Buttrose J:

In this action the plaintiff, a married woman - a Malay - claims from the defendant, who described himself as a building contractor, damages for breach of contract in respect of a house at Coronation Road built for her by the defendant for $8,500 pursuant to an agreement in writing dated 2 November 1958. The plaintiff went into occupation of the house early in April 1959 and has lived in it ever since but she has refused to pay the balance of the purchase price. She alleges that the sum of $7,000 which she has paid to the defendant on account of the purchase price was paid upon a consideration which has failed and that the erection of the house was not completed, that much of the work was defective and of inferior quality and that the timber used was not in accordance with the terms of the contract. The plaintiff further claims special damages in the sum of $5,840 incurred in having the house completed and the defects remedied, including an architect's fee. The defendant denies the allegations and counter-claims the sum of $1,500 being the balance of the purchase price.

The position was that under the agreement to which I have referred the defendant was to build a house for the plaintiff "similar to that of Che' Safarwan at Geylang Serai for a sum of $8,500 including all labour charges, materials and water laid". The house was to be completed before April 1959 and it was also stated that the plaintiff was not to be responsible for any further payment except for the sum of $8,500 only.

That clearly, in my judgment, upon its true construction is an agreement for the sale of a house to be erected by the defendant for a lump sum of $8,500 and if the ordinary rule governing the discharge of contracts by performance were to be applied it would be necessary for the defendant in this case to show that he had performed his obligations fully and completely before he could receive anything for the work he had done. But as was pointed out by Whyatt CJ in Building Estate Ltd. v. AM Connor [1958] MLJ 173 at p. 174 the rigour of the common law rule requiring exact and precise performance by the promisor as a condition precedent to his right of recovery under a lump sum contract has been modified to some extent by judicial decisions and it is now well established that in certain circumstances a promisor who has substantially performed his side of the contract may sue on the contract for a lump sum but, of course, remains liable in damages for his partial failure to fulfil his contractual obligations.

This doctrine of substantial performance is enunciated clearly and conveniently in the case of Hoening v. Isaacs [1952] 2 All ER 176 by Denning LJ as follows:

.... the first question is whether, on the true construction of the contract, entire performance was a condition precedent to payment. It was a lump sum contract, but that does not mean that entire performance was a condition precedent to payment. When a contract provides for a specific sum to be paid on completion of specified work, the Courts lean against a construction of the contract which would deprive the contractor of any payment at all simply because there are some defects or omissions. The promise to complete the work is, therefore, construed as a term of the contract, but not as a condition. It is not every breach of that term which absolves the employer from his promise to pay the price, but only a breach which goes to the root of the contract, such as an abandonment of the work when it is only half done. Unless the breach does go to the root of the matter, the employer cannot resist payment of the price. He must pay it and bring a cross- claim for the defects and omissions, or alternatively, set them up in diminution of the price. The measure is the amount which the work is worth less by reason of the defects and omissions and is usually calculated by the cost of making them good.

I think the agreement in the present case falls within the class of contr