JUDGMENT

Zakaria Yatim J

There were two appeals in these proceedings. The first appeal was filed by the plaintiff against the decision of the senior assistant registrar that execution be stayed pending the outcome of the defendant's appeal. The second appeal was filed by the defendant against the decision of the senior assistant registrar who granted the plaintiff leave to enter final judgment against the defendant under O 14 of the Rules of the High Court 1980. Both appeals were heard by me at the same time.

The plaintiff is a company incorporated in Malaysia and have a place of business at 31-1 and 33-1, Jalan 2/115A, Taman Pagar Ruyong, Jalan Kuchai Lama, Kuala Lumpur. The defendant is also a locally incorporated company and has its place of business at No 957, Jalan Sungai Chua, Kajang, Selangor. The defendant was a housing developer within the meaning of the Housing Developers (Control and Licensing) Act 1966 and was governed by the Act and the rules made thereunder.

By an agreement and schedule of conditions of building contract made on 4 March 1987 between the defendant and the plaintiff, the defendant appointed the plaintiff to be the main contractor for the construction of a project pursuant to the said agreement. Under the agreement, the plaintiff was to be paid on a progressive scale in respect of works done on the said project. The plaintiff claimed that it had completed the project on or about 25 June 1989 and the project was handed over to the defendant. The plaintiff averred that pursuant to a special meeting held on 12 May 1989 in the presence of the plaintiff, the defendant, and Arkitek Binarjaya, the parties reached agreement that the final contract sum would be RM3,030,280.25. The defendant had made payments totalling RM2,562,800 as at 31 December 1988. The plaintiff claimed that there was a balance sum of RM467,480.25 which was still due and outstanding. The plaintiff's claim was therefore for the sum of RM467,480.25 together with interests thereof at the rate of 8% pa for the date of the filing of the writ to the date of realisation; and costs of the action.

The defendant admits that it was a housing developer and governed by the Housing Developers (Control and Licensing) Act 1966. The defendant admitted entering into a contract with the plaintiff on 4 March 1987 but denied that the terms thereof were accurately and completely set out in the contract. The defendant denied being indebted to the plaintiff in the sum claimed. It averred that various payments were made direct to the sub-contractors of the plaintiff with the plaintiff's consent and approval. The defendant further averred that the plaintiff was in breach of the contract in that it failed to carry out plastering works to the project whereupon the defendant had to engage its own contractors to carry out the said works. The defendant had notified the plaintiff of the breach. The defendant contended that it was entitled to deduct all sums paid to its contractors from the final contract sum. The defendant further averred that the plaintiff refused to deliver the housing units to the defendant on 25 June 1989 and only did so almost two months later, on 22 August 1989, whereby the defendant had suffered damages. Owing to the plaintiff's wilful refusal to hand over the project, the defendant was unable to deliver possession of the individual units to the purchasers and the defendant was liable to pay the purchasers liquidated damages of 10% pa of the purchase prices. The defendant contended that it was entitled in law to set off all sums payable to the purchasers. The defendant alleged that the plaintiff had failed to follow the specifications in the contract. The plaintiff's work was defective. The plaintiff also used defective materials whereupon the defendant had to rectify the works at its own costs. In its counterclaim, the defendant asked for:

(1) judgment for all sums paid by the defendant to the plaintiff's sub-contractors;

(2) judgment for the costs o