TSUI SHU FONG v. CHAN YUEN TENG & OTHERS

HCA 18260/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 18260 OF 1998

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REASONS FOR DECISION

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1. The partnership in dispute, namely Tung Shing Plastic Factory (the partnership) was set up by the plaintiff (Tsui Shu Fong) and D1 (Chan Yuen Teng) in 1985. D1 apparently was just nominated by his father, D3 (Chan Yu Tim) to start the business with the plaintiff. D2 (T & S Buttons Co. Ltd.) was a family business under the control of D3. For all intent and purposes, the defendants were one and the same family (Chan's family).

2. In or about 1989, D1 immigrated to USA and he authorized his father D3 to handle the partnership affairs on his behalf. There was no dispute that in connection with the partnership business, D3 was at all material times fully authorized to represent D1.

3. In October 1998, the plaintiff commenced proceedings against D1 and D2 for the dissolution of the partnership and the appointment of a receiver.

4. The cause of the dispute was the allegation by D3 that the plaintiff had secretly set up separate businesses in competition with the partnership. The plaintiff counter alleged that his interest in the partnership had been unduly prejudiced when the partnership assets were registered in the name of D2 and other entities under the control of the Chan's family. The disputes eventually led to the expulsion of the plaintiff from the partnership.

5. In December 1998, by a consent order made by Deputy Judge Muttrie, the affairs of the partnership was ordered to be wound up. Kenneth Graeme Morrison and Leung Man Kay of Pannell Kerr Foster were appointed as joint receivers.

6. In the course of the receivership and winding-up of the partnership, the joint receivers encountered significant difficulties as some of the assets of the partnership were not registered in the name of the partnership and there were disputes between the parties as to the nature and extent of the partnership assets, including assets in China and U.S.A.

7. The plaintiff alleged inter alias that monies had been remitted and machineries transferred to USA for the use by Eagle Plastic Factory (Eagle Plastic). They were therefore investments of the partnership in Eagle Plastic and should be included as the partnership assets. The Chan's family however maintained that monies remitted to USA were drawings of the plaintiff for his personal investment in Eagle Plastic only.

8. Further one New York Button (Far East) Co. Ltd. (New York Button), a company in the control of the Chan's family, as nominee of the partnership had substantial dealings with Dongguan Qingxi Tung Shing plastic Bags and Buttons Factory (Dongguan Factory) in connection with the factory premises and the machineries and equipments belonging to the partnership.

9. As the partnership assets in the Dongguan Factory were not registered in the name of the partnership, the joint receivers had difficulty in having control over such assets despite agreement between the parties.

10. The matter was further complicated by the fact that the Chan's family wholly owned New York Button and the contractual arrangement between the partnership and Dongguan Factory was entered into by D3. It was the plaintiff's allegation that the aforesaid arrangement was created by the Chan's family with a view to prejudice his interest in the partnership.

11. The plaintiff alleged that the joint receivers had not discharged their duties properly in identifying and preserving the assets of the partnership. In the course of making his points, the plaintiff had through his solicitors continuously exerted pressure on the joint receivers which pressure on occasions bordered on discourtesy according to the joint receivers. There was even an attempt by the plaintiff to remove the joint receivers and to appoint new ones.

12. The aforesaid difficulties prompted the joint receivers to apply to court for further directions in pursuance to the order of Deputy Judge Muttrie.

13. On 4 August 1999, Ribeiro J as he then was, ordered that D3 be added as a defendant. Further directions in connection with the winding-up of the partnership were given. Ribeiro J also framed the following issue to be tried between the plaintiff and D1 and D3, namely: -

"Whether the investments in the Eagle Plastic Company in the USA are investments made by the Dissolved Partnership or are personal investments of the plaintiff."

14. For the purpose of this hearing, the dispute between the parties is confined to the aforesaid issue.

15. It was the plaintiff's case that at the end of 1996, he indicated his wish to immigrate to USA and D1 suggested that a subsidiary company of the partnership should be set up in USA and the plaintiff could apply for a employment visa. It was the parties' intention that D1 would be responsible for marketing and financial issues whereas the plaintiff would take charge of production and manufacturing.

16. D1 further suggested that the partnership name "Tung Shing" was not appropriate for the American market and the partnership should use the new name, Eagle Plastic. The plaintiff claimed that he was not aware of the internal structure of Eagle Plastic or the relevant documents as he did not understand English well and all the procedures were handled by D1.

17. The plaintiff suggested that in 1997, two telegraphic transfers of HK$1,080,000 and HK$1,000,000 respectively were made to Eagle Plastic by the partnership. In addition as the partnership did not have sufficient funds to set up Eagle Plastic, the plaintiff contributed US$100,000 and D2 contributed US$99,985 as loans to the partnership. The partnership subsequently reimbursed them by cheques drawn in favour of D1's mother Wong Nai Yik and the plaintiff's wife Madam Wong Kwai Ngor.

18. The partnership also acquired factory premises at Minnehaha Grove Tract, Los Angeles USA registered in the name of Button & Trims Products Corporation (Buttons & Trims). An initial deposit of US$300,000 was paid with funds from the joint account of D1 and the plaintiff in USA with the balance being financed by mortgage loan.

19. It was also the plaintiff's contention that the partnership had acquired and made shipments to USA of machineries and equipments for Eagle Plastic.

20. The alleged telegraphic transfers to Eagle Plastic, even on the plaintiff's own case took somewhat indirect routes.

21. The plaintiff claims that around September 1996, HK$1,060,000 was transferred from the account of the partnership into the plaintiff's personal account. The plaintiff then transferred a total of about HK$3,080,000 to the joint account of D1's brother and mother, Chan Wai Shung and Madam Wong Nik Yik in April 1997.

22. On the instruction of the plaintiff, Chan Wai Shung and Madam Wong Nik Yik then transferred HK$1,080,000 (US$138,828.31) into the joint account of the plaintiff and D1 and HK$2, 000,000 into the personal account of the plaintiff in USA. The HK$1,080,000 was the HK$1,060,000 drawn on the partnership account in favour of the plaintiff in September 1996 together with interest accrued thereon.

23. As for the telegraphic transfer of HK1,000,000, it began in May 1997 when D3 issued a cheque from the partnership account to the plaintiff's wife. The plaintiff's wife transferred a total of US$279,115.56 to the plaintiff's own account in USA. The plaintiff then transferred US$130,000 to the joint account with D1.

24. It appeared not in dispute that the plaintiff had in fact transferred a sum of about US$229,000 to the joint account. It was the plaintiff's contention that USD130,000 (HK$1,000,000) was the contribution from the partnership and the balance of about USD100,000 would be a loan by him to Eagle Plastic.

25. The plaintiff alleged that he himself and D2 and had advanced the respective sums of US$100,000 and US$99,985 as loans to the partnership in connection with the USA investment and they were subsequently reimbursed by the partnership. He said the reimbursement took the forms of withdrawals from the partnership account. He conceded that the withdrawals by the parties did not tally with the alleged loans, but it was the parties' understanding that they were meant to be repayments of the loans advanced for the partnership investment in USA.

26. The factory premises at Minnehaha Grove were registered in the name of Buttons & Trims Products Corporation (Button & Trims), a US corporation under the control of D1's brother, Chan Wai Shung. It was not disputed that the plaintiff and D1 were both beneficial owners to the extent of 50% each. The plaintiff suggested that such arrangement was necessary in order to obtain the mortgage in respect of the said property.

27. In his evidence, the plaintiff emphasized the attempt by D3 to deprive him of the partnership assets in the Dongguan factory which was registered in the name of New York Button. He also said as early as May 1996, there was already discussion with D3 of the plan to set up a branch of the partnership in USA as 1997 was drawing close. It was also the plaintiff's intention then to apply to immigrate to USA.

28. With that in mind, the plaintiff and D3 visited USA and a feasibility study was conducted. It was decided that a subsidiary company of the partnership would be set up in Los Angeles. Shortly after their return to Hong Kong, D3 instructed the plaintiff to purchase machineries and equipments needed for the USA factory. The plaintiff then purchased substantial machineries and equipments in September and October 1996 which machineries and equipments were then shipped to USA by D2 and received by its subsidiary Company in USA, namely American Button Inc.

29. On or about 22 April 1997, the plaintiff again left for USA with a view to work there for 6 months. On 13 June 1997, in his presence D1 wrote out a fax message the content of which confirmed the transfer of monies from the partnership to set up a factory in USA. It also recorded the further loans of US$100,000 from each of the plaintiff and D2, as the partnership did not possess sufficient fund to cover the cost of the factory premises and the required working capital.

30. The said fax further confirmed the acquisition of the factory premises for the partnership that was to be in the name of the plaintiff and D1, just as the office premises of the partnership in Hong Kong was registered in their names.

31. Initially it was suggested that the USA factory would use the partnership name. But D1 persuaded the plaintiff to use the name Eagle Plastic as Tung Shing was very much a Chinese name and not suitable for the USA market whereas Eagle was a national symbol of USA and was therefore suitable for the American market. The plaintiff was also persuaded not to have his name registered as an owner of Eagle Plastic as it might affect his immigration application.

32. The plaintiff also gave detailed evidence about the various payments by the partnership towards setting up Eagle Plastic and the reimbursement payments by the partnership for the loans advanced by him and D2. In particular he said before he left for USA in April 1997, he had pre-signed books of the partnership cheques so that deposits could be made into his account and the account of his wife. He also described how the sums of $1.06 million and $1 million were eventually transmitted to the joint account set up by him and D1 for the USA factory.

33. The plaintiff admitted that there was no written agreement pertaining to the partnership investing in Eagle Plastic but relied heavily on the fax dated 13 June 1997 addressed to the accountant of the partnership Mr Tam by D1 and the plaintiff. The document was captioned under "In connection with Tung Shing investing in USA "Eagle Plastic" plastic bags factory "有關東成投資美國 "Eagle Plastic" 飛鷹塑膠袋廠".

34. The plaintiff further emphasized that there were documents pertaining to the purchase of machineries and equipments which showed that the machineries and equipments were purchased and paid for by the partnership.

35. The plaintiff also relied on the admission made by D3 in a document dated 30 December 1998 in which D3 said the investors of Eagle Plastic included:

A. Chan Wai Shung and Wong Nai Yik of US$138,828.31;

B. T & S Buttons Co. Ltd. of US$$99,985;

C. The partnership of US$$196,416.72; and

D. The plaintiff of US$100,000.

36. In his affirmations, D3 denied that Eagle Plastic was part of the partnership business. Instead he suggested that it was an investment by a number of people, including himself, his son Chan Wai Shung, his wife Wong Nik Yik, D1 and the plaintiff.

37. In so far as the fax message dated 13 June 1997 contained those words as "有關東成投資美國 "Eagle Plastic" 飛鷹塑膠袋廠", "東成第一次T/T，第二次T/T ", they were inserted at the request of the plaintiff. It was suspected that the plaintiff made the request for fear that the Inland Revenue Department would make enquiries when the plaintiff was able to invest such a large sum of money in Eagle Plastic.

38. The defendants admitted that machineries and equipments had been purchased and transported to USA to be used by Eagle Plastic. They denied however that the plaintiff had been authorized to use capitals of the partnership to acquire those machineries and equipments. They said the plaintiff used those machineries and equipments as part of his own investment in Eagle Plastic.

39. Despite being one of the only two partners of the partnership, D1 did not appear to know too much about the partnership activities and as they were attended to by D3. D1 insisted that the USA investment was meant to be a personal investment by the plaintiff and unrelated to the partnership.

40. D1 also suggested that there was a distinction between the property investment and the business investment. The factory premises at Minnehaha Grove were acquired by Button & Trims together with the plaintiff as their joint investment whereas the business was an investment by the plaintiff and D2.

41. D1 agreed that the only shareholder of Eagle Plastic was American Buttons Inc., which was a family business with his brothers and parents as the only shareholders. D1 insisted that it was the plaintiff's own decision not to have his name included as a shareholder of Eagle Plastic because his lawyer advised him that being a shareholder of Eagle Plastic might jeopardize his immigration application.

42. D1 insisted that he wrote the said fax dated 13 June 1997 on the instruction of the plaintiff. He said that he was at the time not aware of the alleged remittance. The plaintiff told him that both parties had to invest an additional amount of USD100,000. D1 also said he put down the heading on the instruction of the plaintiff, as he did not want the Hong Kong side to know that it was to be a personal investment.

43. D1 also suggested that according to D3, the machineries and equipments were meant to be part of the investment by the plaintiff and it was the intention of the parties that a proper account would only be taken at a later time.

44. Due to the dispute with the plaintiff, Eagle Plastic did not commence operation at all and was wound up in July 1999. As the plaintiff did not keep up with the mortgage payment in connection with the factory premises in USA, the Chan's family suffered significant financial loss of over USD100,000.

45. D1 suggested that it was his practise to sign cheques in blank and gave them to the plaintiff for settlement of partnership expenses. He suggested that his father, D3 continued with the same practice and hence the plaintiff was able to withdraw money from the partnership account without D3's knowledge.

46. As for the initial payment into the joint USA account of USD138,828.31, D1 suggested that it was an amount paid by his brother and his mother and therefore an investment by the Chan's family.

47. The suggestion was that when the factory premises at Minnehaha Grove were purchased, only 50% of the purchase price was paid. The other 50% was raised by way of mortgage and the Chan's family acted as the guarantor. As the plaintiff was a 50% equitable owner of the factory premises, he should be responsible for half of the mortgage amount. When D1's family assumed the responsibility of a guarantor, it was agreed between the plaintiff and D3 that the plaintiff would pay the sum of about USD140,000 to the Chan's family as security.

48. In the circumstances, the amount of USD138,828.31 although came from the plaintiff was in fact money belonging to Chan's family.

49. D1 insisted that the plaintiff had misled both him and D3 and hence they had not responded promptly to the inquiries by the joint receivers when they raised questions concerning the accounts of the partnership. He also insisted that he and D3 had no knowledge about the purchase of the machineries in the name of the partnership. He insisted that the machineries were purchased by the plaintiff in his own name and shipped to USA as his contribution towards the capital of Eagle Plastic.

50. It was also D1's evidence that initially the plaintiff and D3 had agreed that the plaintiff would set up his own factory in USA to manufacture plastic bags. The plaintiff would be responsible for all the expenses and the products would then be sold to D1's family business, American Buttons Inc. which would then sell the products to their own customers. The two businesses were to be separated and independent from each other.

51. Subsequently his lawyer advised the plaintiff that if he was to set up a business in his own name, his visa status as an employee might be affected. D1 did not want American Button Inc. to run the plastic bag business with the plaintiff for fear that the account would be confusing and it was then agreed that Eagle Plastic would be set up and that the plaintiff's interest would be in Eagle Plastic. All expenses would come out of the account of Eagle Plastic. The plaintiff and D1's family would each be entitled to 50% of the business. It was also agreed that the final account would be worked out at the end.

52. The agreement was that the revised plan would only last a short period until the plaintiff's visa status was regulated and the plaintiff would then have the option to revert back to the original plan or to continue with the revised plan.

53. D1 was adamant that the USA investment had nothing to do with the partnership. It was a separate business between the Plaintiff and the Chan's family.

54. Apart from D1, the only other witness for the Defence was Ms Yau Yin who suggested that the cheques for the partnership business were always pre-signed by D3 and kept at the disposal of the plaintiff or his wife. In so far as the cheques for $1,000,000 and $600,000 were concerned, they were pre-signed by D3 and she gave the blank cheques to the plaintiff or his wife for them to fill in the particulars. As for the cheque for $1,060,000, it was made out on the instruction of the plaintiff who told her that raw materials had to be purchased from China. Ms Yau said the plaintiff also gave her the information to compile the voucher in connection with the cheque and the plaintiff also approved it by putting down his signature.

55. Unfortunately, D3 passed away in the course of the trial and was unable to give evidence. A detailed statement of his was admitted as hearsay evidence.

56. In his statement, D3 denied any agreement with the plaintiff on the mode of business operation in USA. D3 preferred to have the production and sale separated. The plaintiff would be in charge of production at his own expenses and D3's family would be in charge of the sale at their own expenses. However it was made clear to the plaintiff that the capital of the partnership could not be used in the USA business, as the mode of operation might not be the same as that of the partnership.

57. It was also agreed that the land asset should be separated from the business. When the factory premises were acquired for about US$500,000 to US$600,000, D3's family had to stand surety for 50% mortgaged sum in the median figure of US$275,000. D3 requested the plaintiff to lend them the sum of US$140,000 as security money so that his family's position would be safeguarded in case the plaintiff failed to keep up with the mortgage payment.

58. D3 denied knowing anything about the purchase of the machineries in the name of the partnership. He also said he was not concerned with the shipping of such machineries to USA. He said when the plaintiff deposited the sum of over $3 million into the joint account of his wife, Wong Nik Yik and his son Chan Wai Shung for onward remittance to USA, the plaintiff expressly told him that it was his money and that the sum of US$138,828.31 would be paid to D3's family as security money since D3's family would be standing surety for him in respect of the mortgage arrangement.

59. The difficulty with the statement of D3 is that it was only completed after the plaintiff had given his evidence. It had not been tested by cross-examination. D3's statement also contradicted the evidence of D1 on the nature of the original agreement with the plaintiff and the existence or otherwise of the revised agreement.

60. D3 tried to explain in his statement why he told the joint receivers in his letter dated 30 December 1998 that the partnership had invested the sum of US$196,416.72 in Eagle Plastic. He said as the plaintiff had stolen over $1 million from the partnership, he thought by stating such sum to be investment by the partnership the joint receivers could get back the money. He also said he did not remember how the figure was arrived at.

61. At one stage, D3 also alleged that the plaintiff had embezzled the sum of $600,000 from the partnership account. After it was established that the $600,000 was in fact shared with his wife, he then suggested that it was a bonus from the partnership.

62. D3 struck this court as someone who was prepared to say what was necessary in order to achieve what he wanted.

63. I am also not impressed by the evidence of the plaintiff, particularly his evidence relating to the sum of $1,060,000.

64. The sum was paid to the plaintiff's personal account in September 1996. It was however entered into the partnership account as an expense for raw materials. The plaintiff himself signed on the payment voucher as purported verification of such expense. The plaintiff claimed to have been acting on the instruction of D3. He said D3 told him to put the money into his personal fixed deposit account for future use in USA as the fiscal year was coming to an end. He also said the false voucher was prepared on the instruction of D3 and when he raised the matter with him, D3 got angry and said he was responsible for the accounts and filing of tax return and what he did was for the benefit of the partnership.

65. There was in my view no conceivable or logical reason for D3 to do what was alleged against him.

66. In the various affirmations filed by the plaintiff, he had never described in details the circumstances in which the sum of $1,060,000 was deposited into his account. In his affirmation dated 24 December 1999, he said "Around April 1997 an amount of approximately HK$1,080,000 was transferred from the account of the partnership into my personal account." In a subsequent affirmation dated 28 July 2000, the plaintiff said, "The 3rd Defendant told me to deposit HK$1.06 million in my account and then to transfer in the manner which I have deposed in my earlier affirmation."

67. The payment voucher is dated 11 September 1996 and was authorized by the plaintiff himself. In the payment voucher, the plaintiff described it as payment for the purchase of raw materials.

68. Eagle Plastic was only set up in April 1997 and on the plaintiff's own case, the discussion about setting up Eagle Plastic only took place the earliest at the end of 1996 or early 1997. Why then would the partnership pay the amount to the plaintiff as early as September 1996 so that he could pay into the joint account with D1 in April 1997 as the partnership's investment in Eagle Plastic? Why should D3 make up a false excuse for transmitting the sum to Eagle Plastic?

69. If it was intended that the partnership would transfer this sum to be used in USA, it could have directly remitted the sums to the joint account shortly before the establishment of Eagle Plastic in May of 1997. There was no need for the circuitous manner as suggested by the plaintiff.

70. As for the alleged reimbursement of the loan of US$100,000 from each of plaintiff and D2, the partnership records did not demonstrate such reimbursement. The plaintiff suggested that on 22 August 1997, the partnership paid a sum of $600,000 to the plaintiff's wife and then on 23 September 1997, a sum of $700,000 was paid to D1's mother. The plaintiff further suggested that on 23 September 1997, he paid the sum of $301,895.05 to D1 and on 27 November 1997, D1 paid him $354,536.20. Such evidence shows that the two of them had in fact shared equally the two sums of $700,000 and $600,000 plus interest. The total sum of $650,000 was meant to be the reimbursement by the partnership in respect of the loans of US$100,000 from each of them.

71. There was no explanation as to why HK$650,000 could be reimbursement for a loan of US$100,000 although the plaintiff did say that in or around May 1998, he and D1's wife each withdrew US$20,000 from the joint USA account.

72. In my view, both the plaintiff and D3 were crafty businessmen who had tried their best to safeguard their own interests at the expense of the other's interest. When they found out what they perceived to be improper conduct on the part of the other, they felt betrayed and seek to put the blame on the other.

73. Despite his effort, D1 was unable to give direct evidence on the arrangement reached between the plaintiff and D3. When he gave evidence in chief, he was hardly able to account for the relevant events that took place in Hong Kong. This was not surprising as D1 was at all material times in USA.

74. When the hearing resumed after the death of D3, D1 was more assertive. But his evidence was based on what he was told and to that extent; it is difficult for the court to place too much weight on such hearsay evidence. But the court do accept his evidence that when he prepared the fax message on 13 June 1997, he was acting on the instruction of the plaintiff.

75. As for Ms Yau Yin, again she clearly had her own master and purpose to serve. I find it difficult to act on her evidence at all.

76. The court finds itself in a rather unenviable position of not being able to rely on much of the evidence of the witnesses.

77. I also feel unable to rely heavily on the fax message dated 13 June 1997 when it was prepared by D1 on the instruction of the plaintiff. But the document itself clearly indicated that Eagle Plastic was to be an investment of the partnership in USA. If D1 found it objectionable to have the partnership investing in Eagle Plastic, he could not have agreed to write out the document in the form as he did.

78. Further there can be no doubt that the $1 million originated from the account of the partnership. It was entered in the account books of the partnership under the heading "美國來往" and the purpose was stated as "for the use the USA Tung Shing "(給美國東成之用).

79. The $600,000 payment was also entered on the partnership ledger under the heading of "美國來往" and the purpose was stated as "for use in USA (Eagle Plastic) (給美國之用(飛鷹))".

80. If the plaintiff or his wife wanted to hide such sums from D3 and intended them to be their personal investment in Plastic Eagle, they would not have allowed the partnership documents to be prepared in such a manner.

81. Similarly the machineries were ordered in late 1996 and early 1997 in the name of the partnership. They were delivered to the partnership address. Invoices in respect of such machineries were all issued to the partnership and payments were made by the partnership. There was also clear evidence that the staffs of the partnership arranged shipments of such machineries to USA.

82. There was no suggestion that the plaintiff tried to hide any of the aforesaid from D3 and D3 must be aware of those matters.

83. Irrespective of whether there was any express agreement between the plaintiff and D3 that Eagle Plastic was to be a partnership business, the plaintiff clearly intended it to be so.

84. There was in my view no logical reason for the Chan's family to object to Eagle Plastic being part of the partnership business. After all they had been co-operating with the plaintiff in the production and sale of plastic bags for a long time and Eagle Plastic was intended to be an extension of such co-operation into USA.

85. D3 must be aware of the payment of the $1 million and $600,000 for the use in USA by Tung Shing or Eagle Plastic. D3 must also be aware of the acquisition of the machineries by the partnership. It D3 had not agreed to such matters being conducted in the name of the partnership, he could and would have raised objection there and then.

86. On the evidence before this court, I am persuaded on a balance of probability that Eagle Plastic was meant to be an extension of the partnership in USA and the investment therein were investment made by the partnership and not personal investment of the plaintiff. Such finding is limited to the investment of the $1 million and the sums of US$100,000 as well as the machineries only.

87. For the avoidance of doubt, it is also my finding that the partnership investment in Eagle Plastic did not include the sum of $1,060,000 and the factory premises at Minnehaha Grove Tract, Los Angeles USA registered in the name of Buttons and Trims, which was a separate and independent entity under the control of D1's brother.

88. Clearly it was the intention of the parties to separate the land assets and the factory business and hence the said premises were acquired in the name of Buttons and Trims instead of Eagle Plastic.

89. The $1,060,000 was remitted by the plaintiff in connection with the acquisition of the said premises, which was a separate investment from the partnership business. In the circumstances, the $1,060,000 must be treated as the plaintiff's personal investment in the said premises and he must account to the partnership for it. As for the ownership of the said premises, it is a matter to be sorted out if necessary between the plaintiff and Buttons and Trims. It is not a matter concerning this court.

90. In the light of the background of the case and the findings by the court, I am of the view that the proper costs order to make is that there will be no order as to costs.

91. The costs order is an order nisi to be made absolute 14 days after the handing down of this decision.