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.