JUDGMENT OF THE COURT

1. There are four appeals before the court. These appeals arose out of the same action, that is, Civil Suit No. KG 104 of 1994 (II) in the Kuching High Court ("the main action"). The first three appeals relate to interlocutory matters. The fourth appeal, ie, Civil Appeal No. Q-02-367-99 is an appeal against the final judgment of the High Court in the main action. At the outset, counsel for the parties informed that they planned to go straight to the fourth appeal. We gave our consent to the request.

The parties

2. The plaintiff (the 1st respondent in these appeals) is one Jong Chuk. The 1st to the 5th defendants (the 2nd to the 6th respondents in these appeals) are individuals who were the registered co-proprietors of a piece of land described as Lot 29, Block 218 Kuching North Land District (hereafter referred to as "the said land").

3. The appellant in these appeals is a locally incorporated company named Bacom Enterprises Sdn Bhd (hereafter referred to as "Bacom"). It was brought in as a third party by the 1st to the 5th defendants and became the 6th defendant. For ease of reference, except for Bacom, we will refer to the other parties as they were in the court below.

4. The background to the dispute between the parties is as follows.

The development agreement

5. On 22 October 1991, the 1st to the 5th defendants and the plaintiff entered into an agreement (hereafter referred to as "the development agreement") over the said land wherein the 1st to the 5th defendants were described therein as "the owners" and the plaintiff as "the developer". According to the recitals to the development agreement, the 1st to the 5th defendants have obtained approval from the relevant authorities to subdivide the said land into residential lots (marked as "plan A" therein) and whereas the plaintiff wish to propose subdivision of the said land into commercial and residential lots (marked as "plan A2" therein) and that the plaintiff has agreed to undertake the development of the said land subject to, inter alia, the following terms and conditions:-

(a) the plaintiff shall, at his own costs and expenses, erect and complete for the 1st to the 5th defendants five units of double-storey semi-detached houses and one unit of a corner double-storey terrace house as shown in plan A if the proposed plan A2 is not approved by the relevant authorities;

(b) in the event the plaintiff shall be able to obtain approval of some six units (or thereabouts) of 3-storey shophouses as shown in plan A2, the 1st to the 5th defendants shall have priority to take shoplots Nos.1 and 2, together with sublets Nos. 23 and 24;

(c) the 1st to the 5th defendants houses or shophouses, whichever are applicable, shall not be deemed to be completed unless and until occupation permits have been obtained by the plaintiff from the relevant authorities concerned;

(d) the 1st to the 5th defendants houses or shophouses, whichever are applicable, shall be completed and delivered to them by the plaintiff within 18 months from the date of approval of the engineering plans having been obtained by the plaintiff from the relevant authorities or within 36 months from the date hereof, ie, from 22 October 1991 whichever is the earlier;

(e) the plaintiff shall, at his own costs, "earth-fill" the said land to a suitable level, construct and complete retaining walls, access roads, culverts, drains and other items of infrastructure on the said land in strict compliance with the road and drainage plans approved by the relevant authorities and which shall not be deemed to be completed unless and until certificate of fitness thereof has been obtained by the plaintiff from the relevant authorities concerned;

(f) in consideration of the plaintiff performing all his obligations under the agreement, the 1st to the 5th defendants shall transfer free from all encumbrances all the other remaining sublets to the plaintiff provided that the plaintiff shall have completed the