Co-Agency Dispute: P v. D

In late 2004, D (a registered estate agent) advertised in the Star some bungalow lands for sale at Ukay Heights, Ampang. M saw the adverts and called D. When M found out that D's bungalow lands were not along Jln Page, M asked D whether he had any along Jalan Page for sale.

D told M that he knew of another agent having a piece for sale there. [D had met this agent when he did a planning permission land search at DBKL towards the end of 2004 - DBKL's visitors log-book should be able to confirm this. This agent, a Mr. Wong - the principal of a real estate agency based in Sri Petaling (now moved to Shah Alam) had told D during the encounter in DBKL that he was selling, among others, a piece of bungalow land at Jalan Page, Ukay Heights for its owner who successfully bought it in the 8th Danaharta tender in 2003.] However, as bungalow land in Jalan Page was very sellable, M was told that the Mr Wong was unlikely to do a 3 agencies co-broking where his fee would be shared equally by 3 agencies. D suggested to M to persuade M's buyer to pay agency fee to M's firm and share 50% with D's firm so that Mr. Wong would be more willing to make available his Jln Page land listing for co-broking.

M said no problem because the prospective buyer was a childhood friend of her husband provided the land was suitable.

Soon after that, on 3.1.2005, D's firm received a co-broking letter from M's firm signed by a resident manager Sharon DM saying "our client is interested in the ... property and would like to view the said property. We would appreciate if you could make the necessary arrangement for viewing..." (Facts found out later: Sharon DM was not a name registered in the Lembaga's register of estate agent and was also not M's boss official name, P.)

At that time, D thought Sharon DM was a REA employed by M's firm to be its resident manager. D signed acceptance with his official name the next day but added and initialed an amendment to M firm's original co-broking proposal because D wanted to make sure that any co-broking fee paid by M's firm to D's firm would not be subjected to any condition for refund and so on. The qualified acceptance was faxed back to M's firm on 4.1.2005. Thereafter, D never heard anything from M again about the proposed fee-sharing and viewing.

Towards end of Jan. 2005, a lady who identified herself also as M called. This time, she called and enquired about 2 pieces of bungalow lands at Jalan Page, Ukay Height put up for sale by tender in the paper by D. D had, on or shortly after 10.1.2005, received a circular from his client to all panel agents (including D) informing them about 82 properties being put on sale by tender from 10.1.2005 to 5pm, 17.2.2005 including 2 adjoining pieces of bungalow lands at Jalan Page, Ukay Heights. These 2 adjoining pieces are adjacent to the earlier piece that Mr. Wong had for sale by private treaty.

A few days later in early Feb. 2005, M called D again. This time she told D that she was the same person who called D the other time on the private treaty land at Jln Page and that she didn't call back because her buyer found the land too small for development. She asked if she could co-broke on the 2 adjoining pieces at Jalan Page now for sale by tender and if so, requested that a draft of D's co-agency letter be faxed over to her firm.

On 4.2.2005, D faxed it over together with summary of the tendering process, etc.

Shortly thereafter, M faxed back D's co-agency letter to D's firm with M's resident manager Sharon DM's signature on it and told D that her manager had no problem with D firm's draft. She requested that D signed an original copy of the co-agency letter together with as much information as possible on the 2 lands at Jalan Page for her prospect's evaluation and if found suitable she would arrange for joint-inspection of the 2 lands during which her prospect would be introduced to D and D would have to acknowledge the introduction by counter-signing on the name and particulars of the prospect to be filled into the relevant blank space in the co-agency letter.

However, right until the tender closed, M did not introduce any prospective bidder to D; M did not carry-out any Standard 3.2.8 co-agency joint-inspection with D and M did not secure for D any tender submission from any party.

Parallel to all these: In early Feb 2005, a Gary who identified himself as a banker also called D saying that a Mr Y who is his childhood friend was interested in the 2 lands at Jalan Page for sale by tender and asked if he could meet up with D for more info. Gary met D in his office then at Desa Sri Hartamas and gave D his business card as well as the tel.-cum-fax no.of his Mom's florist shop so that if D need to fax him anything during off-office hours, he could do so. There were many tele-conversations with Gary on the 2 lands thereafter as D's phone bills clearly show.

Then, Gary told D that his childhood friend Y was interested and asked if D could buy the tender packages. After D bought the tender packages, Gary met D in D's office again and collected the 2 original tender packages. Thereafter, Gary and D exchanged more tel conversations.

At night, on the eve of the tender closing date, Gary confirmed in a telephone conversation with D that Y would be tendering for the 2 parcels of lands and asked for advice. Advice was given.

The next morning, Gary left message for D to call back for more advice on how to fill up the tender form etc. In the afternoon, Gary deposited Y's tender submission into the tender box as his office was nearby. Then, in the same afternoon, he faxed the whole photo-stated set of Y's tender submission together with a cover note to D. The cover note says nothing, yes absolutely nothing, about M, M's firm, M's resident manager Sharon DM or M's boss P. Right until the tender closed, D thought Gary was the financier of Mr. Y who is his childhood friend, doing a favour for Y who was busy.

However, soon after the tender closed, M called D to say that Gary was her husband. This was highly unusual and D asked M: Why couldn't M or Gary said so earlier or before the tender closed? M giggled that it was to avoid paying for the costs of tender packages (D took this to mean that if Gary had said he was acting for M or M's firm, M's firm would be asked by D's firm to pay fully for the 2 tender packages. M's firm would only get a 50% re-imbursement upon passing back the tender submission form duly completed by their prospect. Since there was no certainty that Y would submit a tender or be successful in his tender, M's firm decided that it was best not to reveal that Gary was doing this for M or M's firm until the tender closed. Hmmmm.)

Mr. Y did submit the tender and was successful in the tender. Upon learning that, M started to make statements about 50% of D's agency fee. D realised he had issues on hand to settle.

In mid-2005, D told M that he had received his fee and service tax would like to meet up with the principal of M's firm, P. D wanted to probe the many irregularities and illegalities in M's way of estate agency practice - e.g. the name of the signatory for M's firm is not a name found in the Lembaga's register of estate agents, no actual introduction of any prospective buyer by M or M's firm, no Standard 3.2.8 co-agency joint-inspection of properties, no obtainment of any tender submission by M's firm for D firm's submission to D's client, etc.

If such a practice was due to honest ignorance of law and M's firm was apologetic and willing to undertake 50% of the service tax risk arising then (as the service tax received then were about to be released to Custom in July 2005), D was willing to enter into a fresh fee-sharing agreement supported by service tax-risk sharing as "quid pro quo" on "without prejudice" basis. But if M's boss, P, was found to be leasing her "licence" to M and/or others to illicitly practise estate agency using the nickname Sharon DM as a cover, D would not pay M's firm a single sen.

M could not arrange for the meeting despite repeated requests from D and finally explained that M's principal P was a sleeping principal with some kind of arrangement with her resident managers. D then told M that in that case, there won't be any fee payable to M's firm. But M told D not to forget that M still had the original of the co-agency letter signed by D dated 4.2.2005 and she could easily filled in the details of the bidder and use it to claim for 50% of D's fee. D told M that this would be a fraud. M giggled and said fraud is hard to prove.

Because P never came forward to meet D, D thought M was possibly an imposter illegally using P firm's letterhead, P firm's E-number and P's personal E-number to illegally practise real estate agency. But P may very well be knowingly "leasing her REA licence" to M and others and did not want to be seen as doing so. "Owning up" as the principal at that time would also mean having to shoulder 50% service tax risk.

About 1 year later, immediately after the private caveat had been removed and the agency fee and service tax would no longer be subjected to recall by D's client, P (M's boss) suddenly wrote a letter, for the first time using P's official name, her designation as Principal and a different signature (before this, the signatory for M's firm always uses the name Sharon DM, the designation of "Resident Manager" instead of any designation more befitting the boss such as Principal, Proprietor, CEO, etc. and a different signature) claiming for 50% of D's agency fee.

In her letter, P pretended that she had not been told about agency fee having been received by D in mid-2005. But the wordings of P's letter gave her lie away because in the same letter P claimed that D had raised service tax issue with P's operative M. How could D have raised service tax issue with M if the service tax and the agency fee had not been received by D? More so, Gary (whom M subsequently claimed was her husband) had told D before that he had a close friend by the name of Michele working in the office of D's client. So, how could M and P not have known or not have been told that D had received his fee and service tax from his client in mid-2005 before P wrote her letter in July 2006 to D?

P was feigning ignorance of D having informed them (M and P) of the receipt of the agency fee and the service tax to make D appeared as dishonestly withholding information about receipt of the fee in mid-2005 from them. P needed to lie to cover up the fact that she was the one who was hiding for nearly a year to avoid shouldering any service tax risk (possibly breaching a fundamental implied term in any co-agency contract whether by words or by conduct - equal share of risks (and costs) for equal share of fees); and when all risks and potential costs disappeared after the private caveat had been removed, she suddenly appeared and feigned ignorance that the agency fee had been paid to D by D's client in mid-2005.

M went on to lie even further by testifying that M went to meet D's client (which wound down on 31.12.2005) and was told 1) that D had received the fee after the signing of the SPA (true - D already told them this) and 2) that agency fees were invariably paid by D's client after SPAs were signed (false -
No professional staff of D's client could have told M that agency fees were invariably paid by D's client after SPAs were signed because all panel agents who had closed deals for D's client could easily vouch that agency fees from D's client were not invariably paid after the signing of SPA. In fact, in another much bigger deal that D closed for the same client, the agency fee was paid many months after the signing of SPA - i.e paid only after the private caveat was removed; and in another deal transacted by D for D's client involving sale of a 2-storey terrace house in Subang Jaya, the agency fee was never paid even more than a year after the signing of the SPA because the condition precedent (delivery of vacant possession) was never fulfilled -- eventually, the successful bidder who had signed the SPA rescinded the deal and there goes also the fees).

M was cooking up false story about being told by a staff of D's client that agency fee is always paid shortly after the signing of the SPA! M was lying about her meeting with D's client because neither D's client and its successor ("Pkhas") had even once formally or informally informed or notified D about any such meeting nor asked D for any explanation. If M had indeed met D's client before it wound down on 31.12.2005, then M's boss, P, could not have in her letter in July 2006 (Exhibit P20 dated 3.7.2006 at Pg.33 of Bundle C) to D, still claimed no knowledge of the agency fee having been paid to D by D's client in mid-2005. If D's client had already informed M that agency fee had been paid to D in mid-2005, why then was P still claiming or pretending no knowledge of this in her July 2006 letter to D? Both P and M were contradicting each other because they were lying.

D knows for a fact that D's client is a highly professional body manned by highly competent and respectable staff many of whom have now become respectable corporate leaders. M was obviously doing a 'hit and run' lying act: P's lawyer only forwarded M's Witness Statement including about that meeting with D's client in the very same morning before M testified. D had no prior sufficient chance to expose M's lie because, in the same morning, D was re-examined by D's lawyer on this alleged meeting although the instruction from the learned and honourable judge was for the W. Statements to be exchanged 1 week before the trial was to be resumed on 17.12.2010. D forwarded his on 17.12.2010 and M's W.Statement was only forwarded on 18.2.2011 - the same morning that M testified and D was re-examined. On 18.2.2011, D saw for the first time (for just a few seconds), additional bundles of documents (Bundles H & I) filed by P.
P even managed to get an administrative bureaucrat MH to testify in the same morning:
1) that a letter dated 17.12.2010 bearing a statutory board's letterhead was indeed written by her in reply to P lawyer's letter dated one day earlier i.e. 16.12.2010 [in that letter she wrote that P was a registered estate agent practising under a certain E number for a certain period of time mentioned therein and that P is also known as Sharon DM in her estate agency practice] But, on cross-examination by D's lawyer, the same bureaucrat MH also confirmed that she had indeed in 2007 officially informed D's lawyer that Sharon DM was not a registered person (at all all material times mentioned in D lawyer's letter) and that if any member of public were to search the Lembaga's website that day (18.2.2011), the outcome of their searches would still be that Sharon DM was not a registered estate agent. So, what could have caused MH to say 1 thing in 2007 and then say a completely different thing in her letter 17.12.2010? MH and P being of the same colour or was it something else - 'lubricant' that causes the change?

2) that the 2 circulars (Circulars 2/2004 & 2/2006) issued by her (for the executive council of Lembaga, with the words "would require" which practitioners took them to be directives from the Lembaga to be complied with under Rule 110 of the Valuers, Appraisers & Estate Agents Rules 1986 ("VAEA Rules")) were merely circulars "to encourage" the practitioners to do the things mentioned in the circulars - What a joke! No wonder this perception: that in this profession, those who follow the law die one by one; while those who dare to defy it, 'make friend' with the right party, grow and prosper! Anyway, the material circular in this dispute is Circular 2/97 and not Circulars 2/2004 & 2/2006 - Doesn't Circular 2/97 have the force of law to be complied with under Rule 110? Wasn't P using irrelevant circulars to confuse the judge?

3) that professional real estate agency documents signed using unofficial name such as Sharon DM (which D and members of public could not trace and link officially to P whether by official searches with the Lembaga or with IC Section of the National Registration Department) are usually recognised as valid. This, coming from a party who is to govern the profession according to the law is absurd and shocking!

It is D's view that the interpretation by the bureaucrat MH goes against the intention of our Parliament in introducing a system of compulsory registration of estate agents and the introduction of Rule 102 (of VAEA Rules 1986) and Circular 2/97 to ensure that only duly registered estate agents can practise estate agency and sign professional documents related thereto. But the bureaucrat is openly testifying and opining in court that even a nickname can be used for signing agency contract! Congratulations to all those with propensity to 'lease' their 'real estate licences'!

Imagine, all registered estate agents signing professional estate agency documents using not their registered official names but their unregistered nick names which any search with the Lembaga would not link the nick names to their official names and any search with the IC Section of the NRD also could not link the nick names to the REAs. If their loosely-attached operatives abscond with client's or customer's money, how is the member of public to hold the REA concerned responsible? If their operatives commit the civil wrongs of, say, trespass or misrepresentation, how is the aggrieved party capable of suing the REAs concerned?

Would the REA concerned then willingly claim that the nick name is also hers and that she is also practising using the nick name? Why is a professional practising her profession in such a crooked way with a veil or cover when she could have and ought reasonably to have practised it straight with her registered official name? Wasn't the crooked REA using a cover to evade responsibilities and liabilities? Is she allowed to do so when clear provisions of our law seem to forbid that? Can a "close-1-eye" bureaucrat for reasons best known to her re-write the whole law meted out by our Parliament and the statutory body with delegated powers to govern the profession?

Wasn't the use of unofficial name to sign professional documents intended to be legally binding meant that P had no intention to be officially bound as the nick name cannot be officially traced and linked to P and the designation used with the nick name was also a much lower designation and the signature used was also consistently and totally different from that which she uses with her official name!

Given the dealings of M and P, if you were D, would you pay 50% of your fee to P? Would you not fight the dispute until the very end, come what may?

Stay tuned for Part 2...