Thank you, that is valuable advice, for which I will take advantage.
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Was this at the point of sale or when you complained about your high mortality rate?
If it was at the point of sale, what was the wording used…was it something like:
- If the bare root stock die as a result of the quality of the root stock you have purchased, then we will replace them next winter?
OR
- If any of the root stock dies for any reason, then we will replace it next winter?
These are quite different.
If it was the first, then you will still need to prove that it was the root stock that was ‘defective’ and this defect caused the higher morality than you experienced in the past. As outlined in my earlier post, this will be very difficult to prove as there are a large number of variables other than the root stock which could have lead to the low morality rate.
If it was the second, they would be foolish to do so as they are in effect guaranteeing the success of the root stock when other inputs outside their control are also placed on the root stock (including things like herbicide spray drift during weed control).
It is important that what they said in relation to a guarantee is presented as accurate as possible at the tribunal, as it will be your word against theirs. If there is a discrepancy between your and the nursery’s versions, I expect that the tribunal will determine what is reasonable or could be reasonably expected in relation to the guaranteeing the root stock.
I wish you the best of luck and will be interested to hear of the outcome.
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Thank you again for your input. The offer to replace the failed trees with new bare-rootstock, this winter, was made after I complained about my losses. Subsequently, I thought it prudent to seek written confirmation and to formally accept the offer so I prepared a letter accordingly. I asked the propriety to countersign the letter as acknowledgement but that is when he refused and simply walked away. At the same time I delivered the failed trees to him as proof and affording him the opportunity to raise the issue with his supplier. You sound very knowledgeable in these matters so I would raise this particular issue. I have heard that a well known Victorian supplier uses defoliant in order to get bare-rootstock into the market as early as possible. Last season there was an accidental overspray or the wrong chemical was used, resulting in considerable failures (in the hands of customers). Do you know anything about this?
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Maybe the MT Vulcanus didn’t get it all - Huey’s over Victoria !! not bombing raids after all …
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Don’t know anything about this.
Defoliants appear to be used in the nursery industry… …here is some CSIRO research…
http://www.publish.csiro.au/an/EA9730460
Unless you have proof or evidence (say from Vic Department of Agriculture etc) that wrong chemical used or overspray, the name of the supplier and after that, that your trees were sourced from the same supplier if it is confirmed, I would hestitate in using this in the tribunal. Tribunals often look at who is best to trust with the information provided when something is in dispute, and making allegations which can’t be substantiated won’t really assist your cause.
One thing you could ask at the tribunal, is the name of the nursery supplier to see if you can make contact with them directly and see if there was indeed a problem with the bare root plants the season you bought them. They may be more willing to assist if the tribunal is not in your favour.
Note. They are also likely to be made aware of the outcome of the tribunal, so you may not be successful with their supplier either…but you never know
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Thank you, that’s good advice.
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Success! At the ACT Civil and Administrative hearing on 25/05/2018 cash settlement was reached. The basis of my argument was that under the Australian Consumer Law goods must be of acceptable quality. There was no counter argument or challenge to my planting methodology or anything else for that matter and the hearing soon moved to settlement, which at 83% of my claim was a satisfactory outcome. Thank you to all those who contributed.
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Congratulations on your success, I for one am very glad it worked out so well for you and I’m sure many if not all the others feel the same.
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Excellent @arboreal_2014, we’re glad to hear you received a positive result and thanks again for sharing the experience with the CHOICE Community.
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