Case: Given v Pryor (1979) 24 ALR 442
Outcome: cited
A "representation" includes a statement made by a representor to a representee and relating by way of affirmation, denial, description or otherwise to a matter of fact ( Halsbury's Law of England , 4th ed vol 31 para 703, cf Given v Pryor (1979) 24 ALR 442 at 446). In this case the representation made by the first respondent through Mr Strahley is that the yield data (a) were produced by the field staff and (b) Mr Strahley would use the data in reforecasting the yield figures which he would later provide to Mr Tracy. It is not, in my view, an unqualified representation as to the yield figures, upon which the applicants could rely as against the first respondent. At its highest, the data is field information, which appears to have been provided for the information of Mr Tracy, but which was subject to review by Mr Strahley. To that extent I do not consider that the provision of the Yield Summary.xls to Mr Tracy conveyed representations that: &#8226; the land would yield 14,075 bins of fruit for the Crop Year 2005; &#8226; the land would yield 19,567 bins of fruit for the Crop Year 2006; or &#8226; the land would yield 22,322 bins of fruit for the Crop Year 2007. 492 However if I am wrong in relation to this finding, and the provision of the Yield Summary.xls does constitute a representation to the applicants as claimed in paras 14(b), (c) and (d), I nonetheless consider that the first respondent has discharged its onus of proving that it made the representations as to yields in 2005, 2006 and 2007 on reasonable grounds. In particular: &#8226; Similarly to my earlier observations in relation to para 13 Further Amended Statement of Claim, I accept that the total yield estimate for 2005 in the Yield Summary.xls was lower than the yield that had been achieved by the first respondent in 2003, and was accordingly achievable. &#8226; Although the estimates for 2006 and 2007 were in excess of yield achieved in previous years, I accept that the basis of the forecast was that the first respondent took into account historical data, physical inspection of the trees, current cultural practices, previous yields, and factors such as disease and weather conditions. I consider my earlier analysis of yield issues in relation to the 2005 Sunstate Budget.xls applicable to the applicants' claim in para 14(b), (c) and (d). &#8226; Mr Burns gave evidence that in his view: o the benefits of the improved pruning practices implemented in 2004 would have mainly been seen in the 2006 and 2007 Crop years (Burns affidavit sworn 11 July 2006 para 38); o the benefits of the improved pruning practices would have been "huge" (TS 673 l 39); o the improved spraying practices would have reduced disease, and improved fruit quality and therefore packout rates in the 2005 season and the following seasons (Burns affidavit sworn 11 July 2006 at [65]); &#8226; Mr Strahley gave evidence that he expected the improved cultural practices would improve the 2005 to 2007 yields (Strahley affidavit sworn 12 July 2006 at [228], [258]). &#8226; The claim of the applicants in paras 19(i), (j) and (k) as to the "true position" are not substantiated. I will deal specifically with the claims in para 19 in more detail later in the judgment. 493 This is not a case where there is no adequate foundation for optimistic predictions of future production. In my view the claims of the applicants in paras 14(b), (c) and (d) are not substantiated.