Zettex Ltd v. Scientific Dyeing and Finishing Works Ltd

HCA000090/1977

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ACTION NO. 90 OF 1977

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Coram: Morley-John, J.

Date of Judgment: 25th February, 1978.

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JUDGMENT

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1. It was agreed that early in January 1976 the plaintiffs caused 1761 pounds of rib knitted fabrics to be sent to the defendants in order that they be dyed red in colour. It was agreed that the fabrics were to be dyed to fast colour. It was also agreed that the defendants dyed the said fabrics and returned them to the plaintiffs. The red fabrics were to be used by the plaintiffs in the manufacture of T-shirts. These T-shirts were to be red and beige in colour. The red fabric to be used being that dyed by the defendants. The plaintiffs gave evidence that they had manufactured 479 1/2 dozen shirts before they discovered that the red fabric that they alleged was dyed by the defendants was not colour fast with the result that the shirts were damaged as soon as they were washed and were therefore unsuitable for sale. The defendants denied that fabrics dyed by them are not colour fast and they alleged that the fabric used by the plaintiffs which was not colour fast was obtained by the plaintiffs from some other source.

2. Documents details of which are set forth in the schedule exhibit P.5 were produced and I am satisfied from them that 1761 pounds of fabric were sent by the plaintiffs to the defendants, that they were dyed by the defendants and returned to the plaintiffs. From the evidence adduced by the plaintiffs I am satisfied that the fabric that they used to manufacture their shirts was dyed by the defendants. Mr. Lam Woo Wah, a director of the plaintiff company gave evidence to this effect which I believed. Inter alia he pointed out that a manufacturer would ensure the fabric to be used in the fulfilment of an order would all be dyed by the same company to ensure that there would be no variation in shades of colour and standards of work.

3. The plaintiffs produced two shirts which they had washed out of the 479 1/2 dozen that they alleged they had manufactured and it was clear to the naked eye that the red fabric was not colour fast. The plaintiffs also produced a sample piece of the remaining fabric which still had not been made up into shirts with a report from Hong Kong Standards and Testing Centre showing a low grade of colour fastness but they could not inform me from which batch of fabrics it had been taken. Therefore I am satisfied that at least some of the fabric dyed by the defendants is not colour fast. On the other hand the defendants adduced evidence that before any dyed fabric leaves their factory it is tested in their laboratory and they produced laboratory reports which I was satisfied referred to all but one of the batches of material supplied by the plaintiffs and dyed by the defendants. Each of these reports showed that the fabric had been found to be colour fast. However no laboratory report was produced to cover the batch of 151.5 pounds of red "cloth" redelivered to the plaintiffs by the defendants on the 25th February 1976 by the defendants delivery order No. 6512 being document 25 in the bundle of documents produced which showed that the plaintiffs acknowledged receipt of this fabric on the 26th February 1976.

4. As I have said I am satisfied that the red fabric used by the plaintiffs in the manufacture of the shirts in question were all dyed by the defendants. Also the defendants have satisfied me that all but one batch of dyed fabric redelivered to the plaintiffs is colour fast. Furthermore I am satisfied that at least some of the fabric dyed by the defendants is not colour fast and by process of elimination that fabric must be the 151.5 pounds of the fabric redelivered on the 25th February 1976. Evidence was adduced that this batch of fabric would all have been dyed together and therefore if one roll was defective then all the rolls in that batch would be defective.

5. Although I am satisfied that the 151.5 pounds of fabric was defective I have no evidence before me as to how much of that fabric has been actually made into shirts. There is evidence before me that 1 3/4 pounds of red fabric went into the production of every dozen shirts, therefore if all in 151.5 pounds had been used up 86.5 dozen shirts could have been manufactured. According to the plaintiffs the value of the shirts was $135.65 per dozen thus making a total loss of $11,733.72. However according to the plaintiffs' statement of claim any special damages awarded are subject to a reduction of $14,083.66 thus making the question of how much of the 151.5 pounds was used in the manufacture irrelevant so far as damages are concerned.

6. No sufficient evidence of conversion on the part of the defendants as alleged in the statement of claim was adduced by the plaintiff. Accordingly the plaintiff has been unable to prove to me any loss as claimed against the defendants and his action is dismissed.

7. Although the defendant has filed a counter-claim no mention was made of this during the proceedings and it is dismissed accordingly.'

8. I make no order as to costs.

Representation:

Patrick Fung instructed by (Deacons) for the Plaintiff

C.Y. Lee, instructed by (Philip Remedios & Co.) for the Defendant