Gopal Sri Ram JCA:

[1] This is the judgment of the court.

[2] There are ten appeals before us today. They all give rise to common issues. In four of them there are cross appeals. We have heard a single argument from either side in all the appeals as well as the cross appeals. The relevant facts are as follows.

[3] The appellant is a housing developer. Its activities are controlled and regulated by the Housing Development (Control and Licensing) Act 1966 ("the Act") and the Regulations made thereunder. From about 1995 to about 1997 the appellant entered into a number of agreements including those which are the subject matter of these appeals with members of the public to sell to them apartments in a condominium which the appellant had agreed to construct. Later, it transpired that the appellant was unable to make delivery of the apartments to the respondent in the ten appeals now before us. These respondents then brought actions to recover damages for delay of delivery of vacant possession of each of their apartments. In all these cases concerned, the High Court which heard the cases found for the respondents on the issue of liability. However in four of the suits the High Court refused to award the respondents compensation up to the date on which each of them had taken actual physical possession of their respective apartments. The four cross appeals are directed against the orders in these four cases.

[4] Before us, learned counsel for the appellant raised four grounds in support of the appeals. We will deal with each of them in turn. The first point is based on s. 56(3) of the Contracts Act 1950. For convenience we will set out the whole of s. 56. This is what it says:

(1) When a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promisee, if the intention of the parties was that time should be of the essence of the contract.

Effect of failure when time is not essential

(2) If it was not the intention of the parties that time should be of the essence of the contract, the contract does not become voidable by the failure to do the thing at or before the specified time; but the promisee is entitled to compensation from the promisor for any loss occasioned to him by the failure.

Effect of acceptance of performance at time other than that agreed upon

(3) If, in case of a contract voidable on account of the promisor's failure to perform his promise at the time agreed, the promisee accepts performance of the promise at any time other than that agreed, the promisee cannot claim compensation for any loss occasioned by the non-performance of the promise at the time agreed, unless, at the time of the acceptance, he gives notice to the promisor of his intention to do so.

[5] In order to appreciate learned counsel's submissions on the application of s. 56(3) it is necessary for us to deal with the relevant clauses in the statutory contract prescribed by the Regulation 11(1) of the Housing Development (Control and Licensing) Regulations 1989 ("the Regulations"). They are cls. 22 and 24 of the sale and purchase agreement prescribed in Schedule H of the Regulations. They read as follows:

Clause 22(2)

If the Vendor fails to hand over vacant possession of the said Parcel, to which water and electricity supply are ready for connection to the said Parcel, in time, the Vendor shall pay immediately to the Purchaser liquidated damages to be calculated from day to day at the rate of ten percentum (10%) per annum of the purchase price.

Clause 24

(1) The common facilities serving the said housing development shall be completed by the Vendor within thirty six (36) calendar months from the date of this Agreement.

(2) If the Vendor fails to complete the common facilities in time the Vendor shall pay immediately