1. Adalah bersesuaian dengan audition untuk mencari mooters baru yang akan mengisi slot satu team ke pertandingan LAWASIA Moot Competition 2011, maka aku poskan moot problem yang akan digunakan untuk audition yang akan dijalankan pada hari ahad ini (13/3/2011) jam 4-6 petang. Masuk adalah percuma. Hanya 3 mooters sahaja akan dipilih untuk mewakili UiTM =)
2.Sila pilih salah satu ground untuk submission pada hari audition kelak. Alah tak susah pun.Tak percaya? Sila tengok di penghujung entri ini akan ada 2 grounds...first ground tu dah terang benderang citer pasal contract. Second ground tu pasal tort. So apa lagi? Ilmu kalau tak di amal sia-sia. So praktikkan segala pengetahuan dan pelajaran kalian selama setahun mendalami ilmu contract dan tort.
3. Selamat berjaya. Kalau ada apa-apa pertanyaan silalah tinggalkan komen di entri ini.
* kalau menang di peringkat kebangsaan akan mewakili malaysia ke LAWASIA International Moot Competition yang akan berlangsung di SEOUL,Korea. Tak teringin nak jumpa Wondergirls, Girl Generation dan segala macam artis-artis korea tu? ;)
IN THE MOOT COURT OF APPEAL OF UITM SHAH ALAM
IN THE STATE OF SELANGOR DARUL EHSAN
APPEAL NO: W-007-TF OF 2011
PEDRO BLANCO BERHAD …APPELLANT
ASPA LEE LAH …RESPONDENT
(In the matter of Civil Suit No: J-2627-EX 2010 in the
Moot High Court of UiTM Shah Alam in the state of Selangor Darul Ehsan)
Aspa lee lah …Plaintiff
Pedro Blanco Berhad …Defendant
Pedro Blanco Berhad is a construction company that was incorporated in December 2005 to pioneer the “build and sell” method of housing development in Malaysia. It is a subsidiary company of the multinational conglomerate Pedro Blanco Incorporated, a company closely linked with the Mexican government headed by the Cuban-Cigar smoking Senor Pappi Pedro. On 25 January 2009, Pedro Blanco Berhad completed the construction of two blocks of condominiums at Lowland Heights, Bukit Jelutong, Shah Alam. The block facing west was known as Casa Salmanela Barat, whereas the other block that faced east was named Casa Salmanela Timur. Both blocks were located at the very top of Bukit Jelutong and overlooked the surrounding residential area and golf course.
The next day, the company advertised in several newspapers that there were “premium condos for sale at an exclusive location in Shah Alam, just a stone’s throw away from a majestic private golf course”. After seeing the newspaper adverts, Miss Aspa Lee Lah rushed to the main office of Pedro Blanco Berhad, intending to purchase a condo or two. Earlier that day, Miss Aspa learnt that her uncle, the late Tan Sri Chow Chin Chow, owner of Malaysia’s finest chain of steakhouses, MootWorks and connoisseur of everything food , had bequeath to her a sum of RM 10 million in Maybank account No MBB-AL541-ABU-3049. Tan Sri Chow was very fond of Miss Aspa’s mother, his youngest sister, and made the following promise to her: “I will leave a substantial sum for little Lee Lah when I meet my maker and walk through the gates of heaven”.
At the main office of Pedro Blanco Berhad, Miss Aspa introduced herself to Mrs. Maria Mercedes, the CEO of the company. Mrs. Maria informed Miss Aspa that there were two condo units left for sale, one on the first floor of Casa Salmanela Barat, and another on the penthouse floor of Casa Salmanela Timur. Miss Aspa said to Mrs. Maria, “I will take both the condos. I have lots of money to invest and I can pay you cash for them. Just show me where to sign”. Mrs. Maria then printed out a standard form contract and handed the document to Miss Aspa, who quickly took out from her limited edition Harmas Berkat handbag her brand new Mont Blanc fountain pen and signed the agreement. Mrs. Maria advised Miss Aspa to read the agreement first, but this advice fell on deaf ears. Miss Aspa then used the Samseng Galaxy Tub tablet PC, as Miss Aspa despises any product from the tablet market leader Macca, to wire the money straight into the bank account of Pedro Blanco Berhad.
Among the terms and conditions of that agreement are as follows:
2. The Buyer agrees to pay the sum of RM 1 million for condo unit CSB-1-001, Casa Salmanela Barat, and RM 2 million for condo unit CST-P-007, Casa Salmanela Timur.
5. The Seller warrants that the aforementioned properties shall be free from defect for a period of 12 months from the date of signing the sale and purchase agreement (hereinafter referred to as the “warranty period”).
Miss Aspa moved into the penthouse condo, CST-P-007 on 1 February 2009. Miss Aspa decorated the place with expensive antiques from all over the world. As for the first floor condo unit, CSB-1-001, Miss Aspa used it as a storage place for her other passion in life, Bouloutin stilettos with the trademark green and white lacquered soles. This condo unit contained at least RM 1 million worth of collection of the haute couture heels.
A little over a year later, on Valentine’s Day, Casa Salmanela Barat collapsed, killing everyone in the building. Miss Aspa escaped the tragedy because she was in her penthouse in Casa Salmanela Timur. An investigation by the Shah Alam Municipal Council has revealed that Casa Salmanela Barat was built on improperly laid foundations. Pedro Blanco Berhad wanted to maximize its profits and only carried out half the required piling. According to the Council, Pedro Blanco Berhad was solely to blame for the collapse of Casa Salmanela Barat. Meanwhile, the value of condo units in Casa Salmanela Timur has plummeted. Miss Aspa’s penthouse is now only worth RM 100,000. An independent survey confirmed that Casa Salmanela Timur was still structurally sound as that condominium block was built over granite bedrock. However, people no longer wanted to live in that block for fear of suffering the same fate as the residents in the collapsed building.
Miss Aspa sued Pedro Blanco Berhad in the Moot High Court of UiTM for the losses she suffered with respect to both her condo units on the following grounds:
1. With respect to CSB-1-001, breach of the contract of sale and purchase by Pedro Blanco Bhd in failing to build a defect free condominium.
2. In relation to CST-P-007, breach of the contract of sale and purchase by Pedro Blanco Berhad in failing to build a defect free condominium and through negligence causing economic loss due to the drop in the value of that property upon the collapse of Casa Salmanela Barat.
The matter was brought forth and furiously litigated before Alfonso Alejandro J (now JCA), known in the legal fraternity as one of, if not the most brilliant and outstanding judicial mind in the Commonwealth and one that has set numerous novel precedents through vigorous exercise of judicial activism. In June 2010, Alfonso Alejandro J delivered the following judgment:
“First, let me say that clause 2 of the sale and purchase agreement between Miss Aspa Lee Lah and Pedro Blanco Berhad cannot be read literally. No building in the world could be constructed free of defect. There is no such thing as a perfect man made structure. Defects are part and parcel of human existence here upon this wretched earth. What I believe the parties intended is that the Seller warrants that the property be free of major defects during the warranty period (my added judicial emphasis). Hence the word major has to be read into clause 2 as a literal interpretation of that clause would make no commercial sense at all. Having said that, it is my finding that the very foundation upon which a building is constructed is a major part of that structure. If there were to be a defect in that structure, such as what caused the tragic events of Valentine’s Day earlier this year that would go to the very root or foundation of the contract (no judicial pun intended), and such a defect would not be tolerated by this court.
At this juncture, it is difficult not to notice that the warranty period is only for 12 months from the date of signing the sale and purchase agreement, but Casa Salmanela Barat only turned into rubble after this period. It is my view that this contractual state of affairs is not fatal to Miss Aspa Lee Lah’s claim against Pedro Blanco Berhad for breach of contract. The basis in which this court finds in favour of Miss Aspa Lee Lah on this point will now be expounded upon in greater depth.
It is implied into every contract for the sale of such “ready made” condos, a term that the Seller has taken due care and diligence in constructing the building. This implied term of the contract extends beyond the warranty period of 12 months. I have examined the sale and purchase agreement between Miss Aspa Lee Lah and Pedro Blanco Berhad and have not found any express term to this effect. However, I am exercising my judicial discretion to read into the contract such a term. I am aware that this is an apparent violation of the ‘four corners’ rule, i.e. that the parties to a contract should only be bound by the written contractual terms that are found within the four corners of the contractual document. It is the duty of the court to give commercial sense to contractual documents, and I am doing so by applying an exception to the ‘four corners’ rule. This step that I have undertaken is not a novel judicial procedure as my learned brethren in Malaysia and around the Commonwealth have done so for generations to give business efficacy to contracts.
I shall now deal with Miss Aspa Lee Lah’s claim in respect of the second condo unit, the penthouse. As far as I can see, Pedro Blanco Berhad has complied with all its contractual commitments to Miss Aspa. The penthouse was delivered without any major defects and still continues to be structurally sound despite the collapse of Casa Salmanela Barat. However, despite having a contractual claim against Pedro Blanco Berhad, it is the view of this honourable court that Miss Aspa Lee Lah still has a valid concurrent claim against the Seller for negligence.
Pedro Blanco Berhad clearly owes a duty of care to Miss Aspa Lee Lah. It is not difficult to find that Miss Aspa Lee Lah was within a class of foreseeable neighbours who could have been hurt by the negligence of Pedro Blanco Bhd. It is even easier to rule that there was sufficient proximity as there was a contractual relationship between the litigating parties. When Pedro Blanco Berhad made the conscious decision not to carry out sufficient piling for the foundations of Casa Salmanela Barat, there was a breach of the duty of care owed to Miss Aspa Lee Lah. The financial loss suffered by Miss Aspa with the drop in value of the penthouse unit was clearly caused by that breach of duty. The monetary loss suffered by Miss Aspa Lee Lah was undeniably damage that was foreseeable and therefore could legitimately be the subject of claim for economic loss in negligence. In making this ruling, I am opening the doors for claims of pure financial loss in negligence.
The restrictions imposed by Murphy are wholly unrealistic and it allows tortfeasors to rule the roost. That is something that the law cannot allow as it makes a mockery of justice. On this historic day, I declare war upon tortfeasors who dare to pour scorn on fairness, righteousness and integrity. If both the claimant and the damage caused to that claimant are foreseeable, then justice should not be denied and the artificial barriers laid down in Murphy should be torn down and buried once and for all.
I am very well aware that this ruling has great implication on the nation. I am therefore taking the unusual step of allowing Pedro Blanco Berhad to file an appeal with the Moot Court of Appeal UiTM as matters of great public importance are at stake here. I am confident that my views are correct and I that the appellate court would also agree with the findings that I have made”.
In July 2010, Pedro Blanco Berhad filed an appeal with the Moot Court of Appeal UiTM on the following grounds:
1. There was no breach of contract with respect to CSB-1-001. Pedro Blanco Berhad was only liable during the warranty period and no terms should be implied onto the contract to extend the liability.
2. Miss Aspa Lee Lah had no right to sue in negligence for the pure economic loss suffered due to the drop in value of CST-P-007.