Abdul Malek Ahmad PCA:

The respondent is a real estate agent and, being aware that the appellant was desirous of selling its land situated at 128 Jalan Tun Sambanthan, Kuala Lumpur, arranged meetings for negotiations between the purchaser and the appellant's representatives in the presence of the respondent's representatives.

At the negotiations, the appellant was represented by their solicitor Azlan Nor (Azlan) and their part time accountant Tham Lee King (Tham). The latter signed a letter dated 11 September 1995 on the appellant's behalf agreeing to pay the respondent a two percent commission in respect of the sale of the said land. However, after the execution of the sale and purchase agreement, the appellant refused to pay the said commission.

Accordingly, the respondent commenced an action to recover the amount of RM37,000 as commission owed for services rendered by the respondent as estate agent in effecting the sale of the appellant's land.

It was the contention of learned counsel for the appellant that it never made the promise to pay any commission to the respondent as Tham was never appointed as their agent. The managing director of the appellant gave evidence that the appellant only appointed Azlan as its agent in the transaction as Tham was only employed as the person in charge of the appellant's accounts.

The only issue before us was whether Tham acted as agent of the appellant in the transaction. The learned Sessions Court Judge was of the view that only Azlan acted as the appellant's agent and that there was no evidence that the appellant had authorised Azlan to appoint a subagent or to pay any commission. Further, if he did, Azlan was acting beyond his agency and his actions did not bind the appellant.

On appeal, the learned High Court Judge found otherwise. He held that Tham was the appellant's agent and her actions bound the appellant for the following reasons:

(a) it was not in dispute that Tham was employed by the appellant as the person in charge of its accounts _ consequently anyone with dealings with the appellant would regard Tham as an employee of the appellant;

(b) it was also not in dispute that Tham was present at the negotiations between the purchaser and Azlan and there was nothing on record to indicate that Tham's presence at the negotiations was objected to by anyone including Azlan;

(c) the negotiations took place in Azlan's office which is in the same building as the appellant _ it could therefore be assumed that Tham was representing the appellant as otherwise why should she be there?

(d) there was no allegation of fraud committed by Tham _ in fact she signed the letter with the appellant's chop on it agreeing to pay the disputed commission.

Consequently, the learned High Court Judge, in holding that Tham was the lawful agent of the appellant, allowed the respondent's appeal with costs.

Before us, learned counsel for the appellant argued that the Sessions Court had made a finding of fact that there was no agreement for a commission and accordingly, there was no substance in the respondent's claim for such. Further, Tham was not called as a witness as she could not be traced and the original of the relevant letter for commission was not produced. In that regard, the learned Sessions Court Judge had ruled it to be inadmissible.

Learned counsel for the respondent submitted that the managing director of the appellant had told the court that Tham was in charge of sales and that both Azlan and Tham were present at the negotiations with the respondent. The agreement to pay the disputed commission, she added, was made by the appellant through the letter and accordingly, the sale had proceeded to its full conclusion.

It is pertinent to reproduce the relevant letter:

ASIANA PROPERTIES

Registered Real Estate Agents

Brickfields

50480 Kuala Lumpur

Tel: 03-2749571

11th September, 1995 2747812

Fax: 03-2737201

Date:

Ms. Tham Lee King,

M/s Harun Idris, Yeoh & Partners

5th Floor, Wisma Dato' Dagang

J