Raja Azlan Saha J:

The plaintiff is a building contractor carrying on business under the name of Yong Mok Hin Construction, Kuala Lumpur.The defendants are a limited company hereinafter referred to as the defendant company.The plaintiff claims $13,800 representing materials used and damaged by the defendant company while erecting their machinery in the factory; $40,785 for the alteration of the two original stores to three stores at $13,595 each; $36,000 as representing the fifth progress payment; and interest at 60 per annum from 24 December 1964 to date of realisation, and costs.Items (d), (e) and (f) have been abandoned.

The defendant company denied liability.They alleged that the work done must be taken to be work done under the contract, that is, for the contract price of $187,500, and that the amount sued must be taken to be the balance due under the said contract.They further alleged that they never agreed or otherwise became liable to pay for the said work or any paint thereof on the grounds following:

(a) The said works were not done or completed by 8 February 1964 which was a condition precedent as time was of the essence of the contract.

(b) The plaintiff had abandoned work in about November 1964.

(c) The Government had not given a certificate of fitness of occupation.

(d) The work was defective and done in a non- workmanlike manner.

The defendant company counter-claimed for damages for breach of contract, expenses incurred or to be incurred to remedy defective work and complete the whole project and damages for delay and consequential loss.

The circumstances giving rise to the claim are as follows.On 8 August 1963 the plaintiff entered into a contract with the defendant company for the construction of a one-storey office building for $82,500 and two zinc wall stores for $105,000.The contract (Exh. P1) inter alia stipulates that time was of the essence and that the time for completion of the whole project was six months from the above date.It was accepted by both parties that advances on the contract price were to be made towards the progress of construction on the certification by the architect and the balance on a certificate of fitness of occupation being granted to the defendant company by the Government.The plaintiff was responsible for the performance of the work under the direct supervision of the defendant's architect.There was a schedule of works and a plan (Exh. P22) but no specification was provided.It is a lamentable fact that the said work, which in reality was not precisely defined and planned, was put out to tender by the defendant company or their architect without using a schedule form of contract, thus relying on their powers to vary the work and issue working drawings for the supply of the actual design during the currency of the work, when they would be far better off to recognise the reality and use a schedule form of contract thereby avoiding the probability of large claims of uncertain amounts by both sides.That is my observation on the evidence.To proceed with the case, it was the understanding of both parties that on each occasion when progress payment was to be made, the defendant company would issue to the plaintiff shares for that amount.At the time of the execution of the agreement the plaintiff agreed and was allotted a total of $150,000 worth of shares in the defendant company (Exh. D11). In due course the plaintiff commenced work and he received in all four progress payments the last of which was on 6 May 1964.On that date he had received in respect of progress payments a sum of $34,500 in cash and $130,000 worth of shares, making a total of $164,500.

I shall now proceed to consider the plaintiff's claim.With regard to his first claim, the plaintiff testified that the defendant company had used his timbers which were already on the site in connection with the erection of their machinery and therefore had incurred loss in the region of $2,600.That has not been challenged.He als