PAM - CIArb ROUTE TO ARBITRATOR COURSE - SAMPLE EXAMINATION

1/16/2019

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.

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.

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.

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.

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.

B L Zakaria Served this 25 April 2014 by
Zakaria & Ong
Advocate & Solicitors
Raub, Pahang

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