Buttrose J:

This action arose out of the repudiation by the defendants of their agreement to build a house for the plaintiff. The facts were that the firm of Phoenix Building Enterprise, of which the two defendants were partners, was the developer of a housing estate at Holland Heights. Their modus operandi was to sell the land and the building to prospective purchasers by two agreements - one for the sale of the land and the other for the sale of the building. In the present case the plaintiff agreed to purchase the land under the sale of land agreement for $6,000 and the building under the building agreement for $31,900.

It was provided in the sale of land agreement that in the event of the purchaser seeking to mortgage or charge the land for the purpose of financing the purchase thereof and the erection of the dwelling house Phoenix Building Enterprise as vendors would at the request of the purchaser and upon the purchaser executing a form of mortgage or charge for the purpose aforesaid, execute on the date of such mortgage or charge, an assignment of the right, title and interest to the said land and premises in favour of the purchaser.

The plaintiff paid the $6,000 for the land and also made certain progress payments in accordance with the progress of the building operations as set out in the schedule to the building agreement amounting to $9,900. The sum together with the $6,000 paid for the land represented a total of $15,900 actually paid by the plaintiff leaving a balance of $22,000 to be raised on mortgage. Reference is made to this amount to be raised on mortgage in cl 3(a) of the sale of land agreement.

In addition there were certain extras ordered by the plaintiff under a works order dated 15 October 1962, amounting to $4,913. These extras were not in dispute and were admitted by the plaintiff. What was in dispute was the time of payment for them.

The other matter in dispute arose in connection with a further nine items of extras which the defendants maintained were extras ordered by the plaintiff without their consent and consequently in breach of cl 7 of the building agreement. These nine items of extras were carried out at a cost of $1,460. The plaintiff contended that these nine items were not extras ordered by her but in fact work indispensably necessary to conform with the original terms of the contract and the plans and specifications. In other words, the plaintiff said that the defendants had deviated from the original plan and made substantial changes in the position, siting and elevations of the building from that originally agreed upon without her knowledge and consent and consequently she was entitled to have the house restored to a state or condition as similar as possible to the one she had contracted to buy and which the defendants had contracted to build for her. As such the plaintiff maintained these nine extras were sanctioned by the defendants as being indispensably necessary and involved her in no liability to pay for them.

One is tempted to inquire as to why it was that resort was not had to the speedy and simple process of a vendor and purchaser summons to dispose of these matters. This, however, was not done and protracted correspondence ensued, as contained in the agreed bundle of correspondence, to which I do not propose to refer.

Matters dragged on and it was not until early in 1964 on the arrival of Mr. LAJ Smith on the scene as the solicitor for the defendants in place of Messrs. Guok & Co. that any hard or firm line was taken and it was on 10 March 1964, that the defendants abruptly and without notice repudiated the agreement and promptly resold the property on 25 March 1964 for the same price of $37,900. The purchaser also paid, in addition, the sum of $4,913 for the extras supplied under the works order to which I have already referred.

I think it desirable to set out the defendants' letter of repudiation in full.

10 March 1964

Messrs. RCH Lim & Co.

Singapore.

Dea