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

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

(Continuing from Part 6...). This is a dispute in which:

1. P alleges that there was a co-agency or co-broking agreement in a written document dated on or around 4.1.2005 (Exhibit P15) involving 2 parcels of lands for sale by tender (Paras 3 & 2.2 of P's Statement of Claim and A15 of P's Witness Statement) BUT D had adduced evidence:
1. that on or around 4.1.2005, the 2 parcels of lands were not known or available by D for sale by tender yet (Exhibit P-41 at Page 12 Bundle E, etc);
2. that many elements for the formation of a valid contract are absent in Exhibit P-15, namely:
1. no valid acceptance of D's counter proposal;
2. signatory for P's firm is not competent under Sec 11 of the Contracts Act to contract for P or P's firm because Sharon DM is not a name in the register of estate agents of the Lembaga and is as such expressly disqualified by Rule 102(3) of the VAEA Rules to represent any estate agent or firm in any professional estate agency documents including co-agency agreement on fees (see also Circular 2/97);
3. Exhibit P15 has on its face the unlawful object of P's firm attempting to collect fee from party other than its client thereby contravening Rule 89 of the VAEA Rules 1986 - rendering Exhibit P15 void as a contract under Sec 24 of the Contracts Act 1950;
4. the heading and wordings of Exhibit P15 are so vague and ambiguous that there is clearly no 'consensus ad idem' or mutual consent on the property referred to and on the terms of the alleged agreement; 
5. the presence of Exhibit P16 meant that Exhibit P15 need not be performed by either party under Sec 63 of the Contracts Act.
2. P alleges that on or around 16.2.2005, P has successfully introduced a buyer Y to the defendant D to buy the 2 parcels of lands (Para 4 of P's Statement of Claim) BUT undeniable evidence before the Court, among others, is:
1. that P has never met nor spoken with D;
2. P's operative M has merely spoken with D but has never informed D about Y the bidder for the 2 parcels of lands; M has never met with D; before the tender closed, M never informed D that Gary was her husband which resulted in D never asked P's firm to pay for the tender packages which were given to Gary FOC because Gary also did not at any time before the tender closed revealed that he was the husband of M;
3. M had on her own without D's knowledge and consent showed the 2 parcels of lands to Y;
4. Y had never met D also;
5. P's firm has never bought nor paid for nor share with D's firm the costs of any tender packages for the 2 parcels of lands;
6. no one from P's firm has ever obtained any tender submission from any party including Y for D firm's acknowledgment and submission;
7. Std 3.2.8 co-agency inspection with D knowledge and overall supervision never took place...;
8. when D informed M in mid-2005 that he had received the fees and service tax and would like to meet up with P, P did not come out to identify herself in anyway including as also known as Sharon DM the signatory for P's firms all along;
9. it was only in July 2006 - apparently after all private caveats on the 2 parcels of lands had been  removed with the fees and service tax no longer facing any risks of being recalled by D's client - that P appeared for the first time using her official name P, her designation Principal and her signature to stake 50% claim on D's fees;
10. likelihood of impersonation before P appeared, risks of service tax and fees recall before private caveats were finally removed from the 2 lands, etc. - are real and legitimate issues existing during the material times but were only non-issues after P appeared and the private caveats were removed. (P's lawyer who was very prolix in his submission kept harping on the facts that impersonation and fulfillment of conditions-precedent are no longer issues, therefore D must pay - in other words, when there were risks, D is to shoulder all the risks (and costs too) and P avoid and evade them by hiding under the unofficial name Sharon DM BUT when all the risks disappeared, P appeared under her official name and claimed 50% of D's fees - head she wins, tail, D loses!)

3. P alleges that as at the time of filing of Summons and Statement of Claim (in March 2007), P was practising estate agency under a registration number (Para 1 of P's Statement of Claim) BUT undeniable evidence before the Court is that the registration number referred to belonged to the firm which has ceased practice and existence on 29.8.2006 - i.e. more than half a year before P's filing of her suit!

4. Prior to P's suit, P had never forwarded any valid demands for co-agency fee even if there was a valid co-agency agreement which D denies there was because the 1st Letter of Demand (LOD) from P's firm relied on an Invoice (No.00058) which has blatant illegalities on its face and the 2nd LOD was also invalid because that letter from P's lawyer in Nov. 2006 claims to act for P's firm which clearly no longer existed since 29.8.2006.

5. P alleges that D was not straight forward. But D felt that P was the one using and abusing the legal process to make all kinds of unprintable and unsubstantiated scurrilous attacks and character assassination on D -- aiming to destroy D's credibility BUT overwhelming evidence before the Court is:

1. that P's lawyer CWC attempted to suppress D's material evidence that D was dealing only with Gary and never with any one from P's firm in respect of the tender submission by Y the bidder: Pgs 2 ~ 7 of Bundle D were material evidence forwarded by D's lawyer to P's lawyer for filing way back in early 2008. The top part of every page of this 6-pg document show that they were all forwarded by Gary to D and not by P's firm and that the entire document (including Gary's cover note) do not mention any thing about P, M, P's firm or anyone from P's firm. But what was bundled and filed by P's lawyer CWC in pgs 27 ~ 31 of Bundle C on 14 Jan 2009 were different - only 1 page of D's document was included (pg. 2 of Bundle D) - the rest were replaced with documents of unknown origin which are capable of misleading the judge as the top parts of these pages (of unknown origin) suggest that they came from P's firm. It took D's lawyers many phone calls, at least 4 letters (12.10.09, 13.1.2010, 18.3.2010, 17.5.2010) and D telling D's lawyer that D would complain to the judge about the matter that P's lawyer CWC only filed the entire correct documents as pgs. 2 ~ 7 of Bundle D on 4.6.2010 (Fri) - just 1 working day before the trial began on 7.6.2010 (Mon). D tried to highlight this to the judge when he took to the witness stand in 2011 but was interrupted half-way by his own lawyer - so much about loyalty and absolute fidelity of a professional to his client. Both lawyers were still socialising with each other as they 'fought' the case...
2. that the plaintiff P had not been straight in her estate agency practice because she practised by not using her registered official name but under the cover of an unofficial name Sharon DM (which was at no time stated to be also P), a lower designation (Resident Manager) and a consistently different signature;
3. that P also attempted to adduce a false document (Exhibit P26 at Page14 Bundle F) to deceive the judge that P's firm had registered M as its negotiator when that document clearly shows it was another firm which did so in the year 2010!;
4. P feigned inability to read figures when P is a real estate agent who constantly deal with figures. This happened after P discovered 4 frivolous errors in P's figures of claims in the Summons and Statement of Claims and applied for D's consent to have them corrected on grounds of typo error. D magnanimously agreed to the amendments but whose kindness was repaid with hurtful scurrilous attacks and character-assassination by P's lawyer who was grabbing at any straw;
5. P demonstrated practically zero knowledge of what was happening in the alleged transaction before the Court - P categorically states in her Jawapan ('Statement of Reply') that she had no knowledge of Gary's involvement in the alleged transaction, yet M testified under oath that M directed Gary her husband Gary to be involved in the transaction, So who is the boss here - P or M? P being the REA should be the one directing and supervising M the non-REA, yet M was practising as she likes without P's knowledge nor close supervision or direction: Wasn't this the hallmark of "licence-leasing"?

6. Lawyers for both sides displayed contrasting styles: with D's lawyer confining the trial and submissions coolly to pertinent facts and issues of law while P's lawyers grabbing at any straw, resorting to all kinds of gimmicks and spinning all kinds of stories trying to win at all costs. While D's side avoid troubling innocent people as witnesses just to respond to a frivolous and vexatious suit, P's sides has no hesitation displaying connections and engineering perception with numbers' game. Interesting co-agency dispute indeed!

7. On legal fees for this Sessions Court case: From an original quotations of RM3 ~ 4k, the lowest among the quotations given by a few lawyers [including Penang's Lim Eng Heng & Lim San Keow's lawyer and their KL lawyer friend Mr. Chong with a law-firm at Damansara Ave (quoting RM6~7K), etc], D's lawyer eventually charged D about triple the original quotation:

• RM2000 on 27.5.07 (paid via EBB Cheque #006887) as deposit;
• RM4763.40 on 2.2.09 (paid viaEBB #000087) as fees; plus,
• RM6033.40 (deposit included) on 1.4.2011.

D obviously thought that it would be cheaper to engage a lawyer (said to be familiar with estate agency law) with a very humble office than to engage lawyers (unfamiliar with estate agency law) but with a posh office. You would be surprised when all the bills come to you - the final total was much higher than that quoted even by top-notch lawyers!

When lawyers postpone your case due to them having too many cases to attend to on the same day, why is it that you have to pay for their postponements - attendance fees, meals, etc. - to allow them to earn more from the other cases. And during the series of postponement, your life hung in the air - nothing much can be achieved - your incomes suffer, your life got affected! If the postponements were requested by the client (say, sickness, travel, etc.), charging the client would be fair but not so when the postponements were to allow the lawyers to attend to other cases.

Another thing about court trial D discovered is this: With this KPI (Key Performance Index) thing going on, the judge may allow only 1 side to read their witness statements in the open court and the other side not allowed to do so at all. In this case, P and her 3 witnesses got to read their Witness Statements and made corrections when they spotted errors on them whereas D did not get the chance to do so as that would mean another day of open trial....

D would have preferred the same right to do so as the copies of Witness Statements he was asked to sign in the Witness Stand, only a copy of which was given to him to go through in the same morning of the final day of trial. Ideally, all copies that he has to sign have to be given to him to go through first to ensure that they are all identical and none has any errors on them. This procedural weakness must be tightened to ensure that it leaves no rooms for exploitation by rogue lawyers and the corrupted...A legal case should be decided strictly on truth, justice and the rule of law and NEVER on public relations - which side has more people or witnesses and speedy perception of story from only 1 side!

The outcome of this case?...You'd know in due course...OMG...that's probably the end! What a life!

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.

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.

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...