Co-Agency Dispute: P v. D (Part 6)

Co-Agency Dispute: P vs. D (Part 6)

(Continuing from Part 5...)

P claims in Para 4 of her Statement of Claim that on or around 16.2.2005, P successfully introduced Y as a prospective buyer of "Hartanah-hartanah tersebut" to D. But in the entire trial, P produced not a single evidence to prove her aforesaid claim. In fact, Y testified that before this trial, he didn't know P nor P's firm.

What P did during trial was to say something which she never pleaded:
1) In A30 of P's W. Statement - P claims that M was the real estate negotiator of P's firm acting under P's direction and D was aware of this. If so, why didn't P plead so in her pleading? Had P pleaded that M was her lawful negotiator and D was aware of it, both P and M would have been cross-examined on this as M did tell D - after M was asked why of all the agency firms, she joined P's firm with a sleeping principal who could not meet up with D - that she joined P's firm because P's firm pay very high commission share (much higher than the 40% allowed by our agency law) and, when asked further, M confided that she did not receive any salary, EPF and Socso contributions from P's firm. During trial, P demonstrated throughout her testimony that she knew practically nothing about what M was doing and what was happening her own firm - even on how M got to contact D, she contradicted M's testimony; how when she first started practisng estate agency, P contradicted the bureaucrat's testimony. P was obviously lying that M worked under P's direction. D asserted in his W. Statement that M was addressed by D as a negotiator in some letters simply because M held herself out to D as a negotiator of P's firm and not because M was in fact a lawful negotiator of P's firm;

2) In A31 of P's W. Statement - P claims that M informs P that Y is her contact. But evidence shows: that Y is also Gary's contact. And,issue of facts is: Was it M or Gary who introduced Y to tender for "Hartanah-hartanah tersebut" through D's firm? Where is the evidence that M introduced Y to D to do so? Didn't Y in fact testify in A4 of Y's W. Statement that "... I never met him (D)...I only knew about D's firm when I was told by M of this Court case". If M had introduced Y to D, would Y be testifying so?

All evidence - Gary's business card, D's phone bills and Gary's facsimile to D, etc. - show that it was Gary who introduced Y to bid for the properties through D's firm; and Gary at no time mentioned that he was doing all these for M, P or P's firm -- a fact confirmed by Gary's facsimile cover note in Pg. 2 of Bundle D which could easily have mentioned M, P or P's firm but it says absolutely nothing about them. Y was obviously bidding for the properties like any busy bidders who ask his close friend (in this case Gary), spouse, runners, etc. to do the preliminary due diligence for him. And, conventionally, it is not uncommon for a real estate agent like D to sell properties to buyers whom they have never met.

However, in all cases of co-agency, the law (Standard 3.2.8, etc.) is very clear: It requires joint-viewing of the properties in which the appointing agent has overall supervision and knowledge of. But Y's testimony in A3 of Y's Witness Statement clearly show that there was no viewing of the properties by Y with D's overall supervision and knowledge. M introduced and showed the properties to Y on her own volition contrary to the law (Standard 3.2.8) - that is, without D's knowledge and overall supervision.

P also fails to produce any evidence to show: that P's firm had purchased the tender packages through D's firm and/or that P's firm had obtained tender submission for the properties from any prospective bidder (including Y) as D firm's co-agent. P fails to do so because there was no such evidence in existence. There was no evidence of any introduction by M, P or P's firm of Y to D that Y tendered for the properties through D's firm! Y appeared to have left it to his close friend Gary to decide to be briefed by which panel agent and Gary chose D's firm. And, it is a fact that this Gary did not work for P's firm at all the material times.

M however testified that she was the one who directed Gary her husband to deal with Y on her behalf. But M did not reveal this to D at any time before the tender closed. Professional estate agency practice and its law also do not allow a non-registered person such as M (or even a registered person, for that matter) to direct anyone who is not in the employment of any registered estate agency firm to act for the agency. If that is allowed, then how is one to tell between bogus agency practice and bona fide agency practice? D's assertion is that if M had indeed directed Gary as claimed, that would be ultra vires and in contravention of our estate agency law.

And, if what Gary did was for M on a one-off basis as her husband, then there would be no need for Gary to give the telephone-cum-fax number of his Mom's florist shop - that would have been absolutely unnecessary. D could have been easily asked by Gary to follow-up the rest with M or M's firm - Gary's involvement was clearly not one-off. It was calculated to deceive D so that M's firm need not pay a single sen for the tender packages because right until the tender closed, Gary did not hold himself out as dealing on behalf of M, P or P's firm or Gary would have been asked to pay fully for the tender packages!

The whole dispute arises simply because there was a cheapskate registered estate agency (P's firm) trying to take advantage of a professional real estate agency (D's firm) by conducting co-agency in such a way that it (P's firm) need not share any costs (of tender packages) and any risks (of service tax); and when the risks and the costs no longer pose any issue, then the cheapskate firm stakes a claim for 50% of the agency fee of the other agency firm. Will the law be on the the side of such an unethical cheapskate estate agency firm which not only practises against the principle of fair-play and justice but also against clear provisions of our law?

Stay tuned for further reporting on the co-agency dispute...

Co-Agency Dispute: P v. D (Part 5)

Co-Agency Dispute: P vs. D (Part 5)

(Continuing from Part 4 of this post...)

In Para 1 of P's Statement of Claim, P claims for the first time that she was also known as Sharon DM in the practice of estate agency. Before she filed her Summons & Statement of Claim:
* she and her lawyers never even once claimed so;
* not a single document in which Sharon DM appeared for P's firm states that Sharon DM is also P;
* not a single document in which P appeared for P's firm states that P is also Sharon DM;
* when P appeared for the first time in the letter dated 3.7.2006, P refers to the earlier letter dated 3.1.2005 (Exhibit P15) in which Sharon DM appeared for P's firm as "our letter" and not "my letter";
* all the documents show that Sharon DM's designation is the Resident Manager while P's designation is the Principal and not a single document states that the Resident Manager is also the Principal;
* all the documents show that Sharon DM's signature is totally and consistently different from P's signature.

When P took to the Witness Stand in the year 2010, P went on to claim, also for the first time, in A18 of her Witness Statement that P's designation was also "Resident Manager E1236" (apart from being the "Principal"). Interesting, isn't?

Had the loosely-attached operatives of P's firm, say, run away with client's or customer's money; or, had P's firm been sued for a civil wrong, say, due to a misrepresentation or trespass by P's operatives, or investigated for offences (say, licence-leasing), would P be forthcoming to say that Sharon DM was also her? The designation of Resident Manager was also P's designation? And, that Sharon DM's different signature was also P's signature? On balance of probabilities, would P?

P obviously had her reasons not to allow her operatives like M and others to use her real and official name to practise estate agency. The use of the name Sharon DM (instead of P's official name) with the designation Resident Manager (instead of Principal) and a different signature was clearly calculated to allow P to disown responsibilities / liabilities in the event of civil suits and/or investigated for offences. And the use of E1236 (now known to be P's personal registration number with the Lembaga) beside the designation Resident Manager was a devious ploy calculated to enable her to claim that Sharon DM was also her when she needs to claim for fee such as in this suit: Head, she wins; tail, D and the public lose, so she thinks.

Most practitioners can vouch that by market practice, the designation of Resident Manager is for an employee-REA employed by an estate agency to run the agency and/or its branches and not a designation for the boss of the agency. Take Wang Lai Realty (sole-proprietorship) as a classic example: Aren't its Resident Managers the employee-Registered Estate Agents employed by it (the sole-proprietorship) to run the agency and its branches? And, the Resident Managers are not the Principal nor the sole-proprietor nor the boss of the agency (who is a Mr. James Lai). P and her ilk were obviously trying to hoodwink those not familiar with the profession by spinning new meaning for the designation of Resident Manager.

In A2 of her Witness Statement , P produced a photocopy of P's Identity Card which confirms that the name Sharon DM is not in it.

In her A4, A9 and A10 of her Witness Statement, P claims that she is also known as Sharon DM and her business associates address her as Sharon DM as well as P. Yet, in all of P's time in Court and in the Witness Stand, not a single time was P being addressed or heard being addressed by anyone including by M and/or by P's lawyers as Sharon DM!

In A12 of her Witness Statement, P claims that since her marriage to her late-husband, P added her husband's first name DM after her Christian name Sharon. Yet, the marriage certificate tendered by her in A12 shows that she was married to her late husband in 1980 (on 18.10.1980) and the Sacrament of Initiation tendered by her in A11 shows that she was only baptized with the Christian name of Sharon in 1997 (on 29/3/1997) - i.e. some 17 years (not months) after her marriage to her late husband! In all probabilities, how could she have since marriage combined her Christian name Sharon with her husband's first name DM some 17 years before her baptism with the Christian name of Sharon! P's claim must be treated with a pinch of salt.

And, right until the last day of the trial, all online searches with the Lembaga's website as well as official written search with the Lembaga (by D's lawyers) all reveal that Sharon DM was not a registered estate agent -- the exact opposite of what P claims that P was - a registered estate agent. Right until the last day of the trial, D believes that Sharon DM was either a different person or a cover used by P to allow loosely-attached operatives like M and others to illegally practise estate agency in what is known as "licence-lending or leasing".

However, on the last day of trial (18.2.2011), came a BIG surprise: P's lawyers brought an administrative bureaucrat MH (already covered in Part 1 of this post) to testify that MH did in fact sign a statutory board's letter dated 17.12.2010 (Fri) in reply to P lawyer's official enquiry dated just a day earlier (16.12.2010) in which it was stated, among others, that P was also known as Sharon DM in her practice of estate agency.  That was a belated surprise to D!

When cross-examined by D's lawyer, MH admitted that she too was the one who signed the statutory board's letter dated 28.5.2007 in which it was stated that Sharon DM is not a registered person with this Board (at all material times mentioned in the official search letter written by D's lawyer) - the complete opposite of what P claims that P was at all material times; MH also agreed with D's lawyer that if any member of the public were to search the statutory board's website that day (18.2.2011), the search results would still be the same - that is, Sharon DM is not in the statutory board's register of registered estate agents.

On the last day of trial too, a Form D dated 28.3.2005 (note this date) for application for renewal of Authority to Practise estate agency for the year 2005 suddenly surfaced to show that P filled in "Sharon DM" as her "Other Names" in the Form D for the year 2005. D's lawyer had told D earlier that when he met MH late last year with a view to calling her as a witness, MH showed D's lawyer Forms D for the years 2006, 2007 & 2008 in which P put her "Other Names" as Sharon DM. However, D, after checking his "ATP renewal file", informed D's lawyer that from the year 2006 onwards, all Forms D no longer have a space that asks for "Other Names" - this is a fact that all REAs can vouch.

D found out on 18.2.2011 that only a Form D for the year 2005 was filed (on 17.2.2011 - the day before) in Page 2 of Bundle H (Exhibit P-34) - Forms D for the years 2006 onwards were not filed! Interesting, right? What is your take on that? If year 2005 Form D was not a recent creation and was all along there since year 2005, why didn't the bureaucrat MH write in her 2007 letter to D's lawyers that Sharon DM was the "Other Name" of a REA by the name of P if all along she knows that P is also known as Sharon DM in estate agency practice? Or, did the bureaucrat just knew "recently" that P is also known as Sharon DM? Get it?

What is even more interesting is in the same Bundle H (at Page 1), an Authority to Practise ("ATP") in Form K dated 4.4.2005 (note the date) issued to the official name of P also surfaced. Apparently, this ATP was issued (presumably together with an photo-embossed ATP Card as was the usual practice) within just 7 calender days of P putting in her application for renewal of ATP! The majority of, if not all, REAs can vouch that they usually take more than a month or two to get their ATP and the ATP card after putting in their "in order" applications for ATP renewals. Anyway, the tender closing date was 17.2.2005! The written co-agency contract was alleged by P to have been formed on or around 4.1.2005 (Exhibit P-15)!

P did not produce any ATP for the year 2005 for her firm - she produced only one dated 9.5.2006 for the year 2006. She must have her reasons. Since P was the one who chose legal action, P must face legality on such issue.

What happened was: P managed to get the bureaucrat MH to issue a statement via the letter dated 17.12.2010 (already touched on earlier) confirming that that P was a registered estate agent from 1.1.2005 to 31.12.2005 under P firm's name. Is this statement from MH (which is not issued under Section 16 of the VAEA Act) capable of lawfully replacing the usual ATP (issued as required by law under S16 of the VAEA Act) as evidence of P firm's lawful authority to practise estate agency in the year 2005? Well, wait and see.


Moving on, Sections 22C(1) of the Valuers, Appraisers & Estate Agents Act 1981 ("VAEA Act") stipulates that only a person who is a registered estate agent and has been issued with an authority to practise under section 16 can...(c) undertake any work specified in Section 22B (that is, estate agency practice) and (d) be entitled to recover in any court any fees, charges or remuneration for any professional ...services rendered as an estate agent. Rule 102 of the VAEA Rules and Circular 2/97 disallow any person whose name is not registered in the Lembaga's register of estate agents to represent any registered estate agent in professional estate agency documents.

All evidence show that Sharon DM is a name not registered in the Lembaga's register of estate agents at all the material times including the last day of trial on 18.2.2011; and that no authority to practise was ever issued under Section 16 to a "Sharon DM" or "P also known as Sharon DM". As such, D's assertion is that all professional estate agency documents signed by the name Sharon DM have no legal standing whatsoever and cannot be relied on in any suit for professional estate agency fee - Exhibit P15 which P relied on was signed by a name Sharon DM with no legal competence to contract under S11 of the Contracts Act. And, that the name Sharon DM was never known by D or capable of being known by members of the public at large as P because all searches with the Lembaga as well as the IC Section of the NRD would not confirm that Sharon DM was also known as P.

Interestingly, Section 16 of the VAEA Act says that "The Registrar shall,..., issue.... an authority to practise in the form prescribed by the Board." And, Rule 21 of the VAEA Rules 1986 (on "Authority to Practise") stipulates that "... (2) All authorities to practise issued under the Act shall be signed by the President (of the Board) and the Registrar and sealed with the common seal..." And, all the ATPs produced by P were not signed by the President! What if D's ATPs were also not signed by the President? Do 2 wrongs make a right in a court of law? Isn't it time that any incompetent "loose-canon" bureaucrat who arbitrarily throws her weight around practitioner(s) who practised not in compliance with the law (such as P) be severely dealt with?

Anyway, under Sec 23 of the VAEA Act 1981, to be entitled...to claim professional estate agency fees in any Court, a person must also show that he/she practises estate agency through a registered estate agency firm as a sole-proprietor, a partner, a share-holder or director of a body corporate registered with the Lembaga or as an employee of such sole-proprietorship, partnership or body corporate. Free-lancing is not allowed -- a registered estate agent cannot practise without a registered estate agency firm.

It is D's assertion: that P has failed to provide all the necessary evidence to prove that at all the material times: whether P, P also known as Sharon DM, Sharon DM and/or P's firm had the relevant authorities to practise estate agency issued under Section 16 in the forms prescribed by the Lembaga under the relevant Rules (say, Rule 21, Rule 23, Rule 25B, Rule 25G & Rule 25 I). The two ATP forms produced by P are grossly insufficient to fully establish P's legal standing for the suit against D -- It 's D's defence: that P has not fully proven her "locus standi" under the law for her suit against D.

Para 2.2 & Para 3 of P's Statement of Claim have been covered in earlier parts of this post.

More on P's Statement of Claim and Witness Statement in the next post...

Co-Agency Dispute: P v. D (Part 4)

Co-Agency Dispute: P vs. D (continuing from Part 3...)

P based her suit against D on just one written document dated on or around 4.1.2005 (Exhibit P-15) and not on another document dated 4.2.2005 (Exhibit P-16) or on a set of documents? Wouldn't the document dated 4.2.2005 (Exhibit P-16) a better document to rely on to base her suit if it was not a blank document as at the time of P filing of her suit? D believes the document dated 4.2.2005 was still a blank document as at the time of P's filing of her suit - that was why it was not relied on and filed as a completed document in the first filing of documents!

D's reasons in his letter dated 11/7/2006 - that the document dated 4.2.2005 could not be a valid co-agency contract - must have been convincing enough for P and her ilk not to rely on it as her basis of her claim. D had, through his letter dated 11.7.2006, detailed why the document dated 4.2.2005 could not be a valid co-agency agreement and P lawyers were aware of the reasons as the whole of this letter with all its attachments were also copied to P's lawyers when D replied to P's lawyers in Nov 2006.

Anyway, P and her ilk appeared to have 2nd thought about the document dated 4.2.2005: On 4.6.2010, the document was filed with the Court for the 2nd time - this time as a completed document (Exhibit P16, Pg. 5 Bundle F). Before this, it was filed as a photo-stated incomplete document with only the signature of Sharon DM for P's firm (Exhibit P-27 at Page 4 of Bundle E).

In the second filing, this document (Exhibit P-16) is an original document bearing D firm's letterhead, the signatures of both D and Sharon DM. This time the name and particulars of the bidder Y were filled-in it (Exhibit P16, Page 5 Bundle F). Fortunately, what was filled-in was not "ETM Sdn Bhd" - the eventual buyer of the 2 lands or "Y and/or approved nominee". What was filled-in was the name of Y and his particulars! Had it been filled in otherwise, D's defence would have been much much more onerous.

In A40 of P's Witness Statement: P claims that D admits that the letter dated 4/2/2005 (Exhibit P-27) is a "co-agency letter" in paragraph 2(i) of D's letter dated 11/7/2006. P was clearly quoting a part of D's letter out of the context of the whole letter. It is like you say: "I won't pay!" and they say you admit that you have to pay because you use the word pay in your sentence. What a flawed reasoning!

If indeed D admits that the letter dated 4.2.2005 is a co-agency agreement, why didn't P then base her suit on this letter dated 4.2.2005? Or, why didn't P base her suit on a string of documents including this letter dated 4.2.2005? Instead, she base her suit on just one written document dated on or around 4th January 2005 in Para 3 of her Statement of Claim (which is Exhibit P15)? Or, better still, why didn't P base her suit on the conduct of the parties?

P and her ilk knew that to base P's suit on the document dated on or around 4.2.2005 as a completed document would have been met outright by D with the allegation of fraud and that wouldn't made them looked nice right from the very beginning - so, they avoided that; and that to base her suit on conduct of the parties would have been met by D with the defence of breach by P of a fundamental implied term of "equal fees for equal sharing of risks and costs" in any co-agency contract because P was not forthcoming for a requested meeting with D on the service tax risk for about a year.

To D, the completed document dated 4.2.2005 is in fact a document not in existence as Court's document until 4.6.2010 (Friday) - that is, 1 working day before the trial began on 7.6.2005 (Monday). To D, it was only filed as an afterthought and an attempt to grab at any straw in an increasingly sinking case against D!

P cunningly tried via A21, A22 and A40 of her Witness Statement to amend her pleading by casting the basis of her claim wilder to include this document dated 4.2.2005 when Para 3 of her Statement of Claim, clearly and without a shadow of doubt, relies on one and only one written document dated 4.1.2005 as the contractual basis of her claim.

In testimony, when cross-examined by P's lawyer, D actually reasoned that if P's claim in Para 3 of her Statement of Claim was that there was a written co-agency contract on or around 4.1.2005, then why was there a need for another co-agency letter dated 4.2.2005? P lawyer's reply was that it was because D wanted to introduce an amendment, an additional term to the earlier agreement. If so, doesn't that mean that there is no finality of terms in the earlier agreement dated on or around 4.1.2005? (And so, the written contract which P based her suit on need not be performed by both parties under Section 63 of the Contracts Act?)

D's defence on issues of facts and law, among others, are essentially that: How could there be a written co-agency contract on or around 4.1.2005 involving the 2 parcels of lands for sale by tender (as described in Para3 and Para 2.2 of P's Statement of Claim and A15 of P's Witness Statement):

1) when on or around 4.1.2005, the 2 parcels of lands were still not known or available to D and other panel agents for sale by tender yet (a marked exhibit at Page 12 Bundle E was adduced to prove this)? When features in the document itself suggest that it was not about the 2 parcels of lands - no mention of the codes of the lands, nothing on tendering process, no mention of the lands as D client's lands for sale by tender  (Exhibit P15, Pg. 2 Bundle E), singular "Land" and not plural "Lands" was used in the heading, etc.? When evidence adduced by P itself proves that M enquired about the 2 parcels of lands only towards 31.1.2005 (a marked exhibit at Pages 5-6 of Bundle B)? So, how could there be an agreement on the 2 parcels of lands even before enquiry on them?

2) when the document itself clearly shows that it was signed by a Sharon DM who was not a registered estate agent at all the material times, thereby contravening Rule 102 of the VAEA Rules, Circular 2/97, Rule 110 of the VAEA Rules; and is null and void under Sections 11 & 10 of the Contracts Act?


3) when there was no absolute and unqualified acceptance by D of the fee-sharing proposal from Sharon DM of P's firm under Section 7 of the Contracts Act?

4) when there was no evidence of acceptance, by P or any REA capable of representing P, of D's qualified acceptance or signed counter-proposal?

5) when the document itself has on its face the illegal object of trying to collect fee from party other than from P firm's own client -- in contravention of Rule 89 of the VAEA Rules, thereby rendering it null and void as a contract under Sec 24 of the Contracts Act?

6) when evidence adduced by P herself  in the form of co-agency letters dated 4.2.2005 shows that even if the document dated 4.1.2005 was about the 2 parcels of lands which D denied it was, its terms of were not finalised or need not be performed under Section 63 of the Contracts Act?

D's defence from the time he filed his "Notis Kehadiran" to the time of completion of trial has been consistent: that the document dated on or around 4.1.2005 which P based her suit on in Para 3 of her Statement of Claim, is null and void, and unenforceable as a contract.

D's case is: that P's case against D was based purely on blatant lies, cooked-up stories, irrelevant documents and an intimidating show of connections and powers; that it was a suit without any merits whatsoever; that P has not proven her legal standing under S22C(1)(d) and S23 of the VAEA Act 1981 for this suit against D; that P has no cause of action because prior to this suit, there was never any valid claims forwarded by P to D for co-agency fee; and that this suit is clearly frivolous, vexatious and an abuse of the process of the Court.

More on this dispute in Part 5...stay tuned!

Co-Agency Dispute: P v. D (Part 3)

(Continuing from Part 2...):

On P's status as at the time of filing of her Summons and her Statement of Claim ("Claim") in March 2007, P lied in Para 1 of her Statement of Claim that she was practising real estate agency business under a certain registration number for real estate agency. P herself and D too produced documents showing that the real estate agency with that registration number was no longer in existence as at March 2007 - it has stopped its real estate agency practice since 29.8.2006! In fact, P herself admitted in A6 of her Witness Statement that the real estate agency concerned has in fact ceased practised since 29.8.2006.  This is just the beginning of P's many blatant lies in P's Statement of Claim and Witness Statement.

In Para 3 of her Statement of Claim, P based her suit on one written document dated on or around 4.1.2005 (marked as Exhibit P15) - and not on a string of documents nor conduct of parties - as the contract, the written co-agency contract, on "Hartanah-hartanah tersebut" which she alleges that D had breached. "Hartanah-hartanah tersebut" is defined or described in Para 2.2 of her Statement of Claim and in A15 of P's Witness Statement as the 2 parcels of lands made available for sale by tender by D's client then.


In the same A15 of P's Witness Statement, P was also spinning ridiculous interpretations of Exhibit P15 to make it fit what Standard 4.3.3 say about co-agency or co-broking which P was about to show the Court.

In her A15, P spins the story that Exhibit P15 is a co-agency agreement in which D enlisted her service as an agent and she accepted D's enlistment when Exhibit P15, as D pointed out in D's Witness Statement,  in fact shows that it was P's firm (through its resident manager Sharon DM) which was enlisting D service as a co-agent; and it was D who accepted the enlistment with an amendment to the original proposal and not the other way around as claimed by P in Para 3 and in A15 of P's Witness Statement.

What is interesting is: In A20 of P's Witness Statement, P contradicts her own claim in A15 of her Witness Statement and in Para 3 of her Statement of Claim because in A20, P says the the complete opposite of what she asserts in A15 and in Para 3: This time (in A20), P says it was D's firm which did the acceptance on 4.1.2005 with an added phrase as an endorsement of D firm's acceptance (a hitherto-unheard-of new concept on "endorsement of acceptance" in contract law). D considers the counter-signed added phrase as D's or D firm's qualified acceptance and/or counter-proposal.

In A16, P then adduced a document known as Standard No. 4 of the Malaysian Estate Agency Standards 1999 (marked P14) and highlighted Standard 4.3.3 which reads: "...the Board is aware of co-agency or co-broking practice between estate agents. This is where the appointed estate agent enlists the services of another estate agent(s) and shares the agency fees accordingly. In such an instance the principal is usually not a party to the arrangement..." to justify or echo her cooked-up story in A15 and alluded that in Exhibit P15 there was a co-agency arrangement  which is approved by the Board!

When one examines Exhibit P15, one will find that it is a document from P's firm bearing its letterhead and signed by its resident manager Sharon Desmond in which it asks D to arrange for viewing by its interested client of a "Land at Jln Page, Ukay Heights" with a space for D to make written acceptance. It clearly shows D making a qualified acceptance amounting to a signed counter-proposal. P blatantly claims in both Para 3 of her Claim and in A15 of her Witness Statement that D was the one making enlistment of her service and she was the one making acceptance of D's enlistment with the sole aim to make Exhibit P15 fit the description of co-agency or co-broking practice as described in Standard 4.3.3. What a spin job to try to get what she claims.

P claims (in Paras 3 and 2.2 of her Claim and in A15 of her Witness Statement) that Exhibit P15 was about the 2 parcels of lands in the tender list of D's client when in fact on or around 4.1.2005 - i.e. before 10.1.2005, both parcels of lands were still not known by D or other panel agents to be in the tender list yet. It was on or shortly after 10.1.2005 that these 2 parcels of lands were known by D and other panel agents to be available for sale by tender. Before that, they were still not in the tender list (contrary to P's claim in Paras 3 and 2.2 of her Claim and in A15 of her Witness Statement). D adduced a circular dated 10.1.2005 from his client as evidence which P's lawyer tried to block its admissibility. Nevertheless, the learned judge marked the document as evidence on its date. 

There are many other features in Exhibit P15 which confirm that Exhibit P15 was not about the 2 parcels of lands for sale by tender. For examples, it does specifically identify the 2 parcels by its codes - its merely specifies "Land at Jln Page UK Heights"; it contains no word or information at all on tendering process or property for sale by tender by D's client. It uses the singular word "Land" and not plural word "Lands".

In fact, M's sworn testimony proves that the lands that M showed to Y without D's knowledge and supervision were different from the land referred to in Exhibit P-15 because for the former, M did not ask for D's help or involvement in the viewing of the lands by someone claimed to be Y during trial whereas for the latter land, M was clearly in Exhibit P-15 requesting for D's help to arrange for its viewing by M firm's undisclosed interested client.

As can be seen in Part 1 of this post, Exhibit P15 was about a piece of bungalow land put up for sale by private treaty by a Mr. Wong for its Vendor-Owner who bought it in 8th Danaharta Open Tender in 2003. Before trial, D did suggest to his lawyer to adduce Mr. Wong's call card as evidence. D's lawyer however felt that it was not necessary to do so.

P's lawyer asserts in trial that unless more documents (presumably listing documents) are produced by D, Exhibit P15 must be about the 2 parcels of lands for sale by tender since its heading carries the same street name (Jln Page) and locality (Ukay Heights) as the 2 parcels of lands. What other documents can D possibly produce when M did not follow-up and no file was created on the private treaty land?

Is D to defend himself beyond a shadow of doubt? Is D guilty unless he proves otherwise? Isn't P the Plaintiff who sues suppose to prove her claims rather than the other way around? Has P proven that "Land at Jln Page UK Heights" in the heading of Exhibit P15 really refer to the 2 parcels of lands for sale by tender?

The truth cannot be denied: On or around 4.1.2005 before 10.1.2005, the 2 parcels of lands were still not known and available for sale by tender by D as alleged by P because D's client has not informed D about their availability for sale by tender yet.

More on Exhibit P15 in Part 4...stay tuned.