NH Chan JCA:

I have had the advantage of reading the judgment in draft of my lord Abdul Malek Ahmad, JCA and I agree with all that he has said. However (and this is done in support of, and also as an addition (for the sake of clarity only) to, my lord's judgment), I wish to elaborate on the law applicable to the plaintiff's appeal (Civil Appeal P-02-56-96) against the award for liquidated damages by the judge below on the defendant's counterclaim.

The judge below found that the intention of the parties was that time was of the essence of the contract. This is what he said:

The next question I have to consider is whether the completion dates as stipulated in AB32 and AB34 are the essence of the contract. This is a question of law where several authorities were cited by both counsel in their written submissions. The Defendants contend that it is 'yes', whereas the Plaintiff says 'no'. In the Defence to the Counterclaims, he alleges a defence of waiver and acquiescence on the part of the Defendants. From the authorities, it is quite clear to me that whether or not time is of the essence of the agreement depends on the facts and circumstances of each case. Intention of the p