Chang Min Tat FJ:

[1] The respondent (the contractor) was at all relevant times the building contractor employed by the appellant (the developer) to build 6 units of 3-storeyed shophouses at an agreed cost of $223,000.

[2] The agreement between the parties is in writing. It is clear from the terms that the intention of the parties to the agreement was the construction of the project as a whole. The shophouses were not meant to be built one by one. The site was to be prepared in one operation and after its preparation, the piling work was to be commenced for all 6 houses. The construction was then to proceed by continuous work and the houses were expected to be constructed and ready for occupation at the same time. Thus the payment for the construction by the usual process of progress payments was made dependent upon the completion of the several stages of the entire construction as set out in the particular clause relating to the progress payments.

[3] In the event, the contractor completed 5 of the 6 shophouses. He put in some work on the sixth shophouse which he was unable to complete because of a claim by a third party to ground tenancy rights to the lot on which this particular shophouse was to be built. The claim was reinforced by a court injunction which the contractor could not ignore. He also had carried out certain extra work for the employer. He therefore sued for his money, which he quantified at $59,000 being the balance of the whole contract sum of $223,000 less $164,000 previously paid to him and S12,562 for the extra work and materials supplied.

[4] His statement of claim, it must be stated, was terse to the point of vagueness. It certainly ignored the fact that he did not complete the construction of the sixth shophouse. It assumed that he was entitled to the whole of the contract sum and it specifically relied on the provision in the agreement for final payment of a retention sum of $12,000 to be paid six months from the issue of the occupation permit. This period had expired at the taking out of the writ but this was only in respect of five of the six shophouses.

[6] Paragraph 3 of the defence reads:

"3. Alternatively, the defendant will say that the plaintiff completed only five (5) units of the shophouses. Accordingly, the contract price payable by the defendant to the plaintiff is $185,833, of which the defendant has on various dates paid the plaintiff the sum of $164,444.10 cts. A Statement of Account is annexed hereto and marked 'A'. Therefore, the defendant admits owing the plaintiff only the sum of $30,770.90 cts."

[7] This particular defence in its turn completely ignored the work hitherto done on the sixth lot and the fact that the inability of the contractor to construct this last shophouse was not due to any fault or negligence on his part but was due solely to the failure on the part of the developer to give possession of the site which he had contracted to do in cl 5 of the agreement. It said that the contractor was only entitled to five-sixths of $223,000, that is to the sum of $185,833. The annexed statement of account claimed to having paid $164,000 and a set-off for 2 minor disbursements in the total sum of $444.10. It admitted extra works and charges in the amount of $9,382. On the striking of the balance, the defence therefore admitted owing $30,770.90.

[8] Judgment for this sum of $30,770.90 was therefore signed in favour of the contractor, on the admissions in the defence and the case went on to trial on basically the contractor's cla