in the schedule of equipment to be supplied when the agreement was signed or thereafter. The evidence that is of most importance as to whether or not there was a term in the agreement concerning umbrellas is the evidence of what was said in the meeting of 14 May 2001, at which the agreement was signed. 25 Mr Pasquariello and Mr Papaluca both denied that anything was said at that meeting concerning umbrellas. The defendants both said that there was mention of umbrellas at the meeting. 26 In affidavits, Mr Renshaw said: "27 I recall that Sam listed the coffee machine and the grinder in the section titled 'Licensed Loan Equipment' of the agreement but he didn't write down the umbrellas. Sam said words to the effect of: 'I can't put the umbrellas down until we get back to the office. I need to find out about serial numbers and everything first. I'll do it as soon as I get back to the office.'" 27 And Ms Andreasen said: "30 …… Alfredo said: 'Well if you sign today, we'll put the order straight in but even then it will be a couple of weeks before you get them. The Legal Department will need to see your signatures before they'll sign off on the umbrella order.' …… 35 When we turned to page 2 of the Schedule, I noticed that the Permanent Umbrellas (the provision of which was the rationale for the agreement) were not listed as 'Licensed Loan Equipment'. Sam said words to the effect of: 'We'll have to wait until we get back to the office to put the umbrellas down because I'm not sure about the exact details or the serial numbers or anything. We have to get all the details off the girls at the office. Our legal people will have to sight your signatures before they'll sign off on the umbrella order, then we can fill in all those details. We'll fix that all up as soon as we get back to the office.' " 28 In an affidavit in reply Mr Papaluca said: "11 I deny that I said the words attributed to me in paragraph 35 of Maia's affidavit. I said words to the following effect: "We will have to wait to until we got back to the office to put down the serial numbers of the coffee equipment". I made no reference to umbrellas. I did not have the authority to commit Cantarella Bros. Approval from the marketing department is first required for extra expenditure of that kind. Had I understood that umbrella's [sic] were of paramount importance to Juan and Maia I would have asked the marketing department to assess the request immediately, and would have become a lot more 'serious' about taking steps towards providing those umbrella's [sic]." 29 In cross examination Mr Renshaw said: "Q ….It didn't strike you as being odd in those circumstances that there was any difficulty writing in an umbrella or umbrellas? A That didn't occur to me, actually. I think more the point they were saying was they've got, you know, they've got to go back and talk to people before it can be written in and approved. ……… Q I will try and nail you down on this if I can. But that they had to get some other approval from someone at Cantarella Bros before it could be done; is that what you remember? A Possibly, yes. Q Because if they had agreed that umbrellas would be provided there would be no difficulty at all to simply write 'four umbrellas' in the same box where the coffee machine and grinder were written, would there? A Probably not. But -" 30 As I have already said, there was more discussion on some later occasions between the defendants and a representative of the plaintiff as to the possible supply and location of umbrellas. The issue of umbrellas was raised at times by the defendants with the plaintiff, up to, but not beyond, the end of July 2001. After that, there was, on the defendants' own evidence, silence from the defendants on the subject of umbrellas up to and including 4 April 2002, when they terminated the contract. Again, as I have already said, in terminating the contract Mr Renshaw (with the previous knowledge of Ms Andreasen) told a patently untrue story that the reason for termination was because a family member had gone to work for a rival coffee supplier. No complaint was made at that time of breach of a promise to supply umbrellas. If this was truly present to the minds of the defendants as a ground of complaint or for the termination of the contract, it is hard to accept that there would have been any embarrassment in saying so or any reason not to do so. 31 My findings on all the evidence, including the above material, are as follows. I am inclined to believe that mention was made of the subject of umbrellas on 14 May 2001, as the defendants claim and the plaintiff's witnesses deny. However, I do not accept that what was said was as deposed to in the defendants' affidavits. It is probable that what was said was more in the terms which Mr Renshaw conceded in his cross examination set out above. It seems to me most unlikely that it was said on behalf of the plaintiff and accepted by the defendants that the reason that the umbrellas were not included in the schedule to the written agreement was because their serial numbers were unknown, when exactly that course had been followed with the coffee machine and grinder (always assuming that umbrellas have serial numbers, as to which there is no evidence). I accept Mr Papaluca's statement that he did not have authority to commit the plaintiff to the provision of umbrellas without approval that was not then available. If he said the matter had to be referred to someone, I do not accept it was the legal department. Whatever was in the minds of any of the parties, I do not accept that anything was said on 14 May 2001 that would reasonably lead an objective bystander to the conclusion that a term as to the provision of umbrellas was included in the contractual arrangements between the plaintiff and the defendants: see Hospital Products Limited v United States Surgical Corporation (1984) 156 CLR 41 per Gibbs CJ at 61 – 62; and see generally J W Carter & D J Harland, Contract Law in Australia (4th ed, 2002) [606]. I find that there was no term incorporated in the contract concerning the supply of umbrellas. Rather, the issue of umbrellas was deferred to another day. ISSUE 4: WHETHER THE DEFENDANTS ARE LIABLE TO THE PLAINTIFF IN DAMAGES 32 The defendants also pleaded defences arising from representations alleged to have been made to them by the plaintiff. Those representations are in the same areas as the subject matter already discussed under Issues 1, 2 and 3 above. In general, it follows from the decisions I have come to on those issues and the reasons I have given for them that none of the representations is made out. The only thing that I shall add specifically is that, in so far as it is alleged that there was a representation that the contract was terminable at the will of the defendants, I find that no representation was made to that effect. Apart from anything else, it is not established that anything was said with sufficient clarity to operate as a representation. Although there was some evidence concerning dissatisfaction of the defendants at the quality or nature of the coffee supplied, it is to be noted that there was nothing in the defence concerning the quality of the coffee. 33 It flows from the above that the defendants are liable to the plaintiff for damages for breach of contract. They were not entitled to terminate the contract when they did. They were bound to it for its three year term expiring on 18 May 2004. It was an implied term of the contract that they would during its subsistence purchase all their coffee supplies from the plaintiff. The plaintiff therefore lost the profit that it would have derived during the balance of the three year term and is entitled to damages in respect of that loss of profit. ISSUE 5: IF SO, WHAT IS THE QUANTUM OF SUCH DAMAGES? 34 The plaintiff has calculated the loss of profit on the basis that, had the contract been honoured, the defendants would on average have purchased about 28.5 kg of coffee per week during the balance of the term. On the evidence, their purchases, for a year before they entered into the contract with the plaintiff, averaged 29.4 kg per week and, during the 10 months that it subsisted, averaged 28.5 kg per week. There is evidence that suggests that the defendants' coffee purchases after the termination of the contract for some time considerably exceeded 28.5 kg per week. There was no suggestion on the defendants' part that, during the balance of the three year term, their coffee purchases fell below 28.5 kg per week. The plaintiff's calculation of lost profit on the basis of sales at that rate during that period is $60,328.80. Evidence of the rate of profit on each kilogram sold was given by their accountant. There is no reason to doubt that evidence. By the time of the trial, the three year term of the contract had expired. As the period of the loss has wholly passed, there is no need to discount the damages for accelerated payment. In the circumstances, I find that the plaintiff's calculation of lost profit appropriately represents the measure of its damages, which I assess at $60,327.80. 35 Any outstanding issue, as to costs or otherwise, may be raised when this judgment is delivered. ********** 22/11/2005 - Inadvertent error, last sentence. - Paragraph(s) 3 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.