DIL2237 DISPUTE RESOLUTION

SEMESTER 2 2021/2022

GROUP ASSIGNMENT

CASE REVIEW 1

PREPARED BY:

1. NUR IZZATI NADIA BINTI AHMAD KHAIRI (DIL201025)

2. MUHAMMAD IRFAN BIN MUHAMMAD FEIZAL (DIL193015)

3. NURBATRISYIA AMISYA BINTI MOHD NAZIB (DIL193038)

4. SITI NURUL FATIHAH BINTI ZAIDI (DIL193045)

5. MUHD HAFIQ ERFAN BIN ABDULLAH (DIL193006)

6. SYAZWAN AIMAN BIN YOSRI (DIL193019)

PREPARED FOR: MADAM NORULJANNAH ABDUL RAHMAN

SUBMISSION DATE: 3 FEBRUARY 2022

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Instruction(s): Answer the question provided below.

Sherina and Rosman entered into a contract for tenancy. Rosman wanted to rent Sherina’s
house. The terms and condition are stated in the tenancy agreement and both parties agreed
and sign the tenancy agreement. Rosman is not satisfied with Sherina due to the Sherina’s
failure to pay maintainance of the house and the JMB wanted to sue Sherina. JMB has sent a
notice of demand to the premis rented by Rosman. Due to that Rosman went out from the
house and did not pay the rent. He feels so embarrassed due to the act of Sherina. Rosman
file a summon to Magistrate Court against Sherina to terminate the tenancy agreement and
asked for the deposit of RM10,000.00 to be refunded by Sherina.

The Magistrate had directed Rosman and Sherina to go for a Mediation. Mediation is a process
in which disputing parties involve an impartial third party, the “mediator” who facilitates
parties’ attempts to arrive at a settlement and a consensual agreement towards resolving a
dispute.

As the Solicitors for Rosman (Plaintif) and Sherina (Defendant), advise them accordingly.

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INTRODUCTION

As is well known, in this case, Rosman reclaimed his RM10,000.00 deposit from Sherina
and petitioned the Magistrate's Court to terminate their agreement. Rosman initially wanted
to rent Sherina a house, but Sherina failed to pay home maintenance, which made Rosman
very unhappy. Then, JMB would like to claim Sherina by sending a notice of request to
Rosman's rented premises. Following that, the Magistrate directed Rosman and Sherina to
engage in "mediation." This mediation is one of the requirements of Malaysian alternative
dispute resolution. Alternative dispute resolution is a catch-all term for the methods that
parties can use to settle their disagreements outside of court. Mediation is a process in which
various parties involve unbelievable third parties in terms of alternative dispute resolution
(ADR). In this case, "mediator" facilitates party trials in order to reach settlement and dispute
resolution agreements.

Issue 1:
Whether there is an intention to create a legal relation between Rosman and Sherina.

Law 1:
According to section 2(h) of the Contracts Act states that an agreement that is enforceable
by law is a contract. In order to fulfill the valid contract, it must be followed by four (4)
essential elements which are proposal (offer), acceptance, intention to create a legal relations
and consideration.

Application 1:
Based on the situation that has been faced by Rosman, they may be have fulfilled all four
elements that have been allotted to make the contract that has been made with Sherina is
valid. This can be seen through the actions of Rosman who has agreed to an agreement by
paying a deposit in advance to Sherina for the purpose of renting the house owned by Sherina.
He, Rosman then asked for a refund amounting to RM10,000.00 as the deposit that should
be refunded by Sherina.

Issue 2:
Whether Rosman may terminate his contract with Sherina for reason of misrepresentation.

Law 2:
As referred to section 18 of the Contracts Act 1950, a misrepresentation is a false statement
made without intent or the desire to deceive the other party. It can contain two factors which
are making a false statement about a material fact that isn't known to be false. Furthermore,
there is non-disclosure of facts where a legal obligation to disclose exists but there is no desire
to deceive.

Application 2:
The situation that happened to Rosman and Sherina is a little different from the concept of
misrepresentation. This is because of an action made by Sherina, whereby she did not carry
out her responsibilities as the owner of the house rented by Rosman. Her act of failing to pay
home maintenance seems intentional.

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Issue 3:
Whether Rosman may claim for the deposit of RM10,000.00 to be refunded by Sherina due
to Sherina’s failure to pay maintenance of the house.

Law 3:
Breach of contract occurs when one of the contracting parties fails to fulfill his or her
obligations under the contract, or when one of the contracting parties makes it impossible for
the other party to fulfill his or her obligations under the contract. In this case, Rosman may
claim for the damages by the way of specific performance where specific performance can be
defined as the actual carrying out of the contract as agreed. An aggrieved party may initiate
a suit for particular performance instead of or in addition to a suit for damages in certain
circumstances.

Application 3:
Based on the situation given, Sherina agrees to engage into a tenancy agreement with
Rosman, who wants to rent Sherina's home. The terms and conditions are contained in the
tenancy agreement, which is signed by both parties. Rosman, on the other hand, is
dissatisfied with Sherina since she has not paid the house's maintenance. Rosman then
decided to leave the house and not pay the rent as he was embarrassed by Sherina's actions.
Rosman filed a summons in Magistrate Court against Sherina, requesting that the tenancy
agreement be terminated and the RM10,000.00 deposit be refunded.

Mediation Process

In general, mediation involves the following steps: pre-mediation, where parties sign a
mediation agreement indicating their desire to participate in mediation. Then there are the
preliminaries, which include an orientation to mediation and the mediator's opening comment,
in which the mediator explains the session's ground rules. A brief explanation of facts is given
to the mediators, and the parties are invited to present their cases in front of each other in
joint sessions. Caucuses are also optional; however, they are frequently used to allow parties
to express their feelings and talk freely. The mediator may be able to identify typical problems
and hidden signals during the discussion. The parties will sign a settlement agreement in front
of the mediator once an amicable solution has been achieved.

There are five (5) stages in the Mediation process. This consists of Pre-Mediation Process,
Preliminary Stage, Joint Session, Caucus (Separate Meeting) and Further Joint Meeting, and
the last is the Agreement Stage.

In the Pre-Mediation Process, which is also known as the ‘preparatory stage. This step
includes gathering, exchanging, and analyzing data. This would allow the respective parties
to seek and provide important information and documents. To enable the mediator or
mediation service to, complete disclosure may be required in the Agreement to Mediate. To
begin with, it is critical to supporting in the identification of data that must be gained and
disclosed. The second task is to promote and monitor the exchange.

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 The Preliminary Stage is the second stage of the process. The beginning phase of
mediation is also known as this level. The mediator begins by greeting the parties, assigning
their seats, and ensure that they are properly introduced. This will include brief greetings and
short discussion. Mediators will choose what name or title should be used at the meeting in
all cases. These could soothe the parties and help them build trust. The mediator will next
deliver an opening statement, outlining the mediator’s and parties’ respective roles. They will
also explain the mediation process, including the nature and steps of mediation, the secrecy
of the proceedings, the parties’ authority, and, last but not least, the ground rules of the
procedures.

The Joint Session is the third stage. The parties are then asked to present an opening
presentation of their case following the mediator’s opening statement. Each party will have
an uninterrupted opportunity to speak. The mediator may ask clarifying questions and guide
the parties in identifying the significant issues of contention. The mediator summarizes the
essential points after each party’s presentation. The mediator must be able to listen well. The
sides must be heard and understood in order to go forward, articulate their issues, and
comprehend the other side’s story. The mediator should be able to play a role in helping a
party to acknowledge the opposing side’s point of view, even if they do not agree with it.
Following the presentation, the mediator would establish common ground and offer an agenda
after taking into consideration the parties’ interests and requirements. The mediator then
summarizes the remaining matters in contention that need to be resolved, as well as areas
of agreement between the parties. Following the exchange of perspectives, the mediator helps
the parties to establish and explore viable choices for resolving the conflict, while maintaining
an acceptable standard of impartiality and reasonableness, and assesses the options in light
of their mutual needs and interests.

The caucus or separate meeting, which is the fourth stage, is an optional step. When
negotiations in the previous joint session approach a deadlock, the mediator usually moves
to the caucus to provide each party a private area to discuss their concerns about the subjects
under dispute. The mediator has the authority to obtain further information and discuss
confidential or sensitive matters. The mediator expands on choices while focusing on the
needs and interests of the parties. After the separate meeting, most mediations bring the
parties back together. The goal is to continue conversations, participate in final negotiating,
and finalize the agreement’s finer elements.

Lastly, the Agreement Stage. The mediator summarizes the offers and supports the
parties in drafting a settlement agreement. The accuracy of the agreement should be reviewed
by the mediators to guarantee that both parties have agreed. If the parties are unable to
reach an agreement, the mediator may urge them to make a choice based on a different
method of resolving the conflict.

CASE
A related case called Godell Parking Sdn Bhd v Majlis Bandaraya Petaling Jaya [2020] 6 MLJ
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Issue
(a) whether there was a breach of the terms of the CA by the respondent
(b) whether the CA could be terminated without prior recourse to mandatory mediation
process under cl 11.

Facts
The appellant had entered into a concession agreement with the respondent to run the
street parking collection system in the city of Petaling Jaya. Under the CA, the appellant was
required to pay a monthly rental of a certain amount to the respondent until the expiry of the
concession period. Due to the appellant’s failure to pay the monthly rentals, the respondent
issued three notices of default but was later terminated due to the appellant’s failure to rectify
the default. The appellant then filed an action against the respondent contending that the said
termination of the CA was unlawful and demanded the payment of RM21,190,530.76 as
damages due to the alleged unlawful termination. The respondent then counterclaimed for a
sum of RM5,271,390.70. The High Court judge found in favour of the respondent, hence, the
present appeal.

Held
The court held that the respondent had not breached the appellant’s exclusive right as
the sole and exclusive concession holder of the concession area pursuant. Under the CA, the
respondent’s obligation was only to offer new parking areas to the appellant subject to the
condition that the appellant was prepared and willing to commence the operation,
management and maintenance of the new areas within a reasonable time. Once the appellant
had expressed its inability to take over new parking areas, the respondent had rights to decide
on how to manage the new parking areas. Further, it would not be just to allow the appellant
after a lapse of more than six years to insist that the respondent had been in continuous
breach. Therefore, termination was lawful as the respondent had properly applied to terminate
the CA without the need to have prior recourse.

CONCLUSION

In conclusion, since there is in fact an intention to create a legal relation between Rosman
and Sherina therefore Rosman may terminate his contract with Sherina for misrepresentation
and may claim for the deposit of RM10,000.00 to be refunded by Sherina due to her failure
to pay maintenance of the house.