 Introduction
Preamble
Article 1 — General principles
Article 2 — Titles for arbitral awards
Termination of proceedings without a ruling on the merits d) In certain situations, a final award can put an end to the proceedings without a ruling on the merits. For example, in cases where the arbitrators conclude that they do not have jurisdiction20 or where the subject matter of the proceedings has ceased to exist or where the proceedings have been terminated because the parties have failed to provide security for costs.21
Article 3 — Deliberations and votingConduct of the deliberations
Article 4 — Form and content of awards
Awards should also contain the following essential elements:
a summary of the issues and the respective positions of the parties;an analysis of the arbitrators’ findings as to the facts and application of the law to these facts; and
Article 5 — Effect of a final awardThe arbitrators’ mandate is terminated when the final award has been rendered subject to power:
ConclusionArbitral awards are of great practical importance because they have a direct legal effect on the parties to the dispute and may be enforced under the New York Convention. While there is no prescribed style and form that arbitrators should follow when drafting awards, they should ensure that their award complies with the minimum requirements as to the form and substance laid down in the arbitration agreement, including any arbitration rules and/or the lex arbitri, and the New York Convention. To disregard them could create difficulties in enforcing the award or invalidate it.
0 Comments
 AWARD WRITING has always been the final limb to any arbitration course that drilled upon the arbitrator the ability to produce an award that is FBE:
THE GOLDEN RULE OF LAW JPNwhich stands for:
RECOMMENDATION FROM CIArb
PORTION OF AN AWARDAn AWARD is fundamentally comprise of 2 parts:
1.0 FORMALITIES
2.0 INTRODUCTION
3.0 FINDINGS AND REASONS
4.0 AWARD
IN THE MATTER OF THE ARBITRATION ACT 2005 and |
STAGE II | The following are extracts from your Notebook which you have highlighted as of importance to you. There is of course a lot more than this but you have weeded it out. |
EXTRACTS FROM THE ARBITRATOR'S NOTE BOOK
Although pursuant to the agreed Directions, only witnesses whose written statements had been served 14 days before the hearing were to be allowed to give evidence, 1 was asked by the Claimant to allow evidence by En.Mohd.Hassan who had not served a statement. I was informed that En. Hassan had come to the hearing after service on him of a subpoena_ He was a former employee of the Respondent and did not give evidence willingly.
The Respondent's counsel opposed the Claimant's application and demanded at least an outline of what En.Hassan would say. Counsel for the Claimant said that this was not possible: he did not know what En.Hassan would say. After argument for about half an hour, the Respondent's counsel agreed that the evidence should be given 'de bene esse' and that I should indicate in my Award how much weight should be given to En.Hassan's evidence.
• De bene esse means to act provisionally or in anticipation of a future occasion: to take evidence for future use while it is available'.
The Respondent's counsel opposed the Claimant's application and demanded at least an outline of what En.Hassan would say. Counsel for the Claimant said that this was not possible: he did not know what En.Hassan would say. After argument for about half an hour, the Respondent's counsel agreed that the evidence should be given 'de bene esse' and that I should indicate in my Award how much weight should be given to En.Hassan's evidence.
• De bene esse means to act provisionally or in anticipation of a future occasion: to take evidence for future use while it is available'.
In his opening speech for the Claimant, Mr Zakaria laid great stress on fitness for purpose. The Respondent had been a firm specialising in design matters and held themselves out as experts in that respect. They had been told of the purpose to which the rooms would be put. Proof of their breach of the implied terms of their contract was the distress to which the participants of the first arbitration had been put.
In cross examination Mr Fairuz was less than wholly convincing that he had spelled out the Claimant's requirements in his meetings with Mr Ghani. Mr Fairuz obviously had a good idea of the atmosphere at an arbitration meeting. However, it was doubtful if he had conveyed this to Mr.Ghani.
The size of table in the arbitration room was a case in point. While it was clear that he had made known the requirement for twelve chairs at the table, it appeared unlikely that he had made known the amount of space at the table needed to accommodate plans and documents. He was unable to say whether any dimensions for the table had been discussed.
At the partners' meeting the Respondent's presentation consisted only of a board about 600 mm square on which were stuck tiny samples of the carpet, curtains, chair fabric and wallpapers, There was a small photograph of a chair on the board and a slither of plywood veneer to show the wood to be used on the table. Mr Fairuz was unable (in cross-examination) to explain why the two junior partners (out of ten partners at the meeting) had so much influence on the day.
He was unable to throw any light on the discussions following the adjournment of the arbitration. In particular he seemed to be evasive when 'asked if there was any agreement that T.Kassim Interior Designs Ltd should be paid for the replacement table or wallpaper.
Fn Mohd.Hassan said that he had been T.Kassim's buyer at the time of this contract When the budget price had to be reduced below RM 30.000 plus Govt tax. He and Ghani had decided to purchase a smaller table for the main arbitration room than had been intended. There was a particular table which they could purchase economically which would seat twelve although they knew at the time that seating arrangements would be tight.
The new table was 300 mm shorter than the original choice. The wallpaper for the waiting-room was used because they had a surplus stock from another job (an Indian restaurant as it happened). As to the fleur-de-lys paper, he had known problems with eye-strain on other jobs. Where used in large spaces there had been no trouble, but they had been asked to remove it from the rooms where hotels had put on training courses. Cross-examined on this point he was unable to say at which hotel this had occurred.
The size of table in the arbitration room was a case in point. While it was clear that he had made known the requirement for twelve chairs at the table, it appeared unlikely that he had made known the amount of space at the table needed to accommodate plans and documents. He was unable to say whether any dimensions for the table had been discussed.
At the partners' meeting the Respondent's presentation consisted only of a board about 600 mm square on which were stuck tiny samples of the carpet, curtains, chair fabric and wallpapers, There was a small photograph of a chair on the board and a slither of plywood veneer to show the wood to be used on the table. Mr Fairuz was unable (in cross-examination) to explain why the two junior partners (out of ten partners at the meeting) had so much influence on the day.
He was unable to throw any light on the discussions following the adjournment of the arbitration. In particular he seemed to be evasive when 'asked if there was any agreement that T.Kassim Interior Designs Ltd should be paid for the replacement table or wallpaper.
Fn Mohd.Hassan said that he had been T.Kassim's buyer at the time of this contract When the budget price had to be reduced below RM 30.000 plus Govt tax. He and Ghani had decided to purchase a smaller table for the main arbitration room than had been intended. There was a particular table which they could purchase economically which would seat twelve although they knew at the time that seating arrangements would be tight.
The new table was 300 mm shorter than the original choice. The wallpaper for the waiting-room was used because they had a surplus stock from another job (an Indian restaurant as it happened). As to the fleur-de-lys paper, he had known problems with eye-strain on other jobs. Where used in large spaces there had been no trouble, but they had been asked to remove it from the rooms where hotels had put on training courses. Cross-examined on this point he was unable to say at which hotel this had occurred.
Ghani said that at the first meeting he had shown Fairuz photographs of completed schemes carried out by his company_ Some of these had used the wallpapers subsequently adopted for this project, He recalled that he had also taken some brochures of tables although he was unable to say whether they were tables which were then specified. He had shown Fairuz samples of carpet but not wallpaper or curtains.
In his closing speech Mr-FY Chan for the Respondent, said that everything that had been supplied was with the express approval of the Claimant. The question of the design of the wallpapers was a matter of subjective judgment. His clients had made recommendations only; it was impossible for the decorators to look into the minds of the Claimant company.
Fitness for purpose was not a real issue here_ This was not a case such as IBA v & B/CC. where the Respondent knew the purpose for which the works were required. Here there was no specification as such. While the Respondents were experienced designers, their skill was limited to aesthetic assessment. There was no complaint that the wallpapers were unattractive; only that they did not measure up to the Claimant's expectations of an image which only they knew they sought to attain. There was no warranty nor could there be in law, as to fitness for purpose. This was not a case of defective material, nor could it be said that the work had been carried out negligently. Nor was there any misrepresentation or mis-statement as in the 18A case.
As to the losses said to have been incurred, no-one could have foreseen the effect of visual images on a commercial enterprise. The procedure in arbitration was apparently unusual. It was not as though the Claimant had instructed the Respondents to design a court-room, nor was it clear that an arbitrator had to be clothed with some special image which was remote from that of a judge. A judge relied on his position (and perhaps his wig and robes) to convey the impression of authority. A judge did not rely on the colour of the wallpaper in his rooms: and the Respondents could not be expected to second guess any such effect..; It followed that it was not necessary to hold up or delay the arbitration proceedings. The Claimant should have been alive to the possibility of any physical reaction to the surrounding ambience and should have instructed the Respondent accordingly. Any damage which followed was too remote. It could not have been foreseen by the Respondents, nor, In any case, did the Claimant take any steps to mitigate any losses which might have been actually incurred. Accordingly the claim had no real foundation and the arbitrator was invited to dismiss it
Fitness for purpose was not a real issue here_ This was not a case such as IBA v & B/CC. where the Respondent knew the purpose for which the works were required. Here there was no specification as such. While the Respondents were experienced designers, their skill was limited to aesthetic assessment. There was no complaint that the wallpapers were unattractive; only that they did not measure up to the Claimant's expectations of an image which only they knew they sought to attain. There was no warranty nor could there be in law, as to fitness for purpose. This was not a case of defective material, nor could it be said that the work had been carried out negligently. Nor was there any misrepresentation or mis-statement as in the 18A case.
As to the losses said to have been incurred, no-one could have foreseen the effect of visual images on a commercial enterprise. The procedure in arbitration was apparently unusual. It was not as though the Claimant had instructed the Respondents to design a court-room, nor was it clear that an arbitrator had to be clothed with some special image which was remote from that of a judge. A judge relied on his position (and perhaps his wig and robes) to convey the impression of authority. A judge did not rely on the colour of the wallpaper in his rooms: and the Respondents could not be expected to second guess any such effect..; It followed that it was not necessary to hold up or delay the arbitration proceedings. The Claimant should have been alive to the possibility of any physical reaction to the surrounding ambience and should have instructed the Respondent accordingly. Any damage which followed was too remote. It could not have been foreseen by the Respondents, nor, In any case, did the Claimant take any steps to mitigate any losses which might have been actually incurred. Accordingly the claim had no real foundation and the arbitrator was invited to dismiss it
Claimant's Closing Address
Mr.Zakana's closing address concentrated on the IBA case and its forerunner Ganasen v Bayau in the earlier case where the House of Lords had drawn a distinction between a term which is said to be implied by law and a term which is to be implied in fact. Despite that distinction here, as in Ganasen, the evidence shows that both parties were of one mind on the subject of their contract: their common intention was that the Respondent should design a series of rooms which would be fit for the purpose for which they were required. The common intention gave rise to a term implied in fact.
Equally in IBA, the House of Lords had found that EMI had a contractual duty for the design of the mast. Although EMI had no specialist knowledge of mast design, and IBA knew that and did not rely on their skill to any extent for the design, there was nothing unreasonable in holding EMI responsible for the design. Thus here, although the Respondent had no specialist knowledge of the design of arbitration rooms, there is nothing unreasonable in holding them responsible for the design. It is quite clear that, in Malaysian law, where a particular purpose is made known to the designer, he (the designer) has an obligation to produce a design that is fit for that particular purpose, and that is so whether or not there is negligence.
In fact the evidence showed that the special requirements of the Claimant had been conveyed to the Respondents. The Respondents had a duty to ensure that the designs would be fit for their purpose. It was unsatisfactory for the Respondents to make no research into, or inquiries about what happened in arbitrations. It would have been clear to them that they were not designing a fish and chip parlour, or a hotel. There were distinct criteria that had to be applied in this case.
With that in mind it is clear that the losses were foreseeable. Whatever the rooms were to be used for it must have been in the Respondent's minds, if they stopped to think about it, that any business use, if hindered, would carry financial consequences. Again it was a case that the Respondent should have made enquiries about the financial effect of interference with the use of the rooms.
The question of the size of the table had not been addressed by the Respondent. Here was a clear example of the Respondent's casual approach to the task. On any standard it was obvious that the Respondent should have known that a table that was too small would have dire effects on the use of the rooms. The reduction in the overall budget was no excuse for choosing a smaller table. The space required at the table was crucial to the scheme, and the Respondent knew it. On this aspect of the case the Respondent had come close to negligence.
All in all, the Respondent's work had proved to be virtually useless and the Claimant was entitled to compensation.
Equally in IBA, the House of Lords had found that EMI had a contractual duty for the design of the mast. Although EMI had no specialist knowledge of mast design, and IBA knew that and did not rely on their skill to any extent for the design, there was nothing unreasonable in holding EMI responsible for the design. Thus here, although the Respondent had no specialist knowledge of the design of arbitration rooms, there is nothing unreasonable in holding them responsible for the design. It is quite clear that, in Malaysian law, where a particular purpose is made known to the designer, he (the designer) has an obligation to produce a design that is fit for that particular purpose, and that is so whether or not there is negligence.
In fact the evidence showed that the special requirements of the Claimant had been conveyed to the Respondents. The Respondents had a duty to ensure that the designs would be fit for their purpose. It was unsatisfactory for the Respondents to make no research into, or inquiries about what happened in arbitrations. It would have been clear to them that they were not designing a fish and chip parlour, or a hotel. There were distinct criteria that had to be applied in this case.
With that in mind it is clear that the losses were foreseeable. Whatever the rooms were to be used for it must have been in the Respondent's minds, if they stopped to think about it, that any business use, if hindered, would carry financial consequences. Again it was a case that the Respondent should have made enquiries about the financial effect of interference with the use of the rooms.
The question of the size of the table had not been addressed by the Respondent. Here was a clear example of the Respondent's casual approach to the task. On any standard it was obvious that the Respondent should have known that a table that was too small would have dire effects on the use of the rooms. The reduction in the overall budget was no excuse for choosing a smaller table. The space required at the table was crucial to the scheme, and the Respondent knew it. On this aspect of the case the Respondent had come close to negligence.
All in all, the Respondent's work had proved to be virtually useless and the Claimant was entitled to compensation.
TRANSCRIPTS OF ORAL STATEMENTS
WITNESS STATEMENT OF Sr.Roslan FAIRUZ Din (CLAIMANT)
1.I am a partner of the Claimant firm, I have worked for the firm for the last 12 years. I am qualified as a quantity surveyor and project manager.
2.In about February 2012 Mr Aminuddin, our senior partner, suggested that it would be sensible to establish an arbitration suite in the firm's offices. Mr Aminuddin sits regularly as an arbitrator but he frequently has difficulty finding suitable rooms to hold his arbitrations. When, as normally, he leaves the venue to the parties they often book cramped or otherwise inappropriate rooms. The cost is frequently high. Often Mr Aminuddin has to travel further than he would like.
3.A sub-tenant had recently left the building leaving us with four rooms which would form an annex to the offices. We decided that we could make the smaller rooms into a waiting area and two conference or consulting rooms for the use of the parties, while the largest room would make an ideal arbitration room.
4.It occurred to us that if the rooms were a success it would be possible to offer them for hire to other arbitrators for their arbitration hearings. There is a good car park outside the offices and there are good convenient links with motorways and main line railway stations.
5.It was important to ensure that the rooms should make a good impression on the parties to the arbitrations. The last tenants had left the premises in a downbeat state. I knew an architect who I thought might be able to make some general suggestions but we did not want to pay exorbitant architects' fees for what was a straightforward decorating job. He, Jamaluddin Che Mat, advised that under the circumstances we should approach T Kassim Interior Designs Ltd; they would be able to provide a package to include design, all necessary Interior Design (ID) work and the supply of furniture.
6.I arranged to meet Mr Ghani of the Respondent company. We met at the premises on Friday 24 February 2012. I explained that we wanted something very special to impress anyone who came to the suite. He told me that their company did a lot of hotel and restaurant work, and that he had a very good idea of what we wanted.
7.He outlined his ideas straight away. These included putting in new suspended ceilings with concealed lights together with some up-lighters on some walls. He felt it was important to have curtains, rather than blinds, at the windows, while the carpets should be high quality (he had direct connections with contract carpet firms).
8.He suggested wallpaper throughout the suite to make a rich impression. He also proposed that we should have significant indoor plants but I said that in view of the amount of space which would be taken up with files and plans at arbitration hearings, we would rather have as much space as possible uncluttered by plants.
9.I told him that the tables needed to be large enough to accommodate twelve people in the arbitration room and six in each at the consultation rooms. I had already said how much space documents took.
10.He went away and about two weeks after our meeting he produced a budget price of over RM32,000 plus Govt tax. I told him that we wanted to keep the expenditure to about RM35,000 all-in; that is including Govt tax. He said that in that case it might be necessary to economise somewhat on the suspended ceilings and carpets.
11.In terms of carpets, he had recently come across a new design which had a look of exceptional quality, but which was quite economical. My reaction was to ensure that we did not cut corners, so I was keen to see and discuss samples of all the materials to be used, including the table designs. He arranged to meet me again on 24 March and I told him that would be a suitable day because we had a partners' meeting a week later. It was suggested that if I approved of the samples he should make a presentation to the partners' meeting on 31 March.
12.One other matter which I stressed to Mr Ghani was the importance of completing the work on time. Mr Aminuddin was to start a long arbitration on 9 October 2012. Leading counsel had been engaged by each party so it was an opportunity to use our new arbitration rooms. I agreed with Mr Ghani that the work should be completed by 30 September 2012.
13.On 24 March he telephoned to say he had been called away to an important meeting but that he would telephone again in a day or so to make new arrangements. This happened several times during that week. In the end it was decided to postpone the partners' meeting until Saturday 1 April so that we would not be disturbed. I continued to try to get a meeting with Mr Ghani before then so that I could be fully involved in the choice of materials.
14.In the end Mr Ghani arrived with his samples about 5 minutes before the partners' meeting on the Saturday. I had no chance at all to see what he was going to propose. This put me in some difficulty because some of the partners had started to make comments about the overall costs. In consequence I felt obliged to defend Ghani's firm against adverse criticism at the partners' meeting without the opportunity to ensure that the proposals were entirely suitable.
15.In the event I was most unhappy about the samples which Ghani displayed at the meeting. There were no alternatives to choose from and I thought some of the colours and wallpapers were a bit garish for the use to which we would put the rooms. However, two of our junior partners expressed such delight in some of the papers and curtains that no one objected at the time. However, I know that Mr Aminuddin was not altogether happy about the scheme.
16.Nevertheless, because the price came within our budget I was instructed by the other partners to accept the proposals. I set about arranging for the contract to be drawn up. Mr Ghani suggested that a PAM Minor Works Contract would be suitable and I agreed. I expected to draw this up but Mr Ghani said he would do it. I arranged a meeting between Mr.Aminuddin and Mr Ghani to sign the contract before Mr.Aminuddin went away on holiday. On the day Mr Ghani arrived but without the contract. He said he would put it in the post but he never did.
17.The work got under way on time and at first there were no snags. No one in the partnership was enthusiastic about the wallpapers when we first saw them, but I thought they would look better when the carpets and curtains were put in and when the furniture arrived.
18.In fact the waiting-room looked no better: I thought the wallpaper in there made the room look like an Indian restaurant while others thought it looked like a brothel. I complained to Ghani but he said that they had used that paper often elsewhere without criticism.
19.When the table was put into the arbitration room it was clear that it was not big enough. It looked puny in the room and I had serious doubts whether it would accommodate the numbers of persons which would sit at the table in an arbitration. However, the chairs arrived shortly after and there was just space for twelve chairs around the table.
20.Since Mr Aminuddin's arbitration was due to start within a few days, we said nothing to T.Kassim Interior Designs Ltd about the table. Once the arbitration started, though, it became clear that there were serious difficulties. Everyone at the arbitration complained about lack of space which embarrassed Mr Aminudin.
21.Worse was to follow, because by the afternoon of the first day many participants in the arbitration complained of eye-strain and headaches. It appears that the fleur-delys pattern (the motifs of which were about 100 mm apart) of the wallpaper had an adverse visual effect on people who were concentrating hard on the proceedings.
22.In desperation Mr Aminuddin decided that the arbitration should be adjourned. I contacted Ghani and asked for an urgent meeting with him. At first he refused to accept that there was anything wrong but eventually he agreed to replace the wallpaper in the arbitration room and to obtain a new, larger table. Unfortunately this could not be done before 23 October, but with the commitments of counsel and witnesses the arbitration could not re- start until 30 October.
23.We are still left with the peculiar wallpaper in the waiting-room which creates a bad impression.
2.In about February 2012 Mr Aminuddin, our senior partner, suggested that it would be sensible to establish an arbitration suite in the firm's offices. Mr Aminuddin sits regularly as an arbitrator but he frequently has difficulty finding suitable rooms to hold his arbitrations. When, as normally, he leaves the venue to the parties they often book cramped or otherwise inappropriate rooms. The cost is frequently high. Often Mr Aminuddin has to travel further than he would like.
3.A sub-tenant had recently left the building leaving us with four rooms which would form an annex to the offices. We decided that we could make the smaller rooms into a waiting area and two conference or consulting rooms for the use of the parties, while the largest room would make an ideal arbitration room.
4.It occurred to us that if the rooms were a success it would be possible to offer them for hire to other arbitrators for their arbitration hearings. There is a good car park outside the offices and there are good convenient links with motorways and main line railway stations.
5.It was important to ensure that the rooms should make a good impression on the parties to the arbitrations. The last tenants had left the premises in a downbeat state. I knew an architect who I thought might be able to make some general suggestions but we did not want to pay exorbitant architects' fees for what was a straightforward decorating job. He, Jamaluddin Che Mat, advised that under the circumstances we should approach T Kassim Interior Designs Ltd; they would be able to provide a package to include design, all necessary Interior Design (ID) work and the supply of furniture.
6.I arranged to meet Mr Ghani of the Respondent company. We met at the premises on Friday 24 February 2012. I explained that we wanted something very special to impress anyone who came to the suite. He told me that their company did a lot of hotel and restaurant work, and that he had a very good idea of what we wanted.
7.He outlined his ideas straight away. These included putting in new suspended ceilings with concealed lights together with some up-lighters on some walls. He felt it was important to have curtains, rather than blinds, at the windows, while the carpets should be high quality (he had direct connections with contract carpet firms).
8.He suggested wallpaper throughout the suite to make a rich impression. He also proposed that we should have significant indoor plants but I said that in view of the amount of space which would be taken up with files and plans at arbitration hearings, we would rather have as much space as possible uncluttered by plants.
9.I told him that the tables needed to be large enough to accommodate twelve people in the arbitration room and six in each at the consultation rooms. I had already said how much space documents took.
10.He went away and about two weeks after our meeting he produced a budget price of over RM32,000 plus Govt tax. I told him that we wanted to keep the expenditure to about RM35,000 all-in; that is including Govt tax. He said that in that case it might be necessary to economise somewhat on the suspended ceilings and carpets.
11.In terms of carpets, he had recently come across a new design which had a look of exceptional quality, but which was quite economical. My reaction was to ensure that we did not cut corners, so I was keen to see and discuss samples of all the materials to be used, including the table designs. He arranged to meet me again on 24 March and I told him that would be a suitable day because we had a partners' meeting a week later. It was suggested that if I approved of the samples he should make a presentation to the partners' meeting on 31 March.
12.One other matter which I stressed to Mr Ghani was the importance of completing the work on time. Mr Aminuddin was to start a long arbitration on 9 October 2012. Leading counsel had been engaged by each party so it was an opportunity to use our new arbitration rooms. I agreed with Mr Ghani that the work should be completed by 30 September 2012.
13.On 24 March he telephoned to say he had been called away to an important meeting but that he would telephone again in a day or so to make new arrangements. This happened several times during that week. In the end it was decided to postpone the partners' meeting until Saturday 1 April so that we would not be disturbed. I continued to try to get a meeting with Mr Ghani before then so that I could be fully involved in the choice of materials.
14.In the end Mr Ghani arrived with his samples about 5 minutes before the partners' meeting on the Saturday. I had no chance at all to see what he was going to propose. This put me in some difficulty because some of the partners had started to make comments about the overall costs. In consequence I felt obliged to defend Ghani's firm against adverse criticism at the partners' meeting without the opportunity to ensure that the proposals were entirely suitable.
15.In the event I was most unhappy about the samples which Ghani displayed at the meeting. There were no alternatives to choose from and I thought some of the colours and wallpapers were a bit garish for the use to which we would put the rooms. However, two of our junior partners expressed such delight in some of the papers and curtains that no one objected at the time. However, I know that Mr Aminuddin was not altogether happy about the scheme.
16.Nevertheless, because the price came within our budget I was instructed by the other partners to accept the proposals. I set about arranging for the contract to be drawn up. Mr Ghani suggested that a PAM Minor Works Contract would be suitable and I agreed. I expected to draw this up but Mr Ghani said he would do it. I arranged a meeting between Mr.Aminuddin and Mr Ghani to sign the contract before Mr.Aminuddin went away on holiday. On the day Mr Ghani arrived but without the contract. He said he would put it in the post but he never did.
17.The work got under way on time and at first there were no snags. No one in the partnership was enthusiastic about the wallpapers when we first saw them, but I thought they would look better when the carpets and curtains were put in and when the furniture arrived.
18.In fact the waiting-room looked no better: I thought the wallpaper in there made the room look like an Indian restaurant while others thought it looked like a brothel. I complained to Ghani but he said that they had used that paper often elsewhere without criticism.
19.When the table was put into the arbitration room it was clear that it was not big enough. It looked puny in the room and I had serious doubts whether it would accommodate the numbers of persons which would sit at the table in an arbitration. However, the chairs arrived shortly after and there was just space for twelve chairs around the table.
20.Since Mr Aminuddin's arbitration was due to start within a few days, we said nothing to T.Kassim Interior Designs Ltd about the table. Once the arbitration started, though, it became clear that there were serious difficulties. Everyone at the arbitration complained about lack of space which embarrassed Mr Aminudin.
21.Worse was to follow, because by the afternoon of the first day many participants in the arbitration complained of eye-strain and headaches. It appears that the fleur-delys pattern (the motifs of which were about 100 mm apart) of the wallpaper had an adverse visual effect on people who were concentrating hard on the proceedings.
22.In desperation Mr Aminuddin decided that the arbitration should be adjourned. I contacted Ghani and asked for an urgent meeting with him. At first he refused to accept that there was anything wrong but eventually he agreed to replace the wallpaper in the arbitration room and to obtain a new, larger table. Unfortunately this could not be done before 23 October, but with the commitments of counsel and witnesses the arbitration could not re- start until 30 October.
23.We are still left with the peculiar wallpaper in the waiting-room which creates a bad impression.
PROOF OF EVIDENCE OF DANNY GHANI (RESPONDENT)
1.I am the sales director of the Respondent company and I have held that position since 2000. I hold a National Diploma of Design.
2.Early in 2012 I was asked by Jamalludin Che Mat, an architect who does some work with us, to contact a firm called Hamid Aminuddin. Eventually I made contact with Sr.R. Fairuz Din who asked me to call at their offices.
3.He had four rooms, which were slightly away from their main offices, which they wanted re-decorating. He said that they were rooms in which they would hold meetings and they wanted them to be nice to give a good image.
4.I told them that we did a lot of work on conference suites and dining-rooms in hotels. I got a pretty good picture of what he was after. I thought that they ought to have some bold papers to make an impression and I got out the basis of a scheme so that I could put some figures to it.
5.When I next saw him I gave him a budget cost, but he said it was too much. I went away again and re-drafted the figures to suit the amount they wanted to spend. I telephoned him and he wanted me to give a presentation to his partners and I said I would. He also wanted to go through everything with him again before the meeting but he had all the information and I was quite busy at the time so in the end I wasn’t able to see him. The date of the partners’ meeting was changed to a Saturday but as it happened I was able to comply with that.
6.I showed them all the colours I had chosen and had some small samples of the carpets and curtains. I had photographs of a similar table to the one which was to go in the arbitration room so they could get a good idea of the scheme. They were all enthusiastic. Two of the younger partners were very taken with the wallpapers.
7.They were all things we had used before. The wallpaper for the waiting-room was one we put in the bar at the tenpin bowling alley at Mid Valley Megamall. It looked very smart there. As for the fleur-de-lys* for the arbitration room, we used that in several hotel dining-rooms.
8.I thought that the big table looked good. Each end was semi-circular. The top was in ash with a mahogany inlay around the edge. We had chosen narrow-backed chairs to go with it. They were standard dining-room chairs but we had the backs covered in a special fabric. When I had them delivered all twelve of them went round the table easily enough.
9.After the work was finished R.Fairuz made a great fuss. I told him it was a bit late to start complaining about the wallpaper so long after they had approved it all. I could see that the way they had the arbitration room arranged the fleur-de-lys could be a bit disturbing so my boss agreed to re-hang another pattern, but there is no reason why the Claimants should not pay for it.
10.As for the table, we decided to replace it and see whether it could be used for one of our other jobs. We often specify something like that but in the period since then no other suitable scheme has come along and we have it on our hands and it is in our way at our headquarters.
11.In my view there was nothing wrong with our work. I was never told half of the things which they have put in their Points of Claim. There was no indication of any special meetings in the rooms; so far as I was concerned they were just the usual run of commercial offices. I was not told the tables had to be especially big; nor was I told that the rooms could be let to others.
Note : * "fleur-de-lys" is "flower of the lily." This symbol has been described by some as depicting a stylized lily or lotus flower. A decorative symbol with 3 petals that appears like a golden flower, but found in all manner of logos, symbols, and patterns.
2.Early in 2012 I was asked by Jamalludin Che Mat, an architect who does some work with us, to contact a firm called Hamid Aminuddin. Eventually I made contact with Sr.R. Fairuz Din who asked me to call at their offices.
3.He had four rooms, which were slightly away from their main offices, which they wanted re-decorating. He said that they were rooms in which they would hold meetings and they wanted them to be nice to give a good image.
4.I told them that we did a lot of work on conference suites and dining-rooms in hotels. I got a pretty good picture of what he was after. I thought that they ought to have some bold papers to make an impression and I got out the basis of a scheme so that I could put some figures to it.
5.When I next saw him I gave him a budget cost, but he said it was too much. I went away again and re-drafted the figures to suit the amount they wanted to spend. I telephoned him and he wanted me to give a presentation to his partners and I said I would. He also wanted to go through everything with him again before the meeting but he had all the information and I was quite busy at the time so in the end I wasn’t able to see him. The date of the partners’ meeting was changed to a Saturday but as it happened I was able to comply with that.
6.I showed them all the colours I had chosen and had some small samples of the carpets and curtains. I had photographs of a similar table to the one which was to go in the arbitration room so they could get a good idea of the scheme. They were all enthusiastic. Two of the younger partners were very taken with the wallpapers.
7.They were all things we had used before. The wallpaper for the waiting-room was one we put in the bar at the tenpin bowling alley at Mid Valley Megamall. It looked very smart there. As for the fleur-de-lys* for the arbitration room, we used that in several hotel dining-rooms.
8.I thought that the big table looked good. Each end was semi-circular. The top was in ash with a mahogany inlay around the edge. We had chosen narrow-backed chairs to go with it. They were standard dining-room chairs but we had the backs covered in a special fabric. When I had them delivered all twelve of them went round the table easily enough.
9.After the work was finished R.Fairuz made a great fuss. I told him it was a bit late to start complaining about the wallpaper so long after they had approved it all. I could see that the way they had the arbitration room arranged the fleur-de-lys could be a bit disturbing so my boss agreed to re-hang another pattern, but there is no reason why the Claimants should not pay for it.
10.As for the table, we decided to replace it and see whether it could be used for one of our other jobs. We often specify something like that but in the period since then no other suitable scheme has come along and we have it on our hands and it is in our way at our headquarters.
11.In my view there was nothing wrong with our work. I was never told half of the things which they have put in their Points of Claim. There was no indication of any special meetings in the rooms; so far as I was concerned they were just the usual run of commercial offices. I was not told the tables had to be especially big; nor was I told that the rooms could be let to others.
Note : * "fleur-de-lys" is "flower of the lily." This symbol has been described by some as depicting a stylized lily or lotus flower. A decorative symbol with 3 petals that appears like a golden flower, but found in all manner of logos, symbols, and patterns.
THE CLAIMANT’S COUNSEL HAS INDICATED THAT HE WILL REFER TO THE FOLLOWING CASES AT THE HEARING OF THIS ARBITRATION:
Ganasen & Co Contractors Bhd v Bayau & Partners (1975) 1 WLR 1095 (1975) 3 ALL ER 99.
You have looked at a synopsis of the case in Hudson’s Building and Engineering Contracts which state :
‘A turnkey contractor engaged structural engineers to design the frame of a factory building, the floors of which were required to accept the weight of stacker trucks moving over them carrying oil drums. As designed, the floors were not in fact able to withstand the resonance forces set up by the movement of the trucks. The contractor sued his engineer for damages. The trial judge expressly stated that there was no negligence but implied a term of suitability, suggesting that a high duty might be implied by law than that owed by professional men generally.
‘Held by the Court of Appeal, that while in general no higher duty rested on a structural engineer than that formulated in Bolam’s cases* for professional negligence, on these particular facts, since the design and build contractor was liable to the owner without qualification for a suitable design, the Defendants were liable to the contractor under a term to be implied from the particular facts.
*Note: The principle of Bolam’s case is:
Where you get a situation which involves the use of some special skill of competence ... the test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill ... it is sufficient if he exercises the ordinary skill of the ordinary competent man exercising that particular art.
Independent Broadcasting Authority v EMI Electronics and BICC Construction (1980) 14 BLR 1, HL; affirming (1978) 11 BLR 29, CA
Again you have found a synopsis in Hudson which states:
‘The designers and suppliers of a television mast, who were subcontractors under a main contract entered into in December 1983, wrote directly to the owners in response to technical enquiries from them on 11 November 1984, at a time when difficulties had been experienced with oscillations and vibration of another mast previously completed under another contract. After dealing with queries by the owners and suggestions by them for monitoring the effect of wind resistance on the design, they concluded with the words:
“However, we are well satisfied that the structures will not oscillate dangerously ...”. As a result, work continued without further investigation of the stability of the masts.
‘The Court of Appeal held that the design was not negligent but held that the letter constituted a contractual warranty supported by consideration.
‘Held by the House of Lords that although not strictly a collateral warranty, it was nevertheless, following Hamidan Said & Co v Burhanuddin, necessary to show an animus contrahendi*. Here there was no intention to enter into a contractual obligation to be found in the owner’s letter or in the subcontractor’s letter of reply. But (over-ruling the Court of Appeal) the subcontractor’s design had been negligent and the representation itself was, in the light of the situation at the time, also negligent, so that the subcontractors were liable to the owners under the Hedley Byrne principle.’
* Animus contrahendi means an intention to make an agreement.
You have looked at a synopsis of the case in Hudson’s Building and Engineering Contracts which state :
‘A turnkey contractor engaged structural engineers to design the frame of a factory building, the floors of which were required to accept the weight of stacker trucks moving over them carrying oil drums. As designed, the floors were not in fact able to withstand the resonance forces set up by the movement of the trucks. The contractor sued his engineer for damages. The trial judge expressly stated that there was no negligence but implied a term of suitability, suggesting that a high duty might be implied by law than that owed by professional men generally.
‘Held by the Court of Appeal, that while in general no higher duty rested on a structural engineer than that formulated in Bolam’s cases* for professional negligence, on these particular facts, since the design and build contractor was liable to the owner without qualification for a suitable design, the Defendants were liable to the contractor under a term to be implied from the particular facts.
*Note: The principle of Bolam’s case is:
Where you get a situation which involves the use of some special skill of competence ... the test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill ... it is sufficient if he exercises the ordinary skill of the ordinary competent man exercising that particular art.
Independent Broadcasting Authority v EMI Electronics and BICC Construction (1980) 14 BLR 1, HL; affirming (1978) 11 BLR 29, CA
Again you have found a synopsis in Hudson which states:
‘The designers and suppliers of a television mast, who were subcontractors under a main contract entered into in December 1983, wrote directly to the owners in response to technical enquiries from them on 11 November 1984, at a time when difficulties had been experienced with oscillations and vibration of another mast previously completed under another contract. After dealing with queries by the owners and suggestions by them for monitoring the effect of wind resistance on the design, they concluded with the words:
“However, we are well satisfied that the structures will not oscillate dangerously ...”. As a result, work continued without further investigation of the stability of the masts.
‘The Court of Appeal held that the design was not negligent but held that the letter constituted a contractual warranty supported by consideration.
‘Held by the House of Lords that although not strictly a collateral warranty, it was nevertheless, following Hamidan Said & Co v Burhanuddin, necessary to show an animus contrahendi*. Here there was no intention to enter into a contractual obligation to be found in the owner’s letter or in the subcontractor’s letter of reply. But (over-ruling the Court of Appeal) the subcontractor’s design had been negligent and the representation itself was, in the light of the situation at the time, also negligent, so that the subcontractors were liable to the owners under the Hedley Byrne principle.’
* Animus contrahendi means an intention to make an agreement.
BUNDLES OF DOCUMENT
T Kassim INTERIOR DESIGNS LIMITED
22, Jalan Anggerik Villa
40450 Shah Alam
Selangor
28 February 2012
Sr.Fairuz Din
Messrs Hamid Aminuddin & Partners
L 18, Plaza Tun Ismail,
Jalan Pokok,
Raub, Pahang.
Dear Sirs
Sr.Fairuz Din
Messrs Hamid Aminuddin & Partners
L 18, Plaza Tun Ismail,
Jalan Pokok,
Raub, Pahang.
Dear Sirs
RE: PROPOSED ALTERATIONS TO NEW OFFICE SUITE
Further to our discussions of Friday concerning the above work, I have pleasure in forwarding to you our quotation.
For work of this nature our terms require for valuation of the works at the end of each period of four weeks and for payment of the amount due less a retention of 5 percent. After completion of the work there would be a period of three months for the rectification of any defects, after which the retention would be released.
Any variations will be valued either by an approved quotation, failing which the value will be calculated at net cost plus a percentage addition of 20 percent.
The existing structure together with the works are to be insured by your company. We may determine the contract in circumstances where you fail to make payment of any interim valuation: or upon the liquidation or other act of bankruptcy of your company.
Any dispute relating to the contract shall, upon the application of either party, be referred to an arbitrator appointed by the President of the National Institute of Interior Designers pursuant to the Arbitration Act 2005. The arbitrator’s decision is to be final and binding on the parties.
Should you have any queries, please do not hesitate to contact either myself or T Kassim and we shall be pleased to assist you.
We look forward to hearing from you shortly.
Yours faithfully
Danny Ghani
Enc
For work of this nature our terms require for valuation of the works at the end of each period of four weeks and for payment of the amount due less a retention of 5 percent. After completion of the work there would be a period of three months for the rectification of any defects, after which the retention would be released.
Any variations will be valued either by an approved quotation, failing which the value will be calculated at net cost plus a percentage addition of 20 percent.
The existing structure together with the works are to be insured by your company. We may determine the contract in circumstances where you fail to make payment of any interim valuation: or upon the liquidation or other act of bankruptcy of your company.
Any dispute relating to the contract shall, upon the application of either party, be referred to an arbitrator appointed by the President of the National Institute of Interior Designers pursuant to the Arbitration Act 2005. The arbitrator’s decision is to be final and binding on the parties.
Should you have any queries, please do not hesitate to contact either myself or T Kassim and we shall be pleased to assist you.
We look forward to hearing from you shortly.
Yours faithfully
Danny Ghani
Enc
T Kassim INTERIOR DESIGNS LIMITED
22, Jalan Anggerik Villa
40450 Shah Alam
Selangor
26 February 2012
Messrs. Hamid Amiruddin & Partners,
L 18, Plaza Tun Ismail
Jalan Pokok,
Raub, Pahang
Messrs. Hamid Amiruddin & Partners,
L 18, Plaza Tun Ismail
Jalan Pokok,
Raub, Pahang
RE: QUOTATION
1. Suspended Ceilings
No alternatives have been quoted: ceiling tiles of both have a 600 x 600 white metal grid system but the tiles differ in both pattern and quality.
Type A:
Mainboard Tatra fissured (as existing tiles in your present offices)
Type B:
Microbock Sektor (similar to the Reception Area on the Ground Floor)
All lighting quoted is to be 600 x 600 modular, having 4 no tubes per fitting and complete with bat-wing reflectors-
Type A ceiling, including lighting for total area: RM5,890.40
Type B ceiling, including lighting for total area: RM8,140.60
2. Decoration to all areas
a) to strip all walls of their existing coverings and to prepare and make good ready to receive new papered finishes.
b) to prepare all woodwork and metal-framed windows and apply 2 no undercoats and, no gloss coat of oil based paint.
c) to supply and hang new decorative wallpaper finishes.
Waiting-room RM 836.00
Conference rooms RM 1,308.60
Arbitration room RM 2,235.00
3. Curtains
Supply and hang full working curtains to 6 no windows, all having a goblet-style heading and decorative tie-backs, fully lined and treated to appropriate degree of flame retardancy. Fabric to match decoration for each room. RM2,308.60
4. Supply and install
Supply and install the following office furniture, all to be in ash finish, with seating fabrics to co-ordinate with decoration in each room:
a 24 no chairs RM 6,760.00
b 1 no table (oval) RM 633.25
c 4 no tables to form one large table RM 1,665.00
d 1 no table (round) RM 629.50
5. Carpets
To supply and lay Grandmaster carpet including underfelt and all necessary accessories to the following areas: -
Waiting-room RM 774.00
Conference rooms RM 1,101.60
Arbitration room RM 2,618.00
6. Sundry
Hardwood shelves. other Joinery works including new lock and electrical alterations: RM3,276.48
Grand total excluding Govt tax RM 34,900.55
All prices are subject to 6% Govt tax
No alternatives have been quoted: ceiling tiles of both have a 600 x 600 white metal grid system but the tiles differ in both pattern and quality.
Type A:
Mainboard Tatra fissured (as existing tiles in your present offices)
Type B:
Microbock Sektor (similar to the Reception Area on the Ground Floor)
All lighting quoted is to be 600 x 600 modular, having 4 no tubes per fitting and complete with bat-wing reflectors-
Type A ceiling, including lighting for total area: RM5,890.40
Type B ceiling, including lighting for total area: RM8,140.60
2. Decoration to all areas
a) to strip all walls of their existing coverings and to prepare and make good ready to receive new papered finishes.
b) to prepare all woodwork and metal-framed windows and apply 2 no undercoats and, no gloss coat of oil based paint.
c) to supply and hang new decorative wallpaper finishes.
Waiting-room RM 836.00
Conference rooms RM 1,308.60
Arbitration room RM 2,235.00
3. Curtains
Supply and hang full working curtains to 6 no windows, all having a goblet-style heading and decorative tie-backs, fully lined and treated to appropriate degree of flame retardancy. Fabric to match decoration for each room. RM2,308.60
4. Supply and install
Supply and install the following office furniture, all to be in ash finish, with seating fabrics to co-ordinate with decoration in each room:
a 24 no chairs RM 6,760.00
b 1 no table (oval) RM 633.25
c 4 no tables to form one large table RM 1,665.00
d 1 no table (round) RM 629.50
5. Carpets
To supply and lay Grandmaster carpet including underfelt and all necessary accessories to the following areas: -
Waiting-room RM 774.00
Conference rooms RM 1,101.60
Arbitration room RM 2,618.00
6. Sundry
Hardwood shelves. other Joinery works including new lock and electrical alterations: RM3,276.48
Grand total excluding Govt tax RM 34,900.55
All prices are subject to 6% Govt tax
Hamid Aminuddin and Partners Quantity Surveyors and Construction Contracts Advisers
L 18, Plaza Tun Ismail
Jalan Pokok,
Raub, Pahang
3 March 2012
Danny Ghani
T Kassim INTERIOR DESIGNS LIMITED
22, Jalan Anggerik Villa
40450 Shah Alam
Selangor
Dear Mr Ghani,
Danny Ghani
T Kassim INTERIOR DESIGNS LIMITED
22, Jalan Anggerik Villa
40450 Shah Alam
Selangor
Dear Mr Ghani,
Proposed refurbishment, Plaza Tun Ismail
Thank you for meeting me last Friday, and for your quotation dated 28 February.
I have discussed the prices with Mr Aminuddin and we consider that we should limit our spending on the capital works to about RM35,000 inclusive of Govt Tax. That means that the gross cost should not exceed RM30,000. I appreciate that we could use the cheaper version of the suspended ceiling but we are keen that it should match the present offices on that floor.
Would you therefore please see whether any savings could be made in the carpets or furniture. Having said that, as you know we are anxious to make the refurbished suite as impressive as possible given the use to which it will be put.
There is to be a partners' meeting on Friday 31 March and I should like to present to the partners a final scheme for approval. Before that date I should be pleased to meet you again so that we can discuss colours, wallpaper designs, carpet choices, etc. Perhaps you could come here to discuss these matters on Friday 24 March, at say 2.30 pm.
With best wishes
Sr.R. Fairuz
I have discussed the prices with Mr Aminuddin and we consider that we should limit our spending on the capital works to about RM35,000 inclusive of Govt Tax. That means that the gross cost should not exceed RM30,000. I appreciate that we could use the cheaper version of the suspended ceiling but we are keen that it should match the present offices on that floor.
Would you therefore please see whether any savings could be made in the carpets or furniture. Having said that, as you know we are anxious to make the refurbished suite as impressive as possible given the use to which it will be put.
There is to be a partners' meeting on Friday 31 March and I should like to present to the partners a final scheme for approval. Before that date I should be pleased to meet you again so that we can discuss colours, wallpaper designs, carpet choices, etc. Perhaps you could come here to discuss these matters on Friday 24 March, at say 2.30 pm.
With best wishes
Sr.R. Fairuz
T Kassim INTERIOR DESIGNS LIMITED
22, Jalan Anggerik Villa
40450 Shah Alam
Selangor
9 March 2012
Sr.Fairuz Din
Messrs Hamid Aminuddin & Partners
L 18, Plaza Tun Ismail,
Jalan Pokok,
Raub, Pahang.
Dear Mr Fairuz
Sr.Fairuz Din
Messrs Hamid Aminuddin & Partners
L 18, Plaza Tun Ismail,
Jalan Pokok,
Raub, Pahang.
Dear Mr Fairuz
RE: PROPOSED ALTERATIONS TO NEW OFFICE SUITE, PLAZA TUN ISMAIL
Thank you for your letter dated 3 March.
I am pleased to enclose my revised quotation as requested. I shall be pleased to meet you on 24 March as suggested. Perhaps you would like me to give a presentation of the scheme to your partners at their meeting on 31 March.
Yours sincerely
Danny Ghani
Enc
I am pleased to enclose my revised quotation as requested. I shall be pleased to meet you on 24 March as suggested. Perhaps you would like me to give a presentation of the scheme to your partners at their meeting on 31 March.
Yours sincerely
Danny Ghani
Enc
T Kassim INTERIOR DESIGNS LIMITED
22, Jalan Anggerik Villa
40450 Shah Alam
Selangor
9 March 2012Sr.
Fairuz Din
Messrs Hamid Aminuddin & Partners
L 18, Plaza Tun Ismail,
Jalan Pokok,
Raub, Pahang.
Dear Mr Fairuz
Fairuz Din
Messrs Hamid Aminuddin & Partners
L 18, Plaza Tun Ismail,
Jalan Pokok,
Raub, Pahang.
Dear Mr Fairuz
REVISED QUOTATION FOR EXISTING OFFICES
Please refer to original quotation, dated 28 February 2012:
1. Furniture: all hardwood to be in beech
24 chairs RM 5,762.00
Oval table RM 620.00
Large table RM 1,500.00
Round table RM 618.00
2 Carpets throughout RM 3,328.56
1. Furniture: all hardwood to be in beech
24 chairs RM 5,762.00
Oval table RM 620.00
Large table RM 1,500.00
Round table RM 618.00
2 Carpets throughout RM 3,328.56
Hamid Aminuddin and Partners
Quantity Surveyors and Construction Contracts Advisers
L 18, Plaza Tun Ismail
Jalan Pokok,
Raub, Pahang
15 March 2012
Danny Ghani
T Kassim INTERIOR DESIGNS LIMITED
22, Jalan Anggerik Villa
40450 Shah Alam
Selangor
Dear Mr Ghani,
Danny Ghani
T Kassim INTERIOR DESIGNS LIMITED
22, Jalan Anggerik Villa
40450 Shah Alam
Selangor
Dear Mr Ghani,
Proposed refurbishment, Plaza Tun Ismail
Thank you for your revised quotation dated 9 March.
Although no decision can be made before the partners' meeting I think we should work to the prices which you have given. As I mentioned before I think it is important that we should meet to discuss the colour scheme before the meeting because it is vital that we convey the right image with the new rooms. It may be helpful for you to make a formal presentation to the partners but I think we should meet beforehand.
If a contract is signed immediately after the partners' meeting would you have sufficient time to complete the works by 30 September? Mr Aminuddin has an arbitration starting soon after and needs to fix a venue well before then.
We are quite content with the terms set out in your letter dated 28 February. However, we would want provision in any contract between us for liquidated damages. You will no doubt understand that we are anxious to ensure that the work is completed on time and as far as we can estimate delay would cost us in the region of RM2,000 per week. We would thus want a clause to that effect.
Kind regards
Sr.R. Fairuz
Although no decision can be made before the partners' meeting I think we should work to the prices which you have given. As I mentioned before I think it is important that we should meet to discuss the colour scheme before the meeting because it is vital that we convey the right image with the new rooms. It may be helpful for you to make a formal presentation to the partners but I think we should meet beforehand.
If a contract is signed immediately after the partners' meeting would you have sufficient time to complete the works by 30 September? Mr Aminuddin has an arbitration starting soon after and needs to fix a venue well before then.
We are quite content with the terms set out in your letter dated 28 February. However, we would want provision in any contract between us for liquidated damages. You will no doubt understand that we are anxious to ensure that the work is completed on time and as far as we can estimate delay would cost us in the region of RM2,000 per week. We would thus want a clause to that effect.
Kind regards
Sr.R. Fairuz
Hamid Aminuddin and Partners
Quantity Surveyors and Construction Contracts Advisers
L 18, Plaza Tun Ismail
Jalan Pokok,
Raub, Pahang
25 March 2012
Danny Ghani
T Kassim INTERIOR DESIGNS LIMITED
22, Jalan Anggerik Villa
40450 Shah Alam
Selangor
Dear Mr Ghani,
Danny Ghani
T Kassim INTERIOR DESIGNS LIMITED
22, Jalan Anggerik Villa
40450 Shah Alam
Selangor
Dear Mr Ghani,
Proposed refurbishment, Plaza Tun Ismail
Thank you for telephoning. I am sorry that you were unable to meet me yesterday. Please will you let me know when we can meet.
The partners' meeting has now been put back to Saturday 1 April at 10 am. I hope that you can attend then, but in any event as I have said before I think it vital that we meet before then.
Please will you telephone me.
Many thanks
Sr.R. Fairuz
The partners' meeting has now been put back to Saturday 1 April at 10 am. I hope that you can attend then, but in any event as I have said before I think it vital that we meet before then.
Please will you telephone me.
Many thanks
Sr.R. Fairuz
Hamid Aminuddin and Partners
Quantity Surveyors and Construction Contracts Advisers
L 18, Plaza Tun Ismail
Jalan Pokok,
Raub, Pahang
03 April 2012
Danny Ghani
T Kassim INTERIOR DESIGNS LIMITED
22, Jalan Anggerik Villa
40450 Shah Alam
Selangor
Dear Mr Ghani,
Danny Ghani
T Kassim INTERIOR DESIGNS LIMITED
22, Jalan Anggerik Villa
40450 Shah Alam
Selangor
Dear Mr Ghani,
Proposed refurbishment, Plaza Tun Ismail
I am writing to confirm my telephone call and to let you know that after you left the meeting on Saturday my partners agreed to go ahead with the works described in your quotations and they have therefore instructed me to accept your offer.
I understand that you will prepare the formal contract including the terms set out in your letter dated 26 February together with a clause which I suggest should be in the following terms:
In the event of any delays arising out of the contractor's failure to complete the works by 30 September 2012 the contractor shall pay liquidated damages to the employer at the rate of RM2,000 per week.
You were good enough to indicate that you would bring the formal contract to these offices on Thursday 6 April at 12 noon for signature. Mr Aminuddin has arranged to be in the office that day and he will sign the contract on behalf of the firm. By my calculation the contract sum is now RM29,932.82 which is subject to Govt tax.
As you know the present tenants leave on Friday 28 April so that we can let you have possession of the rooms to start work on Monday 1 May (or Tuesday if you do not work on the Labour Day Holiday).
Yours sincerely
Sr.R. Fairuz
I understand that you will prepare the formal contract including the terms set out in your letter dated 26 February together with a clause which I suggest should be in the following terms:
In the event of any delays arising out of the contractor's failure to complete the works by 30 September 2012 the contractor shall pay liquidated damages to the employer at the rate of RM2,000 per week.
You were good enough to indicate that you would bring the formal contract to these offices on Thursday 6 April at 12 noon for signature. Mr Aminuddin has arranged to be in the office that day and he will sign the contract on behalf of the firm. By my calculation the contract sum is now RM29,932.82 which is subject to Govt tax.
As you know the present tenants leave on Friday 28 April so that we can let you have possession of the rooms to start work on Monday 1 May (or Tuesday if you do not work on the Labour Day Holiday).
Yours sincerely
Sr.R. Fairuz
PAM - CIArb ROUTE TO ARBITRATOR COURSE - SAMPLE EXAMINATION
Time allowed: 3 hours.
Please complete the Identification cover sheet on the front of your answer book.
Candidates are permitted to bring any relevant material into the examination room.
You are asked to write a Reasoned Award and refer to all the information contained In the papers sent to you prior to the examination and in the Extracts from the Arbitrator's Notebook which is attached.
Candidates should answer this examination paper on the basis of the current state of the law of Malaysia.
Please: remember not to use your own name when signing the award. You should use the fictitious name supplied in the information.
Please complete the Identification cover sheet on the front of your answer book.
Candidates are permitted to bring any relevant material into the examination room.
You are asked to write a Reasoned Award and refer to all the information contained In the papers sent to you prior to the examination and in the Extracts from the Arbitrator's Notebook which is attached.
Candidates should answer this examination paper on the basis of the current state of the law of Malaysia.
Please: remember not to use your own name when signing the award. You should use the fictitious name supplied in the information.
AWARD WRITING EXERCISE
You are asked to write a Reasoned Award based on the papers enclosed (pages 2-22) and the Arbitrator's Notebook which will be made available to you at the start of the examination.
You may, using the information provided prior the examination, work on any aspect of your final submission before the date of the examination. This work, including any draft of the recitals in as far as you have been able to complete them from the information already provided, may be taken into the examination room and, if you so wish, be submitted as part of the final script However you should not assume that any of your final script can be completed prior to the examination.
Note: Please remember not to use your own name when signing the Award. You should use the fictitious name supplied in the information.
Candidates should not assume that information given in the enclosed papers will remain unaltered at the hearing.
PLEASE BRING THESE PAPERS WITH YOU TO THE EXAMINATION.
You may, using the information provided prior the examination, work on any aspect of your final submission before the date of the examination. This work, including any draft of the recitals in as far as you have been able to complete them from the information already provided, may be taken into the examination room and, if you so wish, be submitted as part of the final script However you should not assume that any of your final script can be completed prior to the examination.
Note: Please remember not to use your own name when signing the Award. You should use the fictitious name supplied in the information.
Candidates should not assume that information given in the enclosed papers will remain unaltered at the hearing.
PLEASE BRING THESE PAPERS WITH YOU TO THE EXAMINATION.
YOUR TASK...
On 10 January 2017 you, I.M Abel, were appointed by the President of the National Institute of Interior Designers (Pertubuhan Pereka Dalaman Nasional) (PPDN) to be the arbitrator in this dispute. The PPDM have sent you a copy of the form sent with the application made by the Claimant for the appointment of an arbitrator. The form indicated that the dispute concerns the interior design of a suite of offices and that approximately RM21,500.00 is in issue. The contract terms, including the arbitration clause, is set out in the enclosed bundle of documents.
You invited the parties to a preliminary meeting but their solicitors suggested that a meeting would incur unnecessary costs and they agreed directions which they asked you to confirm.
Pleadings and witness statements, enclosed with these papers, were served in accordance with the agreed directions. In accordance with the parties' agreement you also gave directions for discovery and for the service of witness statements. Neither party has requested directions concerning expert witnesses.
A hearing has been arranged to be held at Pertubuhan Akitek Malaysia (PAM), 99-L Jalan Tandok, Bukit Bangsar, 59100 Bangsar, Kuala Lumpur on 21 February 2017 with two days reserved.
The parties have asked that your award should have reasons for your decision.
You invited the parties to a preliminary meeting but their solicitors suggested that a meeting would incur unnecessary costs and they agreed directions which they asked you to confirm.
Pleadings and witness statements, enclosed with these papers, were served in accordance with the agreed directions. In accordance with the parties' agreement you also gave directions for discovery and for the service of witness statements. Neither party has requested directions concerning expert witnesses.
A hearing has been arranged to be held at Pertubuhan Akitek Malaysia (PAM), 99-L Jalan Tandok, Bukit Bangsar, 59100 Bangsar, Kuala Lumpur on 21 February 2017 with two days reserved.
The parties have asked that your award should have reasons for your decision.
PLEADINGS
IN THE MATTER OF THE ARBITRATION ACT 2005
and
in the matter of an arbitration
Between
Hamid Aminuddin and Partners Claimant
and
T. Kassim Interior Designs Limited Respondent
POINTS OF CLAIM
- The Claimant is a firm of quantity surveyors and construction contract advisers, the senior partners of which, Mr Hamid Aminuddin, sits regularly as arbitrator. The Respondent is, or purports to be, a company specialising in interior design.
- By a quotation in writing dated 28 February 2012, as amended by a document dated 9 March, 2012, the Respondent tendered for the design and execution of interior decorations, together with the provision of furniture, carpets and curtains in an arbitration suite at the Claimant’s offices at Plaza Tun Ismail, Jalan Pokok, Raub, Pahang. The said tender was accepted by the Claimant shortly thereafter.
- The Claimant agreed to terms proposed by the Respondent under which the works would be carried out. It was agreed that the contract sum was to be RM 30,000.00 + Govt tax; that the works were to be completed by 30 September 2012; and that provision for liquidated damages for non-completion was to be set at RM 2,000.00 per week. The Respondent proposed to prepare the formal contract for signature.
- In fact, despite constant reminders from the Claimant, the Respondent never produced the contract form.
- Notwithstanding that the formal contract document was not signed, there were express terms of the agreement between the parties that the completed arbitration suite should be suitable for quasi-legal proceedings and that the decor should reflect the gravity of the proposed use and Mr Aminuddin's status in his profession, and that the table In the arbitration room was to be large enough to seat twelve people in comfort with space for files and plans. Tables in each of the consultation rooms’ were to be large enough to sit six people in comfort.
- Further there were implied terms of the agreement that the works should be carried out in a good and workmanlike manner, using proper materials and so that on completion the scheme should be fit for the purpose intended.
- The decorative work including curtains and carpets were completed on 29 September 2012 and the furniture was delivered on the following day.
- Notwithstanding the purported completion of the works, in breach of the express and/or implied terms aforesaid the design and materials used were defective and/or unfit for their purpose.
- PARTICULARS OF BREACH
- the wallpaper in the waiting area was wholly unsuitable for the premises;
- the table in the arbitration room would not seat twelve people in comfort; and
- the wallpaper in the arbitration room and in the consultation rooms, a fleur de lys pattern, created visual difficulties and caused headaches and loss of concentration.
- In consequence of the said breaches of contract the Claimant has suffered loss and expense.
- PARTICULARS OF LOSS
- by reason of the inadequate size of the table. and the effects of the wallpaper in the arbitration room, Mr Aminuddin was obliged to adjourn an arbitration for two weeks and thereby lost fees amounting to RM20,000.00;
- the Claimant was unable to use the rooms or any of them until 23 October with consequent loss of revenue of RM1,500.00.
- AND THE CLAIMANT CLAIMS
- Damages pursuant to paragraph 9 herein in the sum of RM 21,500.00,
- Alternatively liquidated damages amounting to RM 6,000.00.
- Interest pursuant to Section 33(6) of the Arbitration Act 2005 at such rate and for such period as the Arbitrator shall determine.
B L Zakaria Served this 25 April 2014 by
Zakaria & Ong
Advocate & Solicitors
Raub, Pahang
IN THE MATTER OF THE ARBITRATION ACT 2005
and
in the matter of an arbitration
Between
Hamid Aminuddin and Partners Claimant
and
T. Kassim Interior Designs Limited Respondent
POINTS OF DEFENCE AND COUNTERCLAIM
DEFENCE
1.The Respondent denies that it is liable to the Claimant for the sums claimed or at all.
2.Save that the Respondent knows nothing of Mr Aminuddin's activities, paragraph 1 of the Points of Claim is admitted.
3.Paragraph 2 of the Point of claim is admitted. The Respondent attended a meeting at the Claimant’s offices on 1 April 2012 at which the design together with samples and colour boards, were presented to the partners of the Claimant firm. The design was considered and accepted by the Claimant.
4.Paragraph 3 & 4 of the Points of Claim admitted.
5.Paragraph 5 of the Points of Claim is denied. The Claimant's request was for a design scheme on normal commercial lines. The term ‘quasi-legal proceedings’ was never mentioned by the Claimant or any of its agents. The Respondent further denies that any mention was made of Mr Aminuddin's status.
6.As to the table in the arbitration room, the Respondent avers that the table first provided would seat twelve people. In fact the Respondent agreed to replace the table, and did so at no extra charge notwithstanding that the, table was suitable for its purpose as expressed by the Claimant.
7.If, which is not admitted there were implied terms of the agreement as pleaded in paragraph 6 of the Points of Claim, the Respondent implied with such terms.
8.Paragraph 7 of the Points of Claim is admitted and averred.
9.Paragraph 8 of the Points of Claim is denied. The wallpaper in the waiting area is one which the Respondent has used elsewhere in commercial premises without previous complaint. It is wholly suitable for the room in which it was hung and had been approved by the Claimant at the meeting on 1 April 2012.
10.The table in the arbitration room was capable of seating twelve people as stated above.
11.As to the wallpaper in the arbitration room, it was approved by the Claimant at the meeting on 1 April. It would be satisfactory with the introduction of pictures and plants to break up any visual impact.
12.Paragraph 9 of the Points of Claim is denied. The Claimant is put to strict proof of any loss. In any event the damage claimed is too remote. The respondent was not informed that any particular arbitration was to be held before the said table was replaced. It is further denied that the wallpaper had an effect such as to cause the adjournment of an arbitration.
13.Further, if, which is denied, it was necessary to abandon an arbitration in the arbitration room, the said arbitration could have been held elsewhere, Accordingly the Respondent says that the Claimant has failed to mitigate any loss it may have suffered.
14.As to loss of revenue, the Respondent was not informed that the Claimant was intending to charge for the use of the arbitration suite, and accordingly the alleged losses are too remote.
15.As for the claim for liquidated damages pleaded in the prayer to the Points of Claim, the Respondent avers that the works were completed on time and the Claimant is thus not entitled to such damages.
COUNTERCLAIM
16.The Respondent repeats paragraphs 1 to 4 herein by way of Counterclaim.
17.Further the Respondent has replaced wallpaper and the table without charge hitherto. However, in view of this action the Respondent seeks payment therefore in the sum of RM1,800.00 for the new table and RM700.00 for labour and materials in replacing wallpaper.
AND THE RESPONDENT COUNTERCLAIMS
1. RM2,500.00 pursuant to paragraph 17 herein.
2. 5% simple interest per annum.
3. Costs.
1.The Respondent denies that it is liable to the Claimant for the sums claimed or at all.
2.Save that the Respondent knows nothing of Mr Aminuddin's activities, paragraph 1 of the Points of Claim is admitted.
3.Paragraph 2 of the Point of claim is admitted. The Respondent attended a meeting at the Claimant’s offices on 1 April 2012 at which the design together with samples and colour boards, were presented to the partners of the Claimant firm. The design was considered and accepted by the Claimant.
4.Paragraph 3 & 4 of the Points of Claim admitted.
5.Paragraph 5 of the Points of Claim is denied. The Claimant's request was for a design scheme on normal commercial lines. The term ‘quasi-legal proceedings’ was never mentioned by the Claimant or any of its agents. The Respondent further denies that any mention was made of Mr Aminuddin's status.
6.As to the table in the arbitration room, the Respondent avers that the table first provided would seat twelve people. In fact the Respondent agreed to replace the table, and did so at no extra charge notwithstanding that the, table was suitable for its purpose as expressed by the Claimant.
7.If, which is not admitted there were implied terms of the agreement as pleaded in paragraph 6 of the Points of Claim, the Respondent implied with such terms.
8.Paragraph 7 of the Points of Claim is admitted and averred.
9.Paragraph 8 of the Points of Claim is denied. The wallpaper in the waiting area is one which the Respondent has used elsewhere in commercial premises without previous complaint. It is wholly suitable for the room in which it was hung and had been approved by the Claimant at the meeting on 1 April 2012.
10.The table in the arbitration room was capable of seating twelve people as stated above.
11.As to the wallpaper in the arbitration room, it was approved by the Claimant at the meeting on 1 April. It would be satisfactory with the introduction of pictures and plants to break up any visual impact.
12.Paragraph 9 of the Points of Claim is denied. The Claimant is put to strict proof of any loss. In any event the damage claimed is too remote. The respondent was not informed that any particular arbitration was to be held before the said table was replaced. It is further denied that the wallpaper had an effect such as to cause the adjournment of an arbitration.
13.Further, if, which is denied, it was necessary to abandon an arbitration in the arbitration room, the said arbitration could have been held elsewhere, Accordingly the Respondent says that the Claimant has failed to mitigate any loss it may have suffered.
14.As to loss of revenue, the Respondent was not informed that the Claimant was intending to charge for the use of the arbitration suite, and accordingly the alleged losses are too remote.
15.As for the claim for liquidated damages pleaded in the prayer to the Points of Claim, the Respondent avers that the works were completed on time and the Claimant is thus not entitled to such damages.
COUNTERCLAIM
16.The Respondent repeats paragraphs 1 to 4 herein by way of Counterclaim.
17.Further the Respondent has replaced wallpaper and the table without charge hitherto. However, in view of this action the Respondent seeks payment therefore in the sum of RM1,800.00 for the new table and RM700.00 for labour and materials in replacing wallpaper.
AND THE RESPONDENT COUNTERCLAIMS
1. RM2,500.00 pursuant to paragraph 17 herein.
2. 5% simple interest per annum.
3. Costs.
Chan Ping Yau Served this 22 May 2014 by
Yee & Sung
Solicitors for the Respondent
Kuala Lumpur
IN THE MATTER OF THE ARBITRATION ACT 2005
and
in the matter of an arbitration
Between
Hamid Aminuddin and Partners Claimant
and
T. Kassim Interior Designs Limited Respondent
POINTS OF REPLY AND DEFENCE TO COUNTERCLAIM
1.The Claimant joins issue with the Respondent on its Defence.
2.In particular the Claimant avers, in respect of paragraphs 2 and 5 Of the Points of Defence, that at meetings in or about February 2012, Mr Fairuz, a partner in the Claimant firm, advised the Respondent that the completed arbitration suite should be suitable for quasi-legal proceedings and that the decor should reflect the gravity of the proposed use and Mr. Aminuddin's status in his profession.
3.As to paragraph 3 of the Defence, while it is admitted that samples were shown to a partners' meeting on' April 2012, the Respondent had promised to show the samples to Mr Fairuz privately before the meeting and was to allow sufficient time to discuss the Respondent's proposed scheme in detail. In fact the Respondent, by its Mr Danny Ghani, produced the quotation and samples a mere five minutes before the meeting was to start.
4.Accordingly while Mr Aminuddin and Mr Fairuz had reservation about the colours and wallpapers selected by the Respondent, two junior partners of the firm expressed delight in the designs at the meeting. The quotation was satisfactory in financial terms and accordingly the Claimant approved the proposals and instructed Mr Fairuz to agree terms with the Respondent.
5.As to paragraph 6 of the Defence, the Respondent was instructed by Mr Fairuz that the table in the arbitration room was to seat twelve, people in comfort with space for files and plans. Equally the table should have space for the arbitrator to sit at the head of the table, sufficiently remote from other parties to make notes in confidence; while there should be space for a witness, again remote from other parties. Mr Ghani was made well aware of the importance of these requirement and made notes on them.
6.Although the Respondent may have hung wallpaper similar to that used in the waiting area elsewhere, as alleged in paragraph 9 of the Defence, it is plainly inappropriate to the use of the arbitration suite. The Claimant says that the wallpaper is more suitable for a restaurant or equivalent use.
7.As to paragraph 11 of the Defence, the Claimant denies that any introduction of plants or pictures would make any difference to the visual effects of the fleur-de-lys pattern of the wallpaper. It had been proved to affect the concentration of occupants of the room. As an experienced firm of designers the Respondent knew or ought to have known that the wallpaper would be quite unsuitable for its purpose.
8.The Respondent was informed by Mr Fairuz that the purpose of the arbitration suite was for use by Mr Aminuddin in his arbitrations and was to be offered for hire to other arbitrators.
9.Further, in setting the date for completion at 30 September 2012, the Respondent was informed that Mr Aminuddin had an arbitration which was due to start on 9 October 2012. In the event the parties, their representatives and witnesses complained of lack of space at the table so that the progress of the arbitration was hindered. Late on the first day of the hearing the participants complained that the wallpaper created visual difficulties and caused headaches. Accordingly it was decided to adjourn the hearing until the Respondent could take remedial measures.
10.Although the Respondent agreed to replace the table and to re-paper the walls, in the event the remedial work was not complete until 23 October 2012.
11.The Claimant joins issue with the Respondent on paragraph 12 of the Defence. At meetings between Mr Fairuz for the Claimant and Mr Ghani for the Respondent the purpose of the rooms in the arbitration suite was made plain. At all material times the Respondent knew or ought to have known that the rooms would be used for arbitration whether those conducted by Mr Aminuddin or by others.
12.As to paragraph 13 of the Defence, the arbitration which started on 9 October could not be held elsewhere at short notice.
DEFENCE TO COUNTERCLAIM
13. The Claimant avers that the Respondent is not entitled to the costs of the table and redecoration. The same were incurred only because of the Respondent's breach of contract.
2.In particular the Claimant avers, in respect of paragraphs 2 and 5 Of the Points of Defence, that at meetings in or about February 2012, Mr Fairuz, a partner in the Claimant firm, advised the Respondent that the completed arbitration suite should be suitable for quasi-legal proceedings and that the decor should reflect the gravity of the proposed use and Mr. Aminuddin's status in his profession.
3.As to paragraph 3 of the Defence, while it is admitted that samples were shown to a partners' meeting on' April 2012, the Respondent had promised to show the samples to Mr Fairuz privately before the meeting and was to allow sufficient time to discuss the Respondent's proposed scheme in detail. In fact the Respondent, by its Mr Danny Ghani, produced the quotation and samples a mere five minutes before the meeting was to start.
4.Accordingly while Mr Aminuddin and Mr Fairuz had reservation about the colours and wallpapers selected by the Respondent, two junior partners of the firm expressed delight in the designs at the meeting. The quotation was satisfactory in financial terms and accordingly the Claimant approved the proposals and instructed Mr Fairuz to agree terms with the Respondent.
5.As to paragraph 6 of the Defence, the Respondent was instructed by Mr Fairuz that the table in the arbitration room was to seat twelve, people in comfort with space for files and plans. Equally the table should have space for the arbitrator to sit at the head of the table, sufficiently remote from other parties to make notes in confidence; while there should be space for a witness, again remote from other parties. Mr Ghani was made well aware of the importance of these requirement and made notes on them.
6.Although the Respondent may have hung wallpaper similar to that used in the waiting area elsewhere, as alleged in paragraph 9 of the Defence, it is plainly inappropriate to the use of the arbitration suite. The Claimant says that the wallpaper is more suitable for a restaurant or equivalent use.
7.As to paragraph 11 of the Defence, the Claimant denies that any introduction of plants or pictures would make any difference to the visual effects of the fleur-de-lys pattern of the wallpaper. It had been proved to affect the concentration of occupants of the room. As an experienced firm of designers the Respondent knew or ought to have known that the wallpaper would be quite unsuitable for its purpose.
8.The Respondent was informed by Mr Fairuz that the purpose of the arbitration suite was for use by Mr Aminuddin in his arbitrations and was to be offered for hire to other arbitrators.
9.Further, in setting the date for completion at 30 September 2012, the Respondent was informed that Mr Aminuddin had an arbitration which was due to start on 9 October 2012. In the event the parties, their representatives and witnesses complained of lack of space at the table so that the progress of the arbitration was hindered. Late on the first day of the hearing the participants complained that the wallpaper created visual difficulties and caused headaches. Accordingly it was decided to adjourn the hearing until the Respondent could take remedial measures.
10.Although the Respondent agreed to replace the table and to re-paper the walls, in the event the remedial work was not complete until 23 October 2012.
11.The Claimant joins issue with the Respondent on paragraph 12 of the Defence. At meetings between Mr Fairuz for the Claimant and Mr Ghani for the Respondent the purpose of the rooms in the arbitration suite was made plain. At all material times the Respondent knew or ought to have known that the rooms would be used for arbitration whether those conducted by Mr Aminuddin or by others.
12.As to paragraph 13 of the Defence, the arbitration which started on 9 October could not be held elsewhere at short notice.
DEFENCE TO COUNTERCLAIM
13. The Claimant avers that the Respondent is not entitled to the costs of the table and redecoration. The same were incurred only because of the Respondent's breach of contract.
B L Zakaria Served this 25 April 2014 by
Zakaria & Ong
Advocate & Solicitors
Raub, Pahang
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