Crisci v Mahfound [2012] QCAT 461

CITATION: Crisci v Mahfound [2012] QCAT 461 PARTIES: Andrea Crisci (Applicant) v Nazih Mahfound (Respondent) APPLICATION NUMBER: MCDO648-12 MATTER TYPE: Other minor civil dispute matters HEARING DATE: 13 July 2012 HEARD AT: Brisbane DECISION OF: Andrew McLean Williams, Member DELIVERED ON: 12 September 2012 DELIVERED AT: Brisbane ORDERS MADE: Application dismissed. CATCHWORDS: Where the applicant retained the respondent to manufacture clothing samples – where the applicant contends that the samples were to be manufactured to a finished standard – where the respondent asserted that the samples were to be work-in-progress samples only – dispute as to terms of an essentially oral agreement APPEARANCES and REPRESENTATION (if any): The Applicant and the Respondent each appeared, in person. REASONS FOR DECISION Preliminary [1] This matter came on for hearing before me on the afternoon of 13 July 2012. After hearing from each of the applicant and the respondent, as well as from the wife of the respondent (who assisted the respondent, with my leave, given that English is not his first language), I reserved the matter, in order to more fully consider the various documents that were relied upon, by the parties. -- 1 of 7 -- 2 [2] The documentary evidence was mostly comprised by copies of various emails and text messages passing between the parties, that each of them claimed would shed more light on the dispute. I have now had an opportunity to consider all of that material. These now are my reasons for decision in this matter. Factual Background [3] The applicant describes himself as a “start-up” fashion designer. His materials filed before QCAT reveal that he trades under the name “Rolf vs. Roe”, and that this business is based at Kelvin Grove, in Brisbane. [4] The respondent is a garment manufacturer located at Dulwich Hill in Sydney, and trades under the name “Quality Fashion Designs”. [5] By his Application for Minor Civil Dispute filed in the QCAT Registry on 9 March 2012, the applicant seeks the sum of $5,453.80, from the respondent. The sum claimed is a mixture of monies to be refunded, as well as damages that are alleged to have been suffered by the applicant, as a consequence of the respondent having manufactured various clothing samples, in a sub-standard manner. [6] In early November 2011, the applicant approached the respondent seeking to have a series of garment samples manufactured. The applicant informed QCAT that he required these in order to assist in marketing of his forthcoming 2012-2013 Spring/Summer Collection. Photographs that were put into evidence reveal that the clothing items that were to be manufactured were a mixture of men’s shorts and women’s shorts, and trousers, mostly to be manufactured in denim, with many of the items also deliberately distressed and frayed as a type of fashion style. [7] The applicant says that in his communications with the respondent he carefully explained that these sample garments were required fairly urgently, in order for them to be worn by models in a forthcoming fashion shoot in order to prepare “look books” that the applicant could then use to wholesale his clothing range to prospective buying agents, acting on behalf of various retail outlets. The applicant also says that he was careful to explain that the manufactured samples had to be constructed to a finished “point of sale” standard, as the garments would also be handled by purchasing agents; as well as being worn by models when the fashion shoot for the “Look Book” was conducted. The applicant informed QCAT that the respondent told him that it would not be a problem for the respondent to quickly manufacture the requested samples to the required standard. [8] Subsequently, Mr Crisci says he flew to Sydney and met with Mr Mahfound at Dulwich Hill for more than an hour and further elaborated on his requirements. The applicant says that it was then agreed that the respondent would manufacture 31 samples of various men’s and women’s fashion garments on behalf of the applicant and that these would be sent -- 2 of 7 -- 3 back to the applicant in Brisbane by courier, once the items had been manufactured. [9] The applicant says that he very carefully specified the nature of manufacture for each of the items and provided the respondent with bolts of fabric, as well as some logo buttons, yet requested that the respondent provide various other standard buttons, as well as embroidery thread in order to manufacture the garments in accordance with the applicant’s specification. In terms of that specification, the applicant says that he provided the respondent with various paper patterns, oral instructions, subsequent clarification given by means of email (with attached jpeg photographs of the garments) and that he also made himself fully available by telephone, should the respondent have any other questions. [10] On or about 15 December 2011 the applicant says that he received the completed sample garments, when these arrived in Brisbane. At that time the applicant discovered to his complete dismay that the garments had not been manufactured in the manner that he had contemplated. The applicant contends that the respondent’s efforts in manufacturing the garments fell far short of industry standards, in terms of overall quality; and that there were specific problems with many of the garments that he had received. For example, Mr Crisci instances that the respondent used differently sized zippers in the same style of garment, utilised non-matching coloured zips in garments; and stitched individual garments using more than one colour of thread. Some of the garments were intended to have a “distressed” style, yet the “rip and fray” detail on many of these items had not done completed, and certain requested detailing in side-seams had also not been performed. [11] Mr Crisci says that because he urgently required the samples for his forthcoming fashion shoot, he retained 11 samples from the 31, on the basis that these were the “least worst” from among those that he had received. The applicant then used his own best endeavours to urgently rectify these 11 items of clothing before using these for the fashion shoot. In relation to the remainder, the applicant says that these were returned to the respondent on the basis that they were completely useless to him, and did not accord with his specification. [12] The applicant’s claim before QCAT is now based on his seeking compensation for the poor quality of the manufactured sample garments, and the failure by the respondent to follow the directions given to him by the applicant, and thereby producing goods which are alleged not to be in accordance with that which had been ordered. [13] The applicant has quantified his losses by means of an annexure attached to his application to QCAT. These costs include costs associated with consulting with patternmakers and seamstresses in order to try and rectify imperfections in those 11 garments that were retained; the extra costs caused for the applicant for postage; the cost of wasted buttons and fabric; and a component for his own time spent whilst attempting to rectify the samples that he had retained; as well as compensation for various costs -- 3 of 7 -- 4 incurred by the applicant in compiling his application to QCAT, including the costs of some preliminary professional legal advice that was sought by him. As indicated previously the total amount claimed from the respondent by the applicant is $5,453.80. [14] The respondent did not file any written material before QCAT prior to the hearing of this matter. However, Mr Mahfound and his wife travelled to Brisbane and presented their case, in person. [15] Although Mr Mahfound agrees that he met with Mr Crisci at his factory in Sydney in order to discuss the manufacture of some samples, he says that Mr Crisci was with him for much less time than has been asserted by the applicant and says that they met for no more than about twenty minutes, at most. During that time the respondent says that Mr Crisci did not, at any stage, explain that the samples were intended for showing to prospective retail buying agents, and at no time mentioned that he was asking the respondent to provide finished product for his forthcoming spring/summer collection. Mr Mahfound informed QCAT that he was only asked by the applicant to manufacture samples – which he understood to mean that the applicant wanted “work-in-progress” samples, that could then be further considered and refined by the applicant, before the final style for the finished garments was settled upon. The respondent also told QCAT that it is quite common for him to prepare such samples for various trade customers, in order that they can refine and finalise the style of various fashion garments, before these are ultimately used as the basis for a production run. [16] Mr Mahfound said that, in particular, Mr Crisci specified that there was no need to match threads to fabric colours and that he was told that he should go ahead and “use whatever thread happened to be on the [sewing machine] bobbin”, because the garments were only intended as working samples and colours and fine details were not important to the applicant, at that stage. In addition, Mr Mahfound says that no clear specification was provided in relation to zips and he was similarly told to just use whatever zips might be to hand, at the time. The Respondent also said that rip and fray detailing on denim clothing is not a service offered by him, as this is something that can only be done in a commercial laundry. [17] In response, the applicant denied ever having said these things to the respondent and reiterated that he had made it abundantly clear to the respondent that these garments were required to be manufactured as if they were final “point of sale” garments, and that these were needed for a fashion shoot in order to have finished product photographs for inclusion in his “Look Book”. Again, Mr Crisci reiterated that he had provided highly detailed instructions and that the substance of his instructions was later confirmed in a serious of emails. Mr Crisci was also at pains to again assert before the Tribunal that the garments had not been manufactured in accordance with industry standards. [18] Both the applicant and the respondent brought very many clothing samples along to QCAT, and spread these out on the floor of the hearing room and -- 4 of 7 -- 5 attempted to explain, for my benefit, errors in the manufacture of the disputed garments (in the case of the applicant), and reasons why the state of these garments ought not be regarded as defective (in the case of the respondent). In addition, each of the applicant and respondent brought other clothing samples – either as manufactured by the respondent on behalf of other fashion companies – or, as samples from other reputable and fashion labels (in the case of the applicant), in order to demonstrate for my benefit what ought to be expected in a finished garment. At the end of it, I must say that I did not find these mounds of garments especially helpful as evidence, given that the essence of this dispute really turns on the question of what had been agreed between the applicant and the defendant back in November 2011 regarding the quality of manufacture. Unfortunately, no amount of clothing heaped on the hearing room floor could help, in that regard. It would seem to me that this was an oral agreement, and what is now required in order to resolve the dispute is extrinsic evidence that helps to determine, one way or the other, what the terms of that agreement were. [19] As indicated this dispute ultimately falls to be determined on the basis of whether the agreement between the parties was for the respondent to manufacture final “point-of-retail-sale” quality garments; or, whether the agreement was for the respondent to instead manufacture only “work-in- progress” samples. On the one hand the applicant says that he was abundantly clear in specifying that he required final sale quality garments. Yet the respondent disputes this, in equally adamant terms. The dispute is therefore a classic one, where one party says black, yet the other white, and each of them are unwilling to surrender ground to the other. [20] At the conclusion of the hearing I adjourned this matter in order that I could more carefully examine the exchange of emails and text messages between the parties, in order to ascertain whether I might glean from them further evidence regarding the precise scope of the respondent’s retainer. In other words, the task for me was to try and ascertain whether the emails might lend weight to the assertions of either party. At the same time, I am conscious that it is the applicant who must discharge some evidential and persuasive onus in order to show that the agreement between the parties was as he now asserts it to be. [21] The various emails between the applicant and the respondent now appear as Appendix 2 to the applicant’s application to QCAT. It would seem that the first email going towards the substance of the agreement between the parties was that sent by the applicant on 15 November 2011 at 11.29pm. By that email the applicant specified to the respondent that he required certain samples to be made in accordance with the items listed in that email. The email specifies that various items of clothing were to be made with various types of denim, and other fabric as specified, and that in some instances, items are to be sewn with 100% cotton thread as these garment items would be later dyed in one consistent colour. However, there is nothing specific in that email that confirms that the respondent was made aware that the products were to be manufactured to a final point-of-sale -- 5 of 7 -- 6 standard, nor that these garments were to be used in a subsequent fashion shoot. The applicant does indicate that he was going to forward to the respondent some custom logo buttons but also requested that the respondent otherwise provide “standard matt silver buttons” if these were available. The applicant also requests the respondent to see whether he had any fabric that might be usable for pocket linings and otherwise requests that the respondent contact the applicant should he have any questions. Unfortunately therefore, there is nothing in that first email that either confirms or refutes that the agreement was one that required the respondent to manufacture garments to a point-of-sale standard. Subsequently, on 8 December 2011 at 9.48am the applicant again emailed the respondent, this time including some jpeg images of how the applicant expected his garments to look. The instructions given therein do descend to some particularity in relation to embroidery styles and provides some specification as to where the embroidery was to be located and the email further refers to “three new patterns” that were to be sent by mail that day. Again however from that email I am simply unable to ascertain whether it was clear that the samples were to be manufactured in final form. [22] The remainder of the email traffic exchanges as between the applicant and the respondent post-dates the point at which the applicant had received the manufactured samples from the respondent, and had taken issue with them. These emails are therefore not relevant to what had been agreed between the parties as they post-date the formation of any agreement between them. [23] The applicant further complains that there is a lack of consistency in the style and quality of the manufacturing and makes complaint about various matters, including the fact that garment flies had been stitched closed (thus making it impossible for a model to put on the garment); buttonholes not having been cut through in order for a button to be passed through them; and of pocket lining having been finished in an inconsistent fashion. There are a litany of other manufacturing faults specified in those emails from late December, yet the respondent’s rejoinder to all of that is that this was to be expected, given that he was of the understanding that he was only at this stage being asked to manufacture “work-in-progress” samples. [24] Appendix 4 to the applicant’s application to QCAT contains a serious of screenshots of text messages as between the parties. I have perused these, as well. Unfortunately, there is nothing within those text messages either that sheds any further light on the scope of the retainer given to the respondent by the applicant. [25] The applicant also contends that what he received does not accord with expected standard of manufacture within the fashion industry. Yet, the applicant has not provided any evidence (other than his own assertion) that this is the case. Ordinarily, in a case such as this, one would have expected some evidence from a fashion industry expert in order to show that the garments – as manufactured – fell short of what is required. In the absence of evidence of that kind, and in the particular circumstance wherein the respondent is equally adamant that he was only asked to -- 6 of 7 -- 7 prepare work in progress samples, I am not prepared to find that the garments that have been manufactured now fall short of any alleged industry standard. [26] Furthermore, in order to succeed the applicant would need to show that the agreement he had with the respondent required the respondent to prepare goods to a standard that was the equivalent of a point-of-sale fashion garment, and that the respondent was aware of that fact. The oral evidence that I have heard is simply insufficient to allow such a finding and, as indicated by me above, the text and email evidence is equivocal in terms of shedding light on the scope of the respondent’s retainer. On this basis the applicant has failed as a matter of evidence to show that the agreement between the parties was one in which the respondent was required to manufacture goods to a finished quality standard. [27] This case stands as a classic exemplar of the kinds of problems that can arise whenever parties fail to reduce the terms of their commercial agreements to writing. [28] I dismiss the application, on the basis that the applicant has failed to prove his claim. -- 7 of 7 --