Raja Azlan Saha J:

The plaintiff is a building contractor carrying on business under the name of Yong Mok Hin Construction, Kuala Lumpur. The defendants are a limited company hereinafter referred to as the defendant company. The plaintiff claims $13,800 representing materials used and damaged by the defendant company while erecting their machinery in the factory; $40,785 for the alteration of the two original stores to three stores at $13,595 each; $36,000 as representing the fifth progress payment; and interest at 60 per annum from 24 December 1964 to date of realisation, and costs. Items (d), (e) and (f) have been abandoned.

The defendant company denied liability. They alleged that the work done must be taken to be work done under the contract, that is, for the contract price of $187,500, and that the amount sued must be taken to be the balance due under the said contract. They further alleged that they never agreed or otherwise became liable to pay for the said work or any paint thereof on the grounds following:

(a) The said works were not done or completed by 8 February 1964 which was a condition precedent as time was of the essence of the contract.

(b) The plaintif