Gopal Sri Ram JCA:

[1] We heard this appeal on 20 November 1995, and, at the conclusion of oral arguments, directed Counsel to put in written submissions. Our decision and the reasons therefor now follow.

[2] The facts relevant to this appeal may be stated thus.

[3] On 29 November 1991, the appellant entered into an agreement with the respondent under which the former agreed to construct 260 units of houses for the latter. As each phase of construction was completed, the appellant handed to the respondent certificates of completion of the particular phase. The respondent was to pay to the appellant the sum shown on the certificate.

[4] According to the appellant, the respondent defaulted in making payment on three certificates, namely, certificates 5, 6 and 7. So, on 16 March 1993, it commenced proceedings in the High Court at Penang, claiming from the respondent a sum of RM285,474.30. The respondent entered an unconditional appearance and, on 12 April 1993, delivered its defence. The appellant, by a summons dated 17 June 1993, moved for summary judgment. That summons was never heard because, at some point in time after the summons was filed, the parties agreed that the dispute