Zulkefli FCJ

[1]I have read the judgment in draft of my learned brother Gopal Sri Ram FCJ and I agree with the views expressed and the conclusion reached by His Lordship in allowing this appeal by the appellant. I would like to add in a few words in support of the judgment as follows.

[2]It is to be noted at the outset that the project undertaken by the appellant was never abandoned and at all material time the appellant had kept the respondent informed of the progress of the development. In my view the learned trial judge misdirected himself in holding that the failure of the appellant to deliver vacant possession of the property after 23 November 1998 amounted to fundamental breach of the agreement and therefore the agreement was voidable at the option of the respondent pursuant to s 56(1)Contracts Act 1950 (‘the Act’)did not immediately after 23 November 1998 make an election to rescind the agreement and had in fact made an unequivocal election to make further progress payments and affirmed the agreement by paying the purchase price in full.

[3]Clauses 22(1) and 22(2) of the sale and purchase agreement (‘SPA’) are relevant in support of the appellant’s case in which the observation