Haji Abdul Kadir bin Sulaiman J:

This is an appeal by the defendant against the decision of the learned Senior Assistant Registrar (the SAR) given in favour of the plaintiffs in their application under O. 81, 18 r. 19(1)(b)(c) & (d) and 92 r. 4 of the Rules of the High Court 1980 (the RHC). Briefly the facts are that the plaintiffs (the Landowners) owned between them three contiguous lots (the said land) and intended the said land to be developed into a housing estate. The 1st plaintiff was the registered proprietor and beneficial owner of two parcels of land situate at 5th Mile, Jalan Penrissen, Kuching, Sarawak containing areas of 3,925 square metres and 4,128 square metres, more or less described as Lots 604 and 605 both in Block 226, Kuching North Land District respectively. The 2nd plaintiff was the registered proprietor and beneficial owner of Lot 603 containing an area of 7,932 square metres, more or less situated thereat. On 16 March 1983 they entered into an agreement (the said agreement) with the defendant as a developer. Preamble (b) to the said agreement recites that the Landowners and the defendant are desirous of developing the said land into a housing estate (the development project) consisting of various types of residential houses. Under the agreement the plaintiffs are to be entitled to eight units (four units each) of the houses to be built by the defendant on the said land (the Landowners' houses). In carrying out the development projects, clause 2 of the said agreement provides the various obligations of the defendant, of which time is of the essence. Inter alia, the defendant is required to prepare and submit for approval by the authorities the subdivision plans, buildings drawings and specifications and engineering drawings. The defendant is also required to construct and complete all the RC buildings on the said land in good workmanlike manner and in accordance with building drawings and specifications approved by the authority concerned. It is also required to carry out the construction and completion of all infra-structures (e.g. tarmac roads, culverts, drains, sewage system, bridges, retaining walls etc.) pertaining or relating thereto in accordance with drawings and specifications as may be approved by the authority concerned. By clauses 9, 10 and 11 the defendant shall at its own costs and expense construct the Landowners' houses in strict compliance with the approved building drawings and specifications, to be completed within 18 months from the date of approval by the authority of the building plans and RC details. For this purpose completion means when occupation permits thereto are issued by the local authority. In the event of delay on the part of the defendant, it shall pay to the plaintiffs delay compensation monthly at the rate of RM300 per month per unit which would work out to be RM2,400 for the eight units of the Landowners' houses. The arrangement as provided in clause 4 is that upon the execution of the said agreement, the plaintiffs shall forthwith execute a valid Memoranda of Transfer of the said land in favour of the Landowners (sic) and the total consideration to be stated in the transfer shall be RM1,185,000. As for the plaintiffs, apart from the eight units to be allotted to them by the scheme, they are to be entitled to a further sum of RM105,000 to be paid by the defendant "by way of equality of exchange" of the said land. Consequently, three Memoranda of Transfers were registered as Instrument No. L 6008/1983, L 6009/1983 and L 6049/ 1983 transferring the said land of the plaintiffs to the defendant pursuant to the said agreement.

Clause 15 provides that the defendant shall sell two (2) of the eight (8) units of the Landowners' houses for and on their behalf at no less than RM135,000 per unit and all proceeds of sale therefrom shall belong absolutely to the plaintiffs.

Clauses 4 and 5 of the said agreement provide the time frame for the defendant to submit matters f