Singham Sulaiman Sdn Bhd[a]

- vs -

Berapit Development Sdn Bhd

Judgment

FY Chin, J

1. This is an appeal by Berapit Development Sdn Bhd (the defendant) from the decision of the Senior Assistant Registrar (SAR). By that decision the SAR allowed an application of Singham Sulaiman Sdn Bhd (the plaintiff) for summary judgment under Order 14 of the Rules of the High Court 1980 (RHC). The sole question before me, as it was before the SAR, is: does the defendant in the action show a triable issue by way of defence to the claim of the plaintiff? The facts of the case are substantially admitted.

2. Berapit Development Sdn Bhd (the defendant) was, at all material times, the owner of a multi-storey building known as Menara Berapit (the property), while Singham Sulaiman Sdn Bhd (the plaintiff) an estate agency trading in the name of Jones Lang Wootton.

3. On June 14, 1995, the executive director, one Richard Fong of the defendant wrote a letter to one Sulaiman Mustapha of Jones Lang Wootton, the plaintiff herein appointing the latter as its agent to sell its property. In the letter defendant agreed to pay brokerage commission as follows:

   Please be informed that upon successful introduction of sale of the property, you shall be paid a total commission of 1.5% ...

4. In the same letter Richard Fong informed the plaintiff to register with the defendant the names of its clients to whom the plaintiff had introduced the property, to avoid any misunderstanding. According to the plaintiff, it had introduced the property to three interested parties, including Credit Guarantee Corporation (M) Bhd (CGCM), to whom the plaintiff did so by a letter dated July 3, 1995 and addressed it to one Johar Mohd Nor (En Johar) of CGCM. On the same day, viz. July 3, 1995, for the purpose of registration, the plaintiff also, by letter, informed Richard Fong of the defendant that they had introduced the property to CGCM.

5. Following that, the plaintiff sent two letters to CGCM giving the latter information regarding the property and also views on other properties to help compare and decide on the purchase. On August 14, 1995, the said Richard Fong sent to the plaintiff copies of floor plan with particulars of the building and advised that the same would be completed by October 1996 to enable the plaintiff to keep informed CGCM. The events that followed are important, but fortunately, the contemporaneous documents will help throw light on them.

6. The plaintiff exhibited a copy of the minutes of a meeting of the defendant held on December 10, 1996 regarding the claim of the plaintiff. I find that its reproduction is necessary:

   MEETING AT GLOMAC BUSINESS CENTRE, KELANA JAYA Present: 1 Mr. Richard Foong Glomac 2 Albert Phang Glomac 3 Sulaiman Mustafa JLW 4 Kuljeet Singh JLW 5 Gerry Khoo JLW Subject: Sale of Menara Berapit, Kelana Jaya Date & Time: 10 December 1996, 3.00 pm Discussion ensued on our point of contention that JLW is claiming rights on the commission on the sale of Menara Berapit to CGC. JLW's stand that the purchaser was introduced to the property by letter and other related correspondence which introduction was made known to Mr. Richard Foong via a letter dated more than a year ago. Mr. Foong admitted he forgot about it as it was that long ago and as such when another agent brought the buyer to him he accepted the offer not realising that JLW was the initial introducer of the buyer. Examples of owners honouring our role as selling agents even after a lapse of time given to Mr. Foong from which Mr. Foong proceeded to say that to him a selling agent must do more than merely introducing a buyer. At this point, Encik Sulaiman says that perhaps an arbitrator like a court would be used to determine JLW's role as the legitimate introducer of the buyer, CGC, to which Mr. Foong tacitly agreed. After much discussion thereafter, Mr. Foong says he has to honour the role of the latest agent provided JLW can justify its role as the selling agents. The meeting ended at 4.30 pm.

7. Now, to put the events in their chronology as briefly as I can. The defendant was anxious to dispose of its property. So, even before its completion, expecting to be in October 1996, it started to look for buyers. In the event, on June 14, 1995, its Executive Director, the said Richard Fong appointed the plaintiff as its estate agent to help dispose of the property, as observed earlier. For this purpose, the appointment was never withdrawn.

8. Exactly eleven months later, on May 14, 1996, this time round, the defendant's marketing manager, one Albert Phang, gave a similar appointment letter to one Rasma Holdings Sdn Bhd (Rasma Holdings), another estate agency for the same purpose. This appointment letter of May 14, 1996 was particularly brought to the attention of Raja Nong Chik, a director of Rasma Holdings. From the contemporaneous documents exhibited, Rasma Holdings by a letter dated July 3, 1996 informed the defendant that their client, namely, CGCM, had agreed to buy the property at the price offered.

9. There was another letter of the same day i.e. dated July 3, 1996, from CGCM to Richard Fong confirming and accepting the price at RM44 million without, however, mentioning as to who the introducer was. Eventually, Albert Phang sent the draft sale and purchase agreement to Rasma Holdings, but not to CGCM. The deal was thereafter closed successfully and the brokerage commission, as available from the records, amounting to RM880,000, was paid to and acknowledged receipt by a company known as Rasma Corporation Sdn Bhd, but not Rasma Holdings Sdn Bhd. Hence the action.

10. Counsel for the defendant raised two issues before me for consideration. The first issue is one of delay in the Order 14 application for summary judgment. If the objection is successful, then I do not have to consider anything more, but to direct the case to go for full trial. I give preference to the objection. The facts are as follows. The writ was issued on September 10, 1997. Memorandum of appearance and also statement of defence were filed on December 5, 1997. Subsequent thereto, on April 8, 1998, the plaintiff applied in chambers for amendment to correct the name of the buyer concerned. Thereafter, again, on October 14, 1998 the plaintiff made another application in chambers for extension of time to file and serve the amended pleadings. The Order 14 application was made on January 26, 1999.

11. In this connection, the recent case of the Court of Appeal of Perkapalan Shamelin Jaya Sdn Bhd v Alpine Bulk Transport New York [1998] 1 AMR 258 was referred to. The Court of Appeal has stated clearly that there is nothing to suggest that an application for summary judgment may be defeated solely on the ground that there has been a delay in moving the court. It is now trite law, that objection will not be upheld solely on the ground of delay. In all these applications, the courts have invariably also taken into consideration other factors, including merits; whether there is real defence disclosed or bona fide triable issues raised. It may well be a public policy that in clear-cut cases they ought to be disposed of summarily, rather than wasting time and money by postponing the issues, thus, the backlog of cases.

12. It is really not necessary for me to examine all of the cases cited as each case depended on its own facts. In the instant case, considering the amendments made and allowed by the court as late as October 14, 1998, on that score alone, the Order 14 application made on January 26, 1999 is not inordinate or without explanation. The objection is dismissed.

13. The second issue is on merit. In other words is there any triable issue. First of all, in Tong Lee Hua v Yong Kah Chin [1979] 1 MLJ 233 FC, the Federal Court had to consider the same question of whether the broker was entitled to the commission which was founded on an expressed promise to pay "upon the sale being successful". The Federal Court held that that note was a clear and unqualified undertaking to pay brokerage in the event of the defendant successfully obtaining the property in question. In passing I note that the promise was given on November 6, 1975, but only on June 23, 1977 the transfers were registered, a lapse of more than 1½ years. The sale was therefore successful. In Chew Teng Cheong v Pang Choon Kong [1981] 1 MLJ 298 FC, also a case involving a claim for brokerage commission, the same court observed that in such a case it was a matter of strict construction of the contract between the parties. Now, to revert to the instant case. The appointment letter talked of "successful introduction of sale".

14. In my view, it means an introduction that brings about a successful sale. The plaintiff introduced the property to CGCM and had CGCM registered with the defendant as such. The property was eventually purchased by CGCM. The sale is therefore successful. The defendant also admitted at the meeting held on December 10, 1996 that the plaintiff was the initial introducer of the buyer. On a strict construction of the contract, the plaintiff is entitled to the commission claimed.

15. As a second argument, counsel for the defendant submitted that the sale was not through the effort of the plaintiff. It was, as submitted, the effort of Rasma Holdings and they had been paid. To use the exact words as appeared in the minutes, the plaintiff must do more than merely introducing a buyer. In Chew Teng Cheong (supra), the Federal Court held that:

    'The effectiveness of the agent's work is a matter of inference from the evidence' per McGregor J in Sushames v Camming. Where the agent can show that some act of his was the causa causans of the transaction (Tribe v Taylor) or was an efficient cause of the sale (Millar v Radford), he is entitled to his agreed remuneration.

16. If I were wrong in my view on the strict construction of the contract, as held earlier, I now proceed to consider the affidavit evidence before me to determine the effectiveness or otherwise of the plaintiff. It is pertinent to note that, from the record of proceedings provided, the plaintiff had already informed the defendant the name of CGCM being introduced to the property as early as July 3, 1995. The minutes of the board meeting of the defendant held on December 10, 1996, also confirmed this fact. But what had happened is the said Richard Fong had completely forgotten about the plaintiff being the initial introducer of CGCM, the buyer.

17. From the plaintiffs exhibits, CGCM, the buyer was undoubtedly supplied directly by the plaintiff the necessary plans to the property long before its completion. They included particulars and specifications such as the number of car parks available, the breakdown of each level and the sizes, just to mention a couple. In all probability, CGCM would have carried out investigations and inspections of the property. To buy a complex building at a price of RM44 million, still at the construction stage, such as the property here, will certainly take time, even assuming on cash term, meaning without getting involved in applications for loan facilities from financial institution to finance the purchase, thus time consuming. There must have been board meetings to discuss the various aspects before acquiring the property. I have no doubt that in so doing CGCM must have made use of the materials pertaining to the property supplied through the effort of the plaintiff.

18. On the other hand, no evidence had been adduced to show whether Rasma Holdings was also required to register interested buyers and neither any evidence to show that Rasma Holdings did register any interested buyer. From the records as provided, Rasma Holdings was appointed as the agent on May 14, 1996 to sell the property worth RM44 million and the entire deal was closed on July 3, 1996, in a matter of hardly two months.

19. There is yet another pertinent matter that needs mention. To a point raised by Richard Fong that there was a period of non-communication between the parties herein and no offer from CGCM received, the answer is very telling. ln his affidavit (Encl 11), on behalf of the plaintiff, the deponent explained that all communication and contact were done through to En Johar, the general manager of CGCM. Sometime in April 1996 En Johar took three months' leave for his 'Haj'. During this period, plaintiff lost contact with him completely.

20. In his submission, counsel for the defendant informed the court that another gentleman, one Hj Mohd ldris was the CEO of CGCM. Clearly, someone had followed the lead in the absence of En Johar and taken the advantage of the situation. Be that as it may, but for the services rendered by the plaintiff introducing the property to CGCM, then in supplying the necessary information regarding the property at the material, times the decision to purchase the property could not have been made in such a short time in less than two months. I am also of the view that the forgetfulness of Richard Fong, however genuine, cannot deprive the plaintiff of the entitlement of the remuneration in the circumstances.

21. For reasons stated above, the defendant has failed to raise a triable issue to the claim or for other reason there ought to be a trial of the claim.

22. There will be judgment for the plaintiff with costs.

Cases

Perkapalan Shamelin Jaya Sdn Bhd v Alpine Bulk Transport New York [1998] 1 AMR 258; Chew Teng Cheong v Pang Choon Kong [1981] 1 MLJ 298 FC; Tong Lee Hua v Yong Kah Chin [1979] 1 MLJ 233 FC

Legislations

Rules of the High Court 1980: Ord. 14

Representation

CS Kumar and KY Sim (YM Chin & Lee) for Defendant

Roy Rajasingham and Mary Ann (RR Singham) for Plaintiff

Notes:-

[a] trading as Jones Lang Wotton

This decision is also reported at [2000] 4 AMR 4428