Thomson LP:

I have had the advantage of reading the judgement of Dato' Syed Sheh Barakbah with which I am in entire agreement.

I do not think we are really concerned with the construction of the agreement between the parties as embodied in the sub-lease of 3 January, 1961.

The matter is to be decided on the pleadings (for there is no other material) and on the pleadings it is clear that the plaintiffs surrendered the sub-lease and that the defendant accepted the surrender.

At the time of the surrender the contract between the parties was still executory on both sides since the term of the lease had not expired. In the circumstances the surrender of the lease puts an end to it by an agreement which in itself was binding on each of the parties, the consideration passing to each of the parties being found in the abandonment by the other of his right to performance. In the circumstances the original contract embodied in the lease was at an end and, no breach having been alleged by either side, neither could then be under any contractual obligation to the other. Had there been complete failure of consideration, that is to say in simple terms had the plaintiffs, the lessees,