Buttrose J:

This is an action for damages for breach of contract. The plaintiffs' claim was that by a contract in writing dated 4 July 1960, they agreed to sell and the defendants agreed to buy 50 tons of No. 5 RSS Rubber (July 1960) at a price of $1.09 per pound. They alleged that the defendants wrongfully neglected or refused to accept or give shipping instructions or pay for the goods whereby the plaintiffs suffered damage. The market or current price at the time when the goods ought to have been accepted was $0.98 per pound and the difference between the contract price and the market price in respect of the 50 tons of rubber was $12,460 and this was agreed by the defendants.

The defendants while admitting the contract and that they bought the rubber refused to take delivery as they maintained the contract was illegal because they were not licensed under the Rubber Dealers Ordinance (Ch. 199), hereinafter referred to as 'the Ordinance', to purchase rubber.

The position was that the defendants originally had a license to ship rubber in 1959 but at the date of the present contract it had expired and it was only after the contract had been entered into that they acquired a new licence to ship rubber. The defendants never at any time had a license to purchase rubber.

The Secretary of the Malayan Rubber Export Registration Board established under the Rubber Shipping and Packing Control Ordinance (Ch. 183) gave evidence that in July 1960 the defendants applied for a licence to ship rubber for export and it was issued to them on 14 July 1960. He said his Board was not concerned to ascertain if the applicant has a licence to purchase rubber.

Section 3 of the Ordinance provides that no person shall purchase, treat or store rubber unless he shall have been duly licensed in that behalf by a licensing officer. The meaning the words "purchase rubber" bear in that section were considered over thirty years ago in the case of Syn Thong & Co. v. Tong Joo (Hoo) & Co. [1929] SSLR 39 and that and subsequent decisions were reviewed in Stanton Nelson & Co. Ltd. v. Mizrahie [1958] MLJ 45, 47, 48 & 49; [1958] MLJ 97, CA at pp. 47, 48 and 49.

The effect of those decisions was that the words "purchase rubber" as used in s. 3 of the Ordinance refer to present purchases of the commodity completed by delivery and not to forward or executory contracts to purchase unascertained rubber by description which do not involve delivery at the time they were made. It is only when the purchaser seeks to take delivery of specific rubber by way of the completion of a contract to purchase that he is bound to have a licence to take delivery and a licensed store into which the goods may be delivered. These decisions have stood for over thirty years and although the Stanton Nelson case to which I have referred went to the Court of Appeal ([1958] MLJ 97) it was decided on an entirely different ground.

The present contract was a forward FOB contract executory in its terms which did not involve delivery at the time it was made and accordingly, in my view, the contract was not illegal because of the defendants' failure to have a license under s. 3 of the Ordinance.

The Privy Council case of Chai Sau Yin V. Liew Kwee Sam relied on by the defendants was an action for the price of rubber sold and delivered. It was a present purchase of the commodity followed by delivery and is, I think, clearly distinguishable from the present case.

Now the legislature must be taken to have been aware that for the past thirty years or more the Courts have held that s. 3 of the Ordinance did not apply to forward contracts for the purchase of rubber. I think I am entitled to draw the inference that the legislature well knew of the interpretation placed on s. 3 of the Ordinance by the Courts and although it had the Ordinance before it on some six or seven occasions since 1929 it failed to make any other provision.

This year, however, as the result, according to Mr. Lloyd, of it