5.8 Time shall be of the essence of this Agreement as regards the times, dates and period which mentioned or referred to and as to any times, dates and period which may be substituted by [12] It should be noted that Clause 4.1(a) of the Contract referred to by the Defendant is a provision for termination of the Contract. It is akin to a condition precedent of the Contract as the obligation to complete the CMO only begins once the License is obtained. [13] In this case, there was no agreement in writing to formally extend time to secure the License and therefore, no new deadline set after expiry of the 180-day period from the date of execution of the Contract. However, it is clear that the Defendant did not then treat the Contract as terminated. It acquiescenced in the continuance of the Contract and this sets time at large. [14] In Anor [2021] 5 CLJ 149, the Court of Appeal held: It was also shown that the respondents by their conduct did not intend for the rescission of the agreement. The repeated extensions of time and D9 are evidence suggesting they wanted to continue with the agreement. In view of this, s. 56(1) of the Contracts Act 1950 should be applicable for the appellant and this provision states as follows: When a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promise, if the intention of the parties was that time should be of the essence of the contract. [37] And the Federal Court case of Sim Chio Huat v. Wong Ted Fui [1983] 1 CLJ 178; [1983] CLJ (Rep) 363 on the same point states as follows: The position is this: If in a contract in which time is of the essence, a party fails to perform it by the stipulated time, the innocent party has the right either to rescind the contract or to treat is as still subsisting. If he treats it either expressly or by conduct as still continuing, the contract exists but time [15] The Plaintiff relied on Wong Kup Sing v Jeram Rubber Estates Ltd [1969] 1 MLRH 297 where the Court held in a similar way: Once the time for completion was allowed to pass and the parties went on negotiating, then time was no longer of the essence of the contract and the defendants must give a reasonable notice of their intention to abandon the contract if the balance of the [13] In my opinion since time was no longer of the essence, the notice of abandonment dated 15 November 1967 was not a reasonable notice. The net result is that the contract was never terminated and it would follow that the [16] Defendant and the agreement that the Plaintiff should continue to work on getting the License, this Court found PW1 to be a credible witness who did not engage in any exaggeration or sophistry. His evidence was not inherently improbable. There was no plausible reason for the Plaintiff to have sabotaged the bargain, having already invested a substantial amount of money and time in the Contract. [17] This Court also finds that t Chai to testify at the trial and the absence of any contemporaneous position on the matters set out in PW1 ourt to make a finding that the facts stated are probably true, which is that as at 18-2-2020, the Contract was still subsisting with time set at large and accordingly, no breach by the Plaintiff. [18] For completeness, this Court has also reviewed the evidence of loss and damage advanced by the Defendant to justify the claim for Conceptually, this Court finds the claim to be wholly speculative. There is no cogent evidence to prove the level of profits from the future production of rubber from trees that have yet to be planted that, once planted, would take 7 years to mature. [19] The Court is not persuaded by basis of computation as there are too many variables that were not accounted for. This is the type of damages claim that would call for an expert opinion. Notably, the Defendant has also failed to mitigate any loss that might have arisen from the delay in planting as the evidence revealed that even as at the trial, the land had not been cleared or planted. Wrongful Termination of Contract [20] For purposes of determining whether the Defendant had wrongfully terminated the Contract, regard must be had to the fact that time was no longer of the essence of the Contract. In order to justify terminating the Contract, the Defendant must therefore give notice to make time of the essence again. [21] Therefore Contract on 18-2-2020 without notice was a wrongful repudiation of a subsisting Contract. There being a total failure of consideration flowing to the Plaintiff for the RM600,000.00 paid and there being the uncontradicted evidence by PW1 of an agreement by Wong Teck Chai to refund the sum, this Court has no hesitation in either on the basis of damages in the form of wasted expenses or as an unjust enrichment. [22] As no other damages were proven, the orders made are as follows: