Mohamed Dzaiddin bin Haji Abdullah SCJ:

This is an appeal from the decision of the Magistrate, Georgetown given on 20 January 1987 who held that the plaintiffs had established a reasonable cause of action against the defendant in their amended statement of claim.

The plaintiffs' claim in the action is for damages for late delivery of vacant possession of a unit of flat known as Flat No. 17.6, Macallum Street Ghaut Slab Block GT7 (the said flat) which they purchased from the defendant for RM62,000. The parties executed a sale and purchase agreement on 25 October 1982. It is common ground that the said agreement was silent regarding the date of delivery of vacant possession. Nonetheless, the delivery of vacant possession of the said flat was finally made by the defendant to the plaintiffs on 22 1 January 1986 which was more than 3 / years after the 2 execution of the sale and purchase agreement.

By their amended statement of claim, the plaintiffs averred in paragraph 4 that vacant possession of the said flat must be delivered within a reasonable time. In this context, the plaintiffs relied on the 24 months' period under the Housing Developers (Control and Licensing) Regulations 1982 (the Regulations) as a reference to determine the issue of reasonable time. Hence, by paragraph 5, the plaintiffs alleged that, in consequence of the averment in paragraph 4, the defendant had failed to deliver vacant possession within a reasonable time which was 455 days exceeding the reasonable time period of 24 months. In the premises, they claimed to have suffered loss and damage.

The defence of the defendant was that the amended statement of claim disclosed no cause of action and they prayed that the plaintiff's action be dismissed with costs.

In the appeal before me, the same point was taken up by Encik Lim Ewe Hock, aside from two other grounds as stated in the memorandum of appeal. So, the crucial issue in this appeal is quite simple and straight-forward, which is, whether the amended statement of claim discloses a reasonable cause of action.

A reasonable cause of action means a cause of action with some chance of success when only the allegations in the pleadings are considered (per Lord Pearson in Drummond Jackson v. British Medical Association [1970] 1 WLR 688). Here, paragraph 4 merely averred that the delivery must be made within a reasonable time which was to be determined by analogy to the Regulations. Paragraph 5 further alleged that the defendant had failed to deliver vacant possession within a reasonable time. Thus, have the two paragraphs of the amen-ded statement of claim disclosed a reasonable cause of action to enable the plaintiffs to succeed in their claim for damages? In my judgment, there is none.

First, it is common ground that the written agreement did not fix any time for the performance of the contract. So when no time is specified, the contract must be performed within a reasonable time, s. 47 Contracts Act 1950 . What is "a reasonable time" is, in each particular case, a question of fact (ibid). However, the plaintiffs cannot arbitrarily fix the time. It must be reasonable having regard to the state of things at the time when notice was given. In Stickney v. Keeble [1915] AC 386, the House of Lords held as follows:

Where in a contract for the sale of land the time fixed for completion is not made of the essence of the contract, but the vendor has been guilty of unnecessary delay, the purchaser may serve upon the vendor a notice limiting a time at the expiration of which he will treat the contract as at an end, and in determining the reasonableness of the time so limited the Court will consider not merely what remains to be done at the date of the notice, but all the circumstances of the case, including the previous delay of the vendor and the attitude of the purchaser in relation thereto.

Secondly and more importantly, the amended statement of claim has failed to plead that the plaintiffs have given no