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.
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.
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.