Co-Agency Dispute: P v. D (Part 2)

Co-Agency Dispute: P v. D (Part 2)

(Continuing from Part 1)......M's boss, P, appeared for the first time in a letter dated 3.7.2006 with her official name and the designation "Principal" (Exhibit P20, Pg. 33 of Bundle C). In that letter, P referred to P firm's letter dated 3.1.2005 which was signed with the name Sharon DM and not P's official name; with the designation "Resident Manager" (and not "Principal") and a different signature as "our" letter and not "my" letter.

In that letter, P referred to 3 other documents dated 31.1.2005, 4.2.2005 and 15.2.2005 allegedly as evidence that there was a co-agency agreement on or around 4.1.2005 on the 2 parcels of lands for sale by tender at Jln Page, Ukay Heights (which P termed "Hartanah-hartanah tersebut" and defined in Para 2.2 of her Statement of Claims and in A15 of her Witness Statement).

Interestingly, D in his W.Statement and testimony claims: that the 3 documents in fact do not show that there was a co-agency agreement on or around 4.1.2005 as claimed by P in Para 3 of her Statement of Claim and in A15 to A20 of her W. Statement. Instead, they prove otherwise:
1) That the first document dated 31.1.2005 shows in its first line (Para 1) that M enquired about the 2 parcels of lands for sale by tender only towards 31.1.2005 - so, how could there be an agreement on or around 4.1.2005 even before an enquiry on the 2 properties was made by M?

2) That there were two copies of the 2nd document dated 4.2.2005 adduced by P: The first copy, adduced during the 1st bundling of documents in Jan 2009, show that the draft of D firm's co-agency letter was seen and approved by M's resident manager Sharon DM on or shortly after 4.2.2005 -- it carries only Sharon DM's signature and not D's signature; and the second copy, adduced just 1 working day before the trial started, was the original copy of D firm's co-agency letter which has the signatures of D and that of P firm's resident manager (Sharon DM) together with the particulars Y inserted in hand-writing without any acknowledgment of the inserted particulars nor acknowledgment of receipt of this document by D.

That the 2nd documents both show that negotiation for a co-agency agreement on the 2 properties for sale by tender only started on or shortly after 4.2.2005 - So how could there be a co-agency agreement one month earlier on or around 4.1.2005 even before negotiation started on or shortly after 4.2.2005? If there was already a co-agency agreement on the two properties on or around 4.1.2005, would there be any need for another co-agency agreement on or around 4.2.2005? Doesn't the existence of the 2nd documents mean that even if the co-agency document dated on or around 4.1.2005 was indeed about the 2 properties (which D denies it was about the 2 properties), its terms were not finalised - otherwise why the need for another agreement dated 4.2.2005 to replace or amend it? In either case, doesn't S30 and/or S63 of the Contracts Act respectively operate to nullify it?

3) The third document shows that as at 15.2.2005 - i.e with just 3 days to go before the tender closed, M still had not introduced Y to D; and M still had not viewed the two lands with D and Y. Clearly, the three documents in fact did not show that there was a co-agency contract on or around 4.1.2005 contrary to P's claim - they in fact prove otherwise! P had frivolously and vexatiously based her suit on an irrelevant document dated on or around 4.1.2005 as the written co-agency contract in Para 3 of her Statement of Claim.

P's letter dated 3.7.2005 was acknowledged receipt by D on 7.7.2006.

On 11.7.2006 - 4 days after receiving P's one and only one letter, D wrote a reply detailing point-by-point in a-matter-of-fact manner why based on the co-agency letter dated 4.2.2005, D would not be paying 50% of his agency fee as co-broking fee to P's firm. The co-agency letter dated 3.1.2005 from P's firm signed by its resident manager Sharon DM was ignored by D because D knew, as explained earlier, it has absolutely nothing to do with the 2 parcels of lands for sale by tender - it was about another bungalow land, put up for sale by private treaty by another agency for its owner who bought it in 8th Danaharta Open Tender in year 2003 and this bungalow land is located along Jalan Page, Ukay Heights and is adjacent to the 2 pieces bungalow lands for sale by tender as described in Para 2.2 of P's Statement of Claim and in A15 of P's W. Statement.

In D's reply dated 11.7.2005, D claimed, among others, that the co-agency letter dated 4.2.2005 (a professional document under Circular 2/97) was invalid & void as a contract  because it was signed by someone with no competence to do so (S10 & S11 of the Contracts Act) - Sharon DM was not a registered estate agent (Rule 102 of the Valuers, Appraisers & Estate Agents Rule). D enclosed the relevant circulars of the Lembaga to substantiate D's reasons and also pointed out to P that the Invoice enclosed by P (in her letter dated 3.7.2006) contains illegalities on its face as the invoice designates M who was not a registered agent as M firm's "Agent" when the law (S22(C)(1) of the VAEA Act) clealy disallows this; and the invoice, being a document on fee (Rule 102 & Circular 2/97), must carry a REA's signature but it did not.

(Note: Despite this, P in pleadings has the audacity to claim in Para 6 of her "Jawapan" to D's "Pernyataan Pembelaan" that "D at all material times had knowledge that M was a representative/agent of P". Isn't this frivolous and vexatious to the core because the fact is: D had clearly objected to M being labelled as "Our Agent" meaning "P firm's agent" in the first invoice and that resulted in P's lawyer CWC sending a second invoice without M being so designated! And, Rule 102(3) of the VAEA Rules clearly disallows M who is not a registered estate agent to represent a registered agency/agent. At most, M could only act as an assistant of P known as a Negotiator. But no where in P's pleading did P plead that M was her legally employed Negotiator because she knew that if she were to plead that, D would have challenged P to prove that M was her lawful Negotiators which M was not because M told D that she did not receive any salary, EPF or Socso contributions from P's firm but her commission share was much higher than the 40% maximum allowed by our estate agency law. D's lawyer would have cross-examined M on M's status as a legal Negotiator of P's firm had P pleaded that M was at all material times her lawful Negotiator because D did prepare and hand over a long list of questions to D's lawyer to cross-examine M on her legal status as a Negotiator.

The same P acted during sworn testimony as if she could not read figures - thousand read as million - when her job is a real estate agent who regularly deals with figures! This happened after P's lawyer sought D lawyer's consent, before the trial started, to amend the erroneous figures of claims on the ground of typo error in P's Statement of Claim and the Summons (which error D had noted and pointed out in D's "Notis Kehadiran" way back in March 2007) - identical typo errors in 4 different places! Anyway, D allowed D's lawyer not to object because D does not want the case to be delayed by petty issues.)

In the same reply (a marked exhibit at Pg. 40, Bundle C), D also mentioned that there were misrepresentation in P's letter dated 3.7.2005 of what actually happened: P had in her letter pretended no knowledge that D had received agency fee from its client in mid-2005 when in fact D had informed M about this and was considering "equal sharing of service tax risk" as a possible way out to settle issues arising from P firm's real estate agency practice which was materially not in compliance with the law (please see: Part 1 of this post).

P did not reply to D's reply dated 11.7.2006. P also did not immediately claim that Sharon DM was also P.

On 3.11.2006, D received a letter of demand from a law firm CWC claiming to act for P's firm and demanded payment of 50% of D's agency fee for the successful sale by tender of the 2 parcels of lands. CWC enclosed another invoice - this time no longer designating M as "Our Agent"; and, this time, the invoice carried P's name and signature. CWC's letter of demand also did not categorically state that Sharon DM is also P; the designation of "Resident Manager" is also referring to the Principal; nor, that when P signs as a "Resident Manager", P always signs with another signature.

On 13.11.2006, D wrote, again on his own and without any legal advice, a reply to P's lawyer CWC saying, among others, that D's letter dated 11.7.2006 to P has clearly and fully set out the reasons why payment of 50% of the fee...has not been paid to P's firm and a full photo-stated set of D's letter dated 11.7.2006 to P was attached in D's reply to CWC. No further response or reply from P or CWC until March 2007.

In March 2007, P filed through CWC a Summons and a Statement of Claim against D.

On 28.3.2007, (again, on his own and without engaging any lawyer) D filed a "Notis Kehadiran" in which D said (in translation):
" I dispute P's claim because, firstly, the written agreement (please see: Para 3 of P's Statement of Claim) on which P's claim is based is null and void and unenforceable in law; secondly, the Statement of Claim contains inaccurate facts and figure of claim; and thirdly, on reasons which I have stated to P and P's lawyer and on reasons which will be stated."

Stay tuned for Part 3...to know more about the dispute.