Azmi LP:

The two parties executed two agreements which may be referred to respectively as the "sale agreement" and the "building agreement". Under the sale agreement the defendant, a developing company agreed to sell a plot of land to the plaintiff for $30,000 payable in instalments which at the date of the suit, had been paid in full. Under the building agreement the defendant agreed to build a dwelling house on the said land for $49,000 payable in six progress payments, each to be made when demanded by the defendant. No time was fixed for the erection of the house because cl. 3 of the building agreement provides that "The company (i.e. the defendant) shall complete the erection of the said dwelling house as soon as possible."

At the date of the suit the plaintiff had paid all progress payments on the building agreement except the last two, for which however, the defendant had not made any demand. It had not done so, because it had not completed the erection of the house due, according to it, to some difficulty it had with its building contractor. The plaintiff wanted to have possession of the uncompleted house in order to complete it himself. He thereupon asked for specific performance of the sale agreement; in other words, he asked for an order of Court that the land be transferred to his name.

The learned Judge made an order in terms of the statement of claim because he held the view that the two agreements were distinct and severable and he declined to accept the defendant's contention that there was a triable issue or that there was a difficult question of construction involved. He also came to the view that there was no express provision in any of the two agreements which recite that the transfer of the title, after full consideration has been paid, shall still be subject to payment in full of the building agreement. The defendant admitted it could not complete the erection of the house because of the difficulty it found with its own building contractor though the plaintiff had been ready and willing to pay the last two instalments for the house.

Before us it was argued that the defendant had a good defence to this action on the merits or was otherwise entitled to defend in the same. In the first place it was argued that the learned Judge was wrong in holding that the two agreements were distinct and severable This would involve question of construction. In support certain provisions of the two agreements were drawn to our attention. Under cl. 2 of the sale agreement it was provided that vacant possession of the said land shall be given to the purchaser after payment of all the instalments payable pursuant to the provisions of the said building agreement and the sale agreement. On the other hand the plaintiff maintained that there was nothing in the two agreements that restricted the transfer of the land to the plaintiff after full payment of the price of the land and cl 2 of the said agreement merely referred to vacant possession and not to title. It was therefore urged on behalf of the plaintiff that since the land had been fully paid for, the defendant was therefore a trustee for the plaintiff and in the absence of provisions in the agreement to the contrary, the vendor must transfer the land to the purchaser. On behalf of the defendant it was also urged that apart from the question of construction of the agreement there was also the question of frustration to be considered.

Order 14A which deals with summary judgment in an action for specific performance provides that the plaintiff may apply to the Court or a Judge for judgment by affidavit in which he verifies the cause of action and states his belief that there is no defence to the action and the Court may thereupon give judgment unless the defendant satisfies that he has a good defence to the action on the merits or discloses the facts sufficient in the opinion of the Court or a Judge to entitle him to defend.

As a general rule where a defendant sho