53 Ornamental Pear trees (“Bradford Select”) were purchased from Willow Park Nursery, Pialligo ACT, as bare-root stock on 20/07/2017, costing $30 each ($1,590 in total). The trees were all planted under the guidance of a horticulturist. Of the 53 trees only 33 were successful in producing leaf in spring (2017). The failure rate of 38% (20 trees) is unacceptable. Willow Park will not replace (as previously promised) or refund money relying in defence on their tax invoice, which says “Willow Park does not have a live plant guarantee”. At no time before or during the sale was this proviso made evident. Had it been, I would have attempted to source from a more reputable nursery with a plant guarantee. The failed plants were returned to Willow Park on 30/11/2017 with a letter of claim. Failed plants exhibit “suckering” below the graft, which renders them “not fit for purpose” as apple tree rootstock has been used. This renders the plant labelling “false and misleading” as the suckering below the graft would have resulted in an apple tree, not an Ornamental Pear. The owner of the business (Theodore John Cassidy) has reneged on a previous promise to replace failed trees next bare-root season and refuses to discuss the matter. Subsequent review of Willow Park Nursery on Facebook shows considerable consumer angst and a disturbing pattern of denial by the owner.
Are there any nurseries out there that would actually offer you a success rate percentage without some sort of proviso attached ?
Bare root failure rates are higher than potted plants, they are also significantly cheaper. This website from the UK indicates that failure rates of bare rooted plants can be up to 50%.
Also, how do you know it was apple rootstock?
Also, in the 4 months it could be argued what caused the 38% failure rate. Was it solely that of the rootstock/bare rooted plants. There are a large range of things which impact on bareroot plants from weather, soil conditions, pre-plant drying out, fertiliser application etc. Such the nursery could not be responsible for if these also caused failures.
Yes, I have since found out that Rodney’s Nursery, Pialligo has a six-month plant warranty. You can bring a “sick” plant back and they will try to rehabilitate and provide assistance (assuming nothing detrimental has been done by the customer). If that fails they will replace it. Willow Park does not even try; their endeavours focus on alienating the customer and even when an agreement is reached they won’t put anything in writing as clearly, they have no intention of honouring. Success rate? I expect some failures but not 38%. My existing plantings of more than 150 trees and bushes have a success rate of 99.3%, using the same method as I did with the Pears.
[quote=“arboreal_2014, post:4, topic:14839”]
[/quote] Good to hear .I wish you all the best with your endeavours .
Yes, I accept and have studied all of the issues you have raised but still the balance of probability rests blame on Willow Park Nursery. The stems looked woody and dead even when planting but it was my first experience with this type of plant so did not know any better. I consulted a horticulturist who indicated that the graft rootstock appeared to be apple. The bare rootstock cost me $30 per tree. Willow Park is currently selling the same tree, 1.5m high Ornamental Pears (Bradford Select), in full leaf, for $35 so poor fool me. I am a reasonable person and would listen to counter arguments but the owner of Willow Park simply was not interested in reaching a compromise nor even examining the defective plants.
It may be worth doing some research and asking the nursery questions on this…rather than jumping to conclusions. It could be hard to determine what the root stock is, especially from bare rooted plants.
This will be very hard to prove it wasn’t the customer, especially with bare root stock as the risks of failure can be high from relatively simple events, such as the roots being exposed to the sun, drying out, fertilser placed close to roots on planting, heavy frosts etc.
I would loved to have discussed the matter further with the owner of Willow Park but he was simply not interested. I am not the only one to experience problems with owner (refer to Facebook reviews). Its been reported that he recently threw a plant at ‘complaining customer’. Even if I knew what rootstock was used for the graft, would this make it any better? As I said previously, the balance of probability puts the blame on the nursery. Notwithstanding, having spent over $2,500 with Willow Park to date, wouldn’t you think that some negotiated compromise would be in order? No, too hard for Mr Cassidy as on his own admission he treats all customers the same (obviously, poorly) regardless of how much they spend.
He’s got a fantastic Facebook review page (not!) - probably doesn’t even know its there (its an automatically generated one - he hasn’t claimed it for his business).
From their Home Page - ‘about’
Willow Park Nursery is owned and operated by a Canberra family with a business history in the Canberra region dating back to the 1930’s . At the time Willow Park was a market flower nursery used for growing cut gladioli and daffodils. The original homestead was built in 1932 and still stands in the front grounds among the shade of the established trees and gardens including some of the oldest trees in Canberra today.
So in the last 80 years they have made enough money to not give a rats about their customers? If they’ve got some of the oldest trees maybe selling you dodgy ones is their way of retaining that title? 
Willow Park Nursery is arguably Canberra’s oldest nursery and retail garden centre. Willow Park Nursery has been the properties’ trading name since the 1940’s, where as local history tells it, residents would meet in the sunroom of the homestead during World War 2 to discuss the potential threat of Japanese bombing runs in the area due to the close proximity to the Royal Military College Duntroon site.
… and things in that department haven’t improved since the 1940’s !!
Willow Park Nursery will definitely not shop there . Have a real phobia about Japanese bomb runs . They are real you know in 2017. It said so in Facebook . So there .
I have lodged a claim against Willow Park Nursery through the ACT Civil and Administrative Tribunal. Willow ParkNursery have involved a high-powered lawyer to defend their position in a “Conference and Immediate Determination” hearing.
In a written response to my claim their lawyer’s rebuttal centres on the Tax Invoice/Receipt, which, because it states “Willow Park Nursery DOES NOT have a live plant guarantee”, there is no case to answer.
There were no signs or verbal advice given by the nursery to that affect prior to or after purchase. The Tax Invoice/Receipt was merely a “faded” FPOS print out and handed to me after the transaction had been approved by my credit card provider. Like most people do I simply put it in my wallet for later marking off against my credit card statement.
Had I known about a “no live plant guarantee” in advance of purchase I would have reconsidered my purchase decision.
Consumer question: Does an important condition of sale, not disclosed in advance, carry sufficient weight for a supplier to deny any claim?
I think you’d have to firmly establish the no live plant guarantee was an important condition of sale in this case, really establish it even if it seems like you are stating the obvious - seems like a no brainer to me that it is so I don’t see a problem doing this, but remember you are now dealing with … (drum-roll) …
I have some, but limited experience with lawyers - but the fact they have engaged someone you describe as ‘high-powered’ might tell you something - I’m not sure, but to me it says they are intent on winning (maybe obvious), possibly a little worried their case is thin, going in to out gun you from the outset.
One thing I have observed with the legal profession is that they often seem to have no belief whatsoever in their own argument, but they will do everything to convince you they do, and that you should, and they are right - in other words, the fact a lawyer makes an argument or claim could mean precisely nothing. For them it is only about winning … oh, about money, then winning.
(Apologies to the good lawyers out there - who do good work, support causes, poorer people, etc - I have experienced some like that 
I’m generalising about the kind who might take on this kind of case, mixed with my own distaste for companies with apparently no ethics …)
Thank you for your insight. I will post result after the hearing in late May.
I expect that it also comes down to the reasonable person test. When planting out, one would expect a certain percentage of mortality through no fault of anyone (the planter or the nursery). Some plants push up daisies for a number of reasons, some of which can’t be explained (even planting on the wrong aspect as increase mortality). Some species are also more susceptible to high mortality if not handled/planted appropriately or managed effectively to establishment.
Also, something in the reasonable person test would be what would be an acceptable level of mortality of the plants were planted correctly and fully maintained until establishment (which for some plants can take months to a year).
What would be the acceptable level of of mortality should a novice plant the same tree and the same level of management not applied?
Having managed plan outs for local government and also for clients in the past, for plant out using experienced persons and also good maintenance (weed suppression, watering, support/staking, mowing competitor grass etc until establishment), one could expect a mortality of around 10%. I also recall that organisations like Greening Australia also factor in a mortality percentage in the work they do and over plant to ensure that the established density is that specified in the plant out contract.
In your case,if the ornamental pear trees you purchased had an expected mortality of say 10-15% (note, this is a made up number and could be different to what could be expected/reasonable) when planted and managed appropriately, then the issue will be the difference between the mortality you experienced and the 10-15%. The other thing to prove will be what caused the increased mortality. You would need to provide that it was the direct result of the quality of the root stock and not from the elements/conditions the rootstock plant was exposed to after purchasing/planting. To prove it was the nursery may be difficult as all other potential sources of mortality would need to be ruled out. Only a suitability qualified expert (such as a consulting horticulturist) supervising the plant out would be able to start qualifying what potentially went wrong with the rootstock in your case.
Thank you for your advice. My success rate with over 200 plantings is in the 98% range, which I put down to diligent preparation and ongoing maintenance. In this case preparation included weed elimination, deep ripping, mulching, digging Dinofert into a deep hole, careful application of Terracottem, mixed into the soil, “Pink” tree guard, hardwood stakes, surface application of slow release pellets and weekly watering from 5 to 10 litres (subject to rainfall). For the nursery to engage a high-powered lawyer (at arguably >$650 per hour) is commercially short sighted (my claim is for less than one hour of his time)! Apart from all of that, wouldn’t you think that for a customer who had spent in excess of $2,500 with this nursery that they would be happy to reach a compromise before reaching this point? I will post the outcome. See photo Success planting of “Bradford Select” 7 months on.
This is a good success rate. The recent plantings in the photograph also looks healthy.
Also, even though you may have exceptional success for other plantings, don’t forget that each planting conditions will be different to that of the past. The inherent soil conditions can change (soils a few metres apart can be quite different) between plant out areas. The physical, chemical and biological properties of the soil can impact success between planting sites.
Also, the weather conditions (temperature, humidity, sun intensity, wind etc) during cartage, handling and on and immediately after planting would also be different. Such subtle changes can also impact success rates.
Each planting site will also have its own intrinsic conditions. Some may be exposed to more sunlight, hotter western sun, greater number or more severe frosts etc.
This is why I believe that it will be very hard to prove it was the root stock which was the only cause of the lower establishment rate that you had enjoyed in the past. I am not saying that it wasn’t part of the problem, but when one considers all factors including transport, handling, site conditions and inputs at/after planting, these other factors could have also contributed to lower success rates.
This is where your challenge will lie, especially if you had used the same nursery for previous plant outs as past quality of plants would have been acceptable and able to achieve high success rate. It could be argued that the nursery has management systems in place to maximise the success of plant out from their end. Challenging this will be difficult and is possibly why the nursery has commissioned a lawyer rather than accept what you say.
A good Australian text which can be used as a guide is Growing media for ornamental plants and turf by Kevin Handreck and Neil Black. The book has a section on nursery to landscape, and also addresses many of the common attributes and problems of growing media and local conditions.
Thank you again for your advice. A fundamental, overlooked, aspect is that the owner of the nursery agreed to replacement with new bare-rootstock this coming winter (in essence, acknowledging a certain liability or at the very least attempting to retain a good customer). The fact that he subsequently refused to countersign a letter of acknowledgement, prepared by me, and now denies he even made the offer is telling. I will leave you to draw your own conclusions on that aspect. Sadly, I am not alone in my troubles with this business as Unofficial Facebook page reveals.
Interesting they brought in the big guns for a few trees. Must be those bombing raids:-)
However, in NSW the NCAT is a lawyer free jurisdiction so I am surprised that ACT CAT have allowed them to be represented. I know because I took a builder there over shoddy work and they tried everything to bring lawyers. It is rarely, if ever, permitted.
As far as the receipt goes, can you get someone to go back there and make a small purchase, pay by credit card and then check what that ‘receipt’ says? Also maybe use a smartphone to take some pictures particularly of the tree and payment areas for any signs that may support the ‘no guarantee’ claim. If there is still no signage, then that would go to your claim of not knowing or being told that they don’t guarantee ‘live’ plants.
Thank you for your helpful advice. A friend recently mentioned, based on his experience with NCAT that they certainly do not like “lawyering-up” and in one such situation (tenancy dispute) a lawyer was told “go and wait at the back of the room”!
ACAT ‘expects people to run their own cases’, but it appears lawyers are not sent ‘to the back of the room’ during proceedings. ‘You might not need to have the expense of a lawyer in court with you, but knowing how the lawyer would run the case if s/he were there is often of great benefit.’
https://www.acat.act.gov.au/about_acat/legal_advice_assistance
