Chang Min Tat J:

This action is for specific performance of an agreement to build and sell a house together with the land on which it is to be built. It is one of several against the developer.

The short facts of the case are this:

Both parties entered into a written agreement of sale. By the terms of the agreement the payments were regulated as follows:

(1) On the execution of the agreement a sum of $5,000;

(2) On the commencement of the foundation a sum of $2,000;

(3) On the commencement of brick-works a sum of $2,000;

(4) On the commencement of roof-works a sum of $2,000;

(5) On the commencement of plastering a sum of $2,000;

(6) On the commencement of painting a sum of $2,000; and

(7) On the commencement of the water and electrical installation a sum of $2,000.

These progress payments added up to $17,000. The total purchase price was $33,000, the balance of $15,000 being payable on the completion of the building.

However, at the relevant time the plaintiff had paid a total sum of $18,500 even though as is alleged in the Statement of Claim, the brick-works had just been commenced and the developer was not entitled at this stage to more than $9,000. If there had been any variations so far agreed in the methods of payment they had therefore been made for the benefit of the developer.

On the 21 November 1974 the developer addressed a letter to the plaintiff in the following terms:

We are now at the commencement of roofing and water pipe installations. We therefore shall be pleased if you will kindly forward us $10,000 towards the above shophouse within (7) days from date hereof. We are to inform you that as materials have to be bought for cash your prompt payment shall be much appreciated.

Consequent on the receipt of this letter, the plaintiff telephoned Miss. Kamala Devi, a Director of the firm and also an Advocate and Solicitor of the High Court of Malaya. What that conversation was about is a matter of some dispute.

The plaintiff said she protested that the time was not ready for the payment of the balance of $15,000 or any part thereof and definitely not for the payment of $10,000 as demanded. The developer contended that Miss. Devi was advised by the plaintiff that she had no money to pay for the shophouse. Miss. Devi then addressed the following letter to the plaintiff:

We refer you to our registered letter dated 21 November 1974 and your telephone conversation with the writer when you informed us that you have no money to pay towards the shophouse at present and that you do not intend to pay for the above shophouse for another two months. We therefore refer you to cl 19 of the Agreement dated 7 August 1972 and return herewith the $18,500 received by us from you towards the above shophouse and cancel the said Agreement."

Clause 19 of the Agreement of Sale is in the following words:

In the event of the vendors being unable to perform that part of their obligation of this agreement they shall refund whatever sums received by them to the purchaser whereupon this agreement shall become null and void and compensation costs or interest will not be payable and the purchaser shall accept the same in full satisfaction of all claims under this agreement."

It will be seen that cl. 19 is a break clause giving the developer the right to cancel the agreement if it was unable to perform any part of the obligation in the agreement. The reference in Miss. Devi's letter to this particular clause is therefore not apposite, or correct.

During the hearing reference was made to cl. 18 which is in these words:

In the event of the purchaser being unable to perform that part of his obligation of the agreement the purchaser shall give one month's written notice to the vendors that he is unable to perform his part of the obligations, and at the expiry

of the said period of one month the vendors shall have the privilege to refund to the purchaser whatever amount paid by him whereupon this agreement shall become null