Zulkefli Makinudin FCJ:

[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) of the Contracts Act 1950 ("the Act") when on the contrary the respondent 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