Inter-Part Moots: Dean Challenge Trophy 2010 - Clarifications No.1

These are clarifications to questions posed by Zuraini Ali Musa. The questions are in the black font, whilst the clarifications are in purple.

1. What is the terms, conditions, and exclusions of the restaurant's wi-fi?

The following are Mamak Shy's Bistro terms and conditions for use of the wi-fi services:

1. THE OBLIGATIONS OF MAMAK SHY'S BISTRO

1.1 We will use our reasonable endeavours to make the Service available 24 hours a day, however we will not be liable if for any reason the Service is not available at any time or for any period. Access to the Service may be suspended at any time. If you require any assistance in relation to the Service, you should contact Hotspots 24hr guest support.

1.2 In order to gain access to the Service, you may be required to provide us with certain personal information. We will use such personal information in accordance with relevant data protection legislation. You warrant and undertake to us that all of the personal information you provide is complete and accurate. We will not disclose any personal information which is provided by you to any third party without your permission, other than (i) to any sub-contractors or agents engaged by us to provide any support or administration, facilities management or similar services (subject to such sub-contractors and/or agents undertaking to keep such personal data confidential), (ii) to any company or organisation to which we transfer our responsibilities to provide the services and products to you or (iii) where required by law or made in connection with legal or regulatory proceedings.

2. YOUR OBLIGATIONS

2.1 You will pay the fees due in connection with the Service in accordance with the fee schedule published by us from time to time. We reserve the right to increase or decrease fees for the Service at any time and from time to time.

2.2 You will keep confidential any access codes or passwords provided to you in order to access the Service, and will not disclose them to any other person for any reason. You will be responsible for any loss that arises from you losing, misusing or otherwise disclosing any such access codes or passwords. If you lose any such access codes or passwords, you should contact the Bistro's wi fi technical support immediately.

2.3 The Service is intended to allow you to access the internet in order to use, amongst other things, the worldwide web, e-mail, messaging services and chatrooms. You undertake to us that your behaviour while using the Service will be lawful, honest and proper. Without prejudice to any other provision of this agreement, we may terminate your use of the Service at any time without notice if we become aware of any behaviour that has a negative impact on our equipment or network or the use by other customers of our equipment or network or the internet in general, or which damages, or has the potential to damage, our reputation or standing.

2.4 Without prejudice to the generality of paragraph 2.3 above, you may not:

2.4.1 use the Service for any illegal purpose;
2.4.2 access or attempt to access the Service via more than one device;
2.4.3 access or attempt to access the Service provided to any other customer;
2.4.4 use the Service in such a manner as to host a web or other server, send or facilitate the sending of bulk e-mail or collect third party personal data without appropriate consent;
2.4.5 exceed the download limitations relevant to the particular period of use by you; or
2.4.6 resell, or attempt to resell, the Service to any third party.

3. BREACH OF THE AGREEMENT

We shall investigate any suspected breach of the agreement by you, and reserve the right to take such action as we, in our sole discretion deem appropriate, including suspension or withdrawal of the Service with immediate effect and without notice to you.

4. DISCLAIMER

4.1 You acknowledge that your use of the Service is at your own risk. The Service is provided on an "as-available" basis, and to the fullest extent permitted by law, we hereby exclude all and any warranties or conditions of any kind, whether express or implied, in respect of the Service and any content or data obtained or downloaded from it. Without prejudice to the foregoing generality:
4.1.1 we do not warrant that the Service will be uninterrupted, timely, secure or error-free at all times or will meet your requirements; and
4.1.2 we are not responsible for the security, integrity, accuracy or completeness of any information that you transmit or receive while using the Service.
4.2 The disclaimer under this paragraph 4 is without prejudice to your statutory and other rights as a consumer.

5. LIABILITY

5.1 Nothing in this agreement shall exclude or limit your or our liability for death or personal injury.
5.2 Subject to paragraph 5.1, we shall not be liable to you in contract, tort or otherwise arising in connection with this agreement for any economic losses (including, without limitation, loss of revenues, profits, contracts, business or anticipated savings), any loss of goodwill or reputation, any special, indirect or consequential losses or any destruction or loss of data.
5.3 Our liability to you shall be restricted to the amount of fees you have paid to us in connection with the services. If no fees have been paid then our liability is effectively limited to zero Ringgit.
5.4 If any part of the Service is not available to you through no fault on our part or where the failure, suspension or withdrawal of the Service is beyond our reasonable control, we shall not be obliged to pay any compensation to you. If the Service is not available to you due to any failure on our part, we may, at our sole discretion, re-imburse you in respect of an appropriate proportion of the fees you have paid which relate to that period of unavailability of the Service, if you have paid for such services.
5.5 You will indemnify us against all and any losses or claims arising from any breach of the agreement by you, and against any claims or legal proceedings arising from your use of the Service which are brought or threatened against us by another person.

6. GENERAL

6.1 We reserve the right to amend this agreement at any time.
6.2 You acknowledge and agree that all intellectual property rights (including, but not limited to copyrights (including rights in software), trade marks, database rights, patents and inventions) in and relating to the Service are owned by us and our licensors or contractors. Nothing in this agreement operates to transfer any such intellectual property rights to you.
6.3 We reserve the right to assign or sub-contract any of our rights and obligations under this agreement without notice to you.
6.4 If any provision of this agreement is found to be unenforceable by a court of competent jurisdiction, the other provisions will nevertheless remain in full force and effect.
6.5 This agreement is governed by the laws of Malaysia and the parties hereto submit to the non-exclusive jurisdiction of the Malaysian courts, and if there were to be an appeal, to the jurisdiction of the Moot Court of Appeal UiTM.
BY CLICKING ON THE LOGIN BUTTON ABOVE YOU WILL BE DEEMED TO HAVE READ, UNDERSTOOD, ACCEPTED AND AGREED TO BEING BOUND BY THE FOREGOING TERMS AND CONDITIONS OF USE.

2. Can we raise new ground of appeals?

No. The appellant has filed an appeal on the grounds given in the notice of appeal. You are to adhere strictly to those grounds of appeal.

3. Brief background of Mr. Toopie Aduslalu.

Mr Toopie Aduslalu's background has been provided by Haryanti Mansuri J in her judgment.

4. when do we have to exchange the bundle of authorities?

There will be no exchange of the bundle of authorities. Just prepare one for the bench, one for your opponent and a suitable number for your own personal reference. On the day of the moot, just hand a copy to the bench and hand over another copy to your opponent. You may retrieve the copies after the moot.

5. Is the doctrine of stare decisis applicable in this case?

As the case was litigated in a High Court in Malaysia and will go before an appellate court in that same jurisdiction, all the relevant laws of Malaysia are applicable, including the principle of 'stare decisis'.

6. Is Aini Lambat a part time employee or full time employee?

Aini Lambat is a full time employee of Mamak Shy's Bistro. She has been working there since last year. Previously, she was employed by Diva Unlimited Sdn Bhd, a company specialising in modelling shoes.

7. How old is Mr. Toopie Aduslalu?

Mr Toopie Aduslalu is past the age of majority. His exact age is not relevant to the legal issues at hand.

Law Asia Moots 2010: Day 3 - Final Rounds

Congratulations to Zarif, Arina and Hadi who qualified for the final round. Although you did not win the competition, I am very proud of you. Who would have thought that it would be the 'bilis' in the moot team that would go so far.

Congratulations also to the other UiTM teams that did not make it past the preliminary rounds. You live to do battle another day. It will be a different story at Jessup. The important thing here is that you've managed to squeeze in more mooting experience and as a result you will be a better person. Remember the prophetic words of Raphael Tay, it is not the winning that counts, it is whether you fulfill your potential. All of you are in the process of doing that and I look forward to seeing you celebrating in victory in a moot competition not too far in the future.

For the record, the winning team was Taylor's University College. Congratulations, you are worthy champions and will make Malaysia proud at the international competition. Nabila Kamarudin, you are an amazing mooter and really unlucky not to win the best mooter prize when you finished runner-up. ATC was the first runner-up and will also be joining Taylor's at the international competition. In third place was KDU, followed by IIUM and UiTM respectively.

The best mooter prize was won by Nora Huseinovic. Congratulations! You are the most systematic mooter that I have seen in the last five years and the clarity of your arguments deservedly won the hearts and minds of many judges. Special mention must also be made of the following UiTM mooters who finished in the top ten of the mooters rankings:

Azad bin Akbar Khan - 3rd place.

Shairil Farhana Ruslan - 6th place. Really fantastic performance considering the fact that you only had a few days to train and had to fly back from South Korea just the day before the competition.

Mohd Zarif Shafiq - 7th place. An amazing performance, as you are only in your first year (having just started part 2 of BLS). I have heard through the grapevine that you now have a fan club as you have been described as having that 'WOW' factor.

Law Asia Moots 2010: Day 2 - Preliminary Rounds

UiTM sent four teams for the competition. The composition of the teams were as follows:

Team 1 (M2070)
Muhammad Danial Bin Mohamad Nizam – Bachelor of Legal Studies (Hons) Year 3
Azad Bin Akbar Khan – Bachelor of Legal Studies (Hons) Year 3
Alia Sumayyah Bt Amran – Bachelor of Legal Studies (Hons) Year 2

Team 2 (M2090)
Muhammad Khairil Bin Khalid – Bachelor of Legal Studies (Hons) 2
Izzat Asyraf Bin Zamri – Bachelor of Legal Studies (Hons) 3
Siti Khadijah Bt Hassan Hasri – Bachelor of Legal Studies (Hons) 2

Team 3 (M3040)
Mohd Zharif Shafiq Bin Badrul Hisam – Bachelor of Legal Studies (Hons) Year 1
Arina Bt Mohd Fairin Lum – Bachelor of Legal Studies (Hons) Year 2
Muhammad Nurhadi Bin Zainol – Bachelor of Legal Studies (Hons) Year 2

Team 4 (M3010)
Auzan Syaidi Bin Abdul Lateh – Bachelor of Legal Studies (Hons) Year 2
Shairil Farhana Bt Ruslan – Bachelor of Legal Studies (Hons) Year 3

(Note: Hilwa Nazifa Bt Bustam – Bachelor of Legal Studies (Hons) Year 3 did not moot for this Law Asia competition as she withdrew from the Team M3010 just a couple of weeks before the competition).

By the end of the day, after all the scores were added up, Team 3 consisting of Zarif, Arina and Hadi qualified for the finals. The other teams that qualified for the final were Taylor's, KDU, UIA and ATC.

There are just too many rounds / ties to write about, and there will not be enough space here. Anyway, here are some of the 'juicy' details:

One team was actually sent into the wrong room and mooted against a team that they were not scheduled to meet. Luckily, no harm was done and all the other team coaches agreed to just proceed despite this irregularity. This is definitely in the spirit of the Law Asia competition. Unlike the Jessup national rounds, there was no petty squabbling over rules and lodging a complaint at every perceived minor infringement of the rules. Bravo to all the team coaches for being civilized and the mooters for exercising restraint.

Law Asia Moots 2010: Day 1 - Registration and Checking In

The team booked a bus from 'unit kenderaan' to travel to the Kuala Lumpur Regional Centre for Arbitration (KLRCA). Just as the bus was about to get on the Federal Highway, the clutch froze up and the smell of something burning permeated the bus. The driver stopped and called for a replacement bus. Ironically, the clutch was replaced just recently and unfortunately had to break down. The replacement bus arrived after a long wait. It was a small rickety mini bus and the whole team hopped on board.

Just as the mini bus reached the Batu Tiga toll along the Federal Highway, the driver received instructions to stop the bus. Apparently, the bus was old and probably could not take the stresses of being driven into Kuala Lumpur. A third bus was sent to pick up the team. This time, a UiTM stage bus was sent to rescue us. But his time, we had already missed the registration session. Miss Ummi and Puan Mazlina who wisely took the option of driving there in the comfort, luckily managed to get the organisers to waive registration for the team. By the time we reached KLRCA, it was 5.30 pm. It had taken us three hours to get from Shah Alam to Jalan Conlay.

After a brief word with Raphael Tay, the charismatic organising chairman of the Law Asia Moot, the team made its way to its base of operations, Citrus Hotel, situated along Jalan Raja Laut. The rooms in the hotel are 'cosy', i.e. you can substitute that with the word 'small' here. The service at the Squirrel Cafe was really slow and the food, over-priced for a hotel of this stature. Just a short note to myself, 'do not have dinner at that place again'.

The rooms were allocated as follows:
513 - Miss Shairil Farhana and Miss Arina Lum.
512 - Pn Mazlina Mahali and Miss Ummi Hani.
511 - En Muhammad Danial and En Azad Akbar Khan.
510 - Miss Siti Khodijah Hassan and Miss Alia Amran.
405 - En Muhammad Nurhadi and En Auzan Syaidi
315 - Your's truly and En Mohd Zarif Badrul
309 - En Izzat Asyraf and En Muhammad Khairil Khalid

Dean's Challenge Trophy 2010: Inter-Part Moot Question

DEAN’S CHALLENGE TROPHY 2010

MOOT QUESTION


The following is a copy of Haryanti Mansuri J’s judgment in the case of Toopie Aduslalu v Mamak Shy’s Bistro Sdn Bhd (Civil Suit No: 210-2009) (Transcript 23 July 2010)


IN THE HIGH COURT OF MALAYA, SHAH ALAM

CIVIL SUIT NO: 210-2009

BETWEEN

TOOPIE ADUSLALU … PLAINTIFF

AND

MAMAK SHY’S BISTRO SDN BHD … DEFENDANT


JUDGMENT


HARYANTI MANSURI J


The Facts

[1] Mr Toopie Aduslalu, a citizen of the Federated Republic of Cheapmonk, was on holiday in Malaysia early last year. He had just attended a conference in Kuala Lumpur and presented his paper on ‘The True Nature of Gravity: A Study of Falling Acorns and Why Einstein General Theory of Relativity is Wrong’ at the International Theoretical Physics Conference 2009. Whilst visiting Shah Alam, he stopped at Mamak Shy’s Bistro for lunch.

[2] Mamak Shy’s Bistro is owned by Mamak Shy’s Bistro Sdn Bhd. The majority shareholder of this enterprise is Miss Shyla Funhaha Rusa. She is known to her customers as being very introverted and frequently too embarrassed to do anything in public. Her famous quip is: ‘I let my food do the talking’. Mamak Shy’s signature dish is venison curry, made from a recipe that Miss Shyla learnt from her father but she has had to water down his recipe for commercial purposes as the original was just too darn hot for most Malaysians.

[3] I would like to thank both the Plaintiff and the Defendant for contributing to the cost of a ‘bungkus’ of Mamak Shy’s famous ‘nasi briyani’ with venison curry and pickled vegetables. It is important for a judge to put the dispute in context by getting the experiencing the actual taste and smell where the incident complained of took place.

[4] When Mr Toopie Aduslalu had lunch at Mamak Shy’s Bistro, he ordered its signature dish and a cup of coffee. It was prepared by the head chef, Mr Lazat Babab, who brought the plate personally to Mr Toopie Aduslalu. As he was tucking into the juicy and tasty morsels on his plate, he noticed a sign just behind the cashier’s counter which stated: ‘Free wi-fi at Mamak Shy’s Bistro. Subject to the restaurant’s usual terms, conditions and exclusions’. When Mr Toopie Aduslalu asked the cashier, Mr Mazin Laidan, about the service, he was told: ‘Just read the instructions and then log in. The ID is Arif Qafir, and the password is Ojanda666. You can find the terms and conditions on our website after you log in’.

[5] As Mr Toopie Aduslalu launched his Safari browser, he was directed straight to the log in page at . He typed in the ID and password that he was given, but was not given direct access to the Internet. Instead he was first directed to a page titled ‘Friends of Mamak Shy’. Here, there were instructions to first time users to register their names, identity card number or passport number, mobile number and home address. When Mr Toopie Aduslalu asked a waitress, Aini Lambat, as why Mamak Shy’s Bistro needed so many personal details, she answered that it was ‘company policy, so please do not complain. I am just the messenger, not the problem’. Mr Toopie Aduslalu then angrily replied ‘not only are you late with the coffee I ordered, you are rude as well. So where is my coffee?’

[6] Ten minutes later, Miss Aini Lambat served the coffee, and a complimentary cup of ‘Teh Alia’, Mamak Shy’s signature ‘spicy ginger tea’. Mr Toopie scowled at her and said: ‘You cannot even get my order right. I ordered coffee and you also have to bring along a cup of smelly tea’. Miss Aini Lambat lost her temper and emptied both cups onto his laptop. Mr Toopie Aduslalu then left the bistro in a huff and threw an RM100 note on the table.

[6] Later that night, Mr Toopie Aduslalu carefully dried the laptop with a hair-dryer at Hotel Immu. When was working on his laptop, he discovered that it kept shutting down and rebooting itself. He could not get access to important data stored inside which was needed to present a second paper to fellow physicists at the conference. He called the hotel’s concierge for help and was directed to a company, Decoder Sdn Bhd, that provided 24 hours services for those with laptops in distress. Miss Codee, a technician from the company dropped by the hotel to examine the laptop. After running diagnostics, with the ‘Para Amore’ programme, Miss Codee concluded: ‘Your laptop is sticky. There is a lot of dried up liquid all over the place. I have tried to remove all the relevant parts and clean it. I cannot guarantee that it is going to work properly again. By the way, you probably also picked up a Myhali-hali Trojan when you logged into the bistro’s wi-fi system. Your system is now compromised’. When the laptop was switched on, it would not reboot.

[7] Miss Codee then charged Mr Toopie Aduslalu RM5,000 for her services. He fainted when he saw the bill and knocked his head as he fell to the ground. The doctor on duty at Hotel Immu, Dr Honey Berry, treated Mr Toopie Aduslalu for concussion and stitched a gash on the back of his head. The medical bill was RM1,500.

[8] In order to get a copy of the data stored on the laptop, Mr Toopie Aduslalu had to use a special courier to send the laptop to its manufacturer so that the information stored on the hard disk could be read and copied after a forensic process was carried out on the data storage system. I understand that the bill was in US dollars but I believe that the equivalent cost here is RM7,000.


Mr Toopie Aduslalu’s claim for breach of contract

[9] Customers expect to be treated properly when they visit a bistro or restaurant, just like a visit to the hotel when one is on holiday. Miss Aini Lambat’s behaviour as an employee of the Mamak Shy’s Bistro was unforgivable. A person in the service industry is not allowed to insult a customer by telling him not to complaint. This country is a democracy, everybody has the right to make their displeasure known, especially when Mamak Shy’s Bistro is charging an exorbitant sum of RM50 for its famous ‘nasi briyani’ with venison curry and pickled vegetables. The higher the price payable for a meal, the greater is the expectation of the customer. Mr Toopie is entitled to a quantum of damages which reflects the failure of Mamak Shy’s Bistro to discharge its contractual duty of providing a pleasurable dining experience to its customer. This is the core contractual obligation of a restaurateur to its customers. The quantum of damages for this is to be assessed by the Senior Registrar, Mr Hadee Yahkop after this trial.

[10] A diner who uses the wi-fi services at a restaurant or bistro is also entitled to expect that the service is safe for use. Although this is not the primary business of the bistro or restaurant, it is under a contractual duty to provide a service that is free from viruses and trojans. A customer is attracted to a restaurant because of such services and had a contractual right to expect that the service is safe for use. For this breach, I am allowing Decoder Sdn Bhd’s bill for RM5,000 and any other losses that flow from the damage caused by the Myhali-hali Trojan to the laptop, such as the cost of purchasing an equivalent new laptop at RM7,000 as well as the technical forensics bill for that same amount.


Mr Toopie Aduslalu’s claim for trespass to goods

[11] No person is allowed to violate goods that belong to another. When Miss Aini Lambat lost her temper and emptied both cups onto the laptop, this was a legal wrong commit towards goods belonging to Mr Toopie Aduslalu. There is no legal justification for this act, not even if a customer was rude to a waitress. Miss Aini Lambat should not act like a prima donna and learn to act more courteously towards people who are in fact ensuring that she still has a job at the restaurant. Even though she did not physically touch the laptop, the drinks that she poured were an extension of her arms that unlawfully trespassed on the laptop.

[12] I have awarded the cost of the laptop, the technical forensic’s bill and Decoder Sdn Bhd’s bill under the above head of contractual damages, so I will not allow the plaintiff to profit twice over from this. Even if the Mr Toopie Aduslalu’s contractual claim against Mamak Shy’s Bistro is in the unlikely event defeated, both those items of damages can also be claim as damages for this tort. However, I will award the medical bill of RM1,500 under this claim as this was a foreseeable loss that was inflicted on Mr Toopie Aduslalu. There is a clear chain of causation here. If the drinks were not poured over the laptop, then he would have had to engage Miss Codee’s services. Then if Miss Codee did not have a bill to show him, he would not have fainted and gashed his head, thus leading to the medical treatment.


Conclusion

[13] The Defendant is liable for all of the Plaintiff’s losses and injuries either in contract or in tort. I hereby dismiss the Defendant’s defence and award cost to the Plaintiff. If the Defendant is not satisfied with my decision, I suggest that it appeals directly to the geniuses who sit on the Moot Court of Appeal UiTM.

[14] For the record, the court also likes to takes judicial notice of the fact that Given Chee Shoes worn by Miss Aini Lambat are very nice and should nominated for an award.


Advocates appearing in court:
For the Plaintiff … Miss Khaleeda Kholid (Khaleeda, Shake, Lind and Partners)
For the Defendant … Mr Rus Alan (Van Neeson, Syabas and Associates)


______________________________________________________________________________


On 30 July 2010, Mamak Shy’s Bistro Sdn Bhd filed an appeal with the Moot Court of Appeal UiTM. The Moot Court of Appeal UiTM has jurisdiction to hear appeals from the High Court of Malaya under the Moot Court of Judicature Act 1964.


IN THE MOOT COURT OF APPEAL UITM

CIVIL APPEAL NO: 30-07-2010-10

BETWEEN

MAMAK SHY’S BISTRO SDN BHD … APPELLANT

AND

TOOPIE ADUSLALU … RESPONDENT


The following were the Appellant’s grounds of appeal:

1. There is no contractual duty on a bistro or restaurant to be courteous to its client. A dining contract is not like a holiday contract. The purpose of the dining contract is to get food. We have provided food which the customer has paid for.

2. A customer who uses wi-fi services at a bistro or restaurant should use his own anti-virus programmes for protection. There is no contractual duty to beef up the wi-fi system for a customer who has an anti-virus system that cannot even give proper protection against the common Myhali-hali Trojan.

3. There was no trespass to Mr Toopie Aduslalu’s goods. Miss Aini Lambat did not even touch the laptop. Drinks that were poured cannot be said to be an extension of her arms. Even if it were, she was entitled to protect her honour after being insulted by a nasty customer. Her actions were completely justifiable.

4. Even if there was trespass to goods, the medical bill could not be claimed as damages because it was too remote.


Further Instructions to the Participants:

1. Please send you written request for clarifications to:

Conventional mail:

Assoc Prof Dr. Irwin U.J. Ooi
Malaysia Institute of Transport (MITRANS),
Level 1, Old Engineering Building,
MARA University of Technology (UiTM),
40450 Shah Alam.

E-mail:

dr_irwinooi_uitm@yahoo.co.uk

2. Clarifications will be published within three days after the receipt for a request for clarifications on the UiTM Moot Club Blog and/or Facebook.

3. The last date for clarifications is Friday, 13 August 2010.

4. Memorials must be submitted by Friday, 20 August 2010.

Maritime Moots 2010, Sydney - Postscript

When yours truly was keeping in touch with the moot team in Sydney via Skype, those 'naughty' kids were hiding something. It was only when they returned and we met at the moot court that they unveiled the big surprise. The moot team won the 'Individual Achievement Award', sponsored by Roger Derrington. This is the first award / prize won by UiTM in an international moot competition. Congratulations to the team, I am very proud of you. Another big thank you to the competition organisers and sponsor of the prize for recognising the team's hard work and good performance at the competition. I hope that the Faculty of Law, UiTM, will frame that copy of the certificate and proudly exhibit it at the faculty's lounge in Cempaka One.