S.Y. CHAN LTD. v. CHOY WAI BOR

HCA 1731/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1731 OF 2000

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J U D G M E N T

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1. On 14 June 2001, I heard 2 applications. The first is an appeal from the order of the master dated 12 March 2001 giving the defendant unconditional leave to defend on the plaintiff's application for summary judgment under Order 14 of the Rules of the High Court, Cap. 4. The second is a time summons issued by the defendant on 21 May 2001 for time to file and serve his Defence. After hearing the submissions of Mr Alan Leong, S.C., leading counsel for the plaintiff, and Mr Bernard Mak, counsel for the defendant, I told the parties that judgment would be handed down (and deemed to have been pronounced by reason of O.42, r.5B) in open Court on 26 June 2001.

Defendant's time summons

2. The defendant sought "14 days from the date of the hearing of the Appeal" to file and serve his defence. The time summons came before the master on 25 May 2001 and he adjourned it to the judge hearing the appeal. If the master had thought that the defendant's application was meritorious, he should have granted the application. By adjourning it to the judge, the master effectively gave the defendant what he asked for, and I do not have a statement in a summary form of the material facts on which the defendant relies for his defence and as brief as the nature of the case admits.

The facts not in dispute

3. The defendant is the drawer of a cheque, No. 000050, requiring Wing Hang Bank Limited to pay to the plaintiff the sum of $6 million ("the Cheque"). The cheque was dishonoured on 8 April 1999 on presentment for payment on the ground that the defendant had countermanded payment.

4. The plaintiff issued the writ on 17 February 2000 and issued the 14 summons on 23 March 2000. On 12 March 2001, the master gave the defendant unconditional leave to defend. On 22 March 2001 the plaintiff gave notice of appeal.

The defendant's case

5. Mr Bernard Mak submitted that:

"the question of under what circumstances the Defendant was asked to give the HK$6 mil cheque in January, 1999 should be answered".

6. I asked Mr Mak to state the relevance of the background circumstances and to formulate the defence. Mr Mak submitted that:

(a) the ostensible contract which appeared on the face of the document at p. B71 (which is a copy of the Cheque, but not dated) was no contract at all, and there was no effectual delivery and the bill remained revocable and incomplete at time of presentation; and

(b) if it was a cheque, it was not payable by reason of material alteration, i.e. insertion of the date of 8 April 1999 (a copy of which is at p. B29).

7. The defendant deposed to the following background circumstances in what I do not know whether it was an affidavit or an affirmation:

"14. I crave leave to refer to paragraph 7-9 of Mr. Chan's affirmation. I must state clearly that the subject cheque was never given in the circumstances as alleged by Mr. Chan. The fact is, in or about January 1999, Mr. Chan told me that his wife was worried that he cannot recover his investment in the project. As his wife knew that he had lent HK$6m to me in 1997, his wife asked him to try to get some evidence to prove the loan to my company. At that time of course I did not appreciate that by the assignment of Manhattan Charm's debts by Antrix to the Plaintiff, I have actually discharged such debt. I have asked Mr. Chan to told (sic) his wife that I have executed the Assignment and that should be sufficient but Mr. Chan insisted that I better gave a cheque just to comfort his wife. In the circumstances, I issued the subject cheque to the Plaintiff which was undated so that he can have it shown to his wife. There is now produced and shown to me marked 'CWB-8' a copy of the undated cheque for HK$6,000,000.00. The cheque has nothing to do with the Loan Agreement dated 4th August, 1998 at all and was delivered to Mr. Chan before maturity of the debt under Loan Agreement dated 4th August 1998.

15. The cheque was tendered and dishonoured because I never expect it to be presented at all. I did ask Mr. Chan why he presented the cheque to bank for payment and again Mr. Chan said it was his wife who wanted so. But he said as I should not be troubled by this minor matter and I thus simply left this matter behind and proceed further with the project."

Action on a dishonoured cheque and the parol evidence rule

8. It has been said time and again that bills of exchange are treated as cash, Hong Kong Civil Procedure 2001, paragraph 14/4/19. In view of the formal nature of negotiable instruments, to admit extrinsic evidence would undermine the certainty and finality which ought to attach to each party's promise on the instrument, Chalmers and Guest on Bills of Exchange, Cheques and Promissory Notes, 15th edition, paragraph 385.

9. A cheque is an unconditional order in writing, drawn and signed by the drawer, requiring the banker to pay on demand a sum certain in money to, or to the order of, a specified person or to bearer, sections 3 and 73 of the Bills of Exchange Ordinance, Cap. 19. The drawer of a cheque, by drawing it, engages that, on due presentment, it shall be paid according to its tenor, and that if it is dishonoured he will compensate the holder, provided that the requisite proceedings on dishonour are duly taken, section 55(1)(a). Extrinsic evidence is, in general, inadmissible to prove that the terms of the contract differed from those expressed in writing on the cheque, Chalmers, paragraph 384.

10. The main issue in this appeal is whether the defendant's evidence on what was said at the time of issue of the Cheque is admissible.

Local decisions on dishonoured cheques

11. There are numerous local decisions on the admissibility of evidence in an action on a dishonoured cheque. Neither counsel listed any of them in their respective lists of authorities.

12. In Suen Ho Sun v Kamenar International Limited [1989] 1 HKC 135, CA, reliance was placed on the following affidavit evidence to contend that there was conditional delivery of the cheque within section 21 (at p. 137 G):

"In the premises, there was a clear and mutual understanding between the plaintiff and the defendant that the drawing and delivery of the said cheque was subject to a condition precedent that the plaintiff would only be paid on the said cheque if the said goods were accepted by the defendant' s overseas Italian buyer as grade 3 angora rabbit hair, and that the plaintiff would not present the said cheque for payment unless and until the said goods were accepted by the defendant's overseas Italian buyer as grade 3 angora rabbit hair."

13. The argument was rejected by the judge (Deputy Judge Rogers, as he then was). Hunter JA, delivering the leading judgment in the Court of Appeal, affirmed the judge's decision (pp. 138 A - I):

"Before the judge below, two points were taken. Firstly, it was said that there was conditional delivery of this cheque within s 21 of the Ordinance and reliance was particularly placed upon para 28 of the affirmation which I have just read. Secondly, it was said that there was a total failure of consideration.

The judge rejected both those arguments, and in my view, he was quite right to do so. As far as conditional delivery is concerned, I can see nothing in the evidence filed which starts to make out a true case of conditional delivery of a cheque. It is important to bear in mind that this is a limited defence. This appears from Byles on Bills of Exchange(25th Ed) p 373, where the author comments upon the selfsame section which fortunately has the same number in the English Bills of Exchange Act. He says:

the section allows evidence to be led (other than as against a holder in due course) that there was no delivery by the defendant with the intention of transferring property in the instrument . . . or that the delivery was subject to the fulfilment of a condition suspending the operation of the instrument.

In my judgment, there was no such condition here at all. This cheque was simply delivered as a cheque in part payment of the purchase price, the payment of the 'balance of 30%' of the purchase price, as the deponent described it. What was really sought to be done here was to vary the conditions of payment by oral agreement. The cheque, as it stood, was an unconditional order in writing by the defendants to their bankers to pay the sum named to the plaintiff on or after 4 January. When all these oral conditions are read into it, the effect is quite different. It becomes, first, a conditional order to pay, conditional upon acceptance of the goods by the sub-buyer. Secondly, it is not an order to pay on or after 4 January; it is an order to pay only after such acceptance happens and is communicated. Thirdly, by a second affidavit, it is said to be an unconditional order to pay unless countermanded earlier by this defendant. This really left the document totally worthless in the plaintiff's hands.

That defence was considered and rejected by the trial judge. He referred to the leading authorities: New London Credit Syndicate Ltd v Neale (1898) 2 QB 487 , where one finds the principle particularly in the judgment of AL Smith LJ at p 490 and Vaughan Williams LJ at p 491; Hitchings & Coulthurst Co v Northern Leather Co of America (1914) 3 KB 907, a decision of Bailhache J; and thirdly, the Hong Kong decision of Great Sincere Trading Co Ltd v Swee Hong & Co (1968) HKLR 660 . All of these cases show that attempts like this to alter the terms of payment are quite inconsistent with the written instrument and are not admissible in evidence."

14. In Great Sincere Trading Co. Ltd. v Swee Hong & Co. [1986] HKLR 660, Mills-Owens J considered the defence that the cheque was given subject to an express oral condition that it should not be presented for payment until a foreign firm had put the defendants in funds to meet it. Counsel for the defendants relied on section 21(2)(b). The judge held at pp. 664 - 665 that there was no arguable issue:

"The question is whether the arrangement referred to in para. 14 of the defence affidavit, assuming it to be true, affords an arguable issue. It is relevant to observe that the arrangement, as it is expressed in the affidavit, was not for presentation when funds became available; it is expressed as the issue of the cheque subject to the condition that it would be honoured only if Lampong put the defendants in funds before the due date. It is not, therefore, at least in terms, a case where the alleged oral arrangement was for the cheque to operate on a date-different, or possibly different, from the due date; in other words, it is not - in terms - an arrangement intended to defer the date of payment, in contradiction of the date expressed in the cheque. Is it a case then of the cheque being delivered as a mere escrow; was it, in the terms of section 21(2)(b), delivered conditionally and not for the purpose of passing the property in it? In my view, it is not such a case. The evidence of the alleged oral arrangement, as I see it, is an attempt to qualify the nature or tenor of the instrument; an attempt to introduce into the unconditional order for payment expressed by the instrument itself, a condition contrary to its terms. It is as if when the cheque was handed over the defendants said: 'This is a cheque which is not a cheque unless we are put in funds'. The defendants, no doubt, would say their statement should be taken as: 'This piece of paper is only to become, or be treated as, a cheque if and when we are put in funds'. But whichever way it is put the effect is to contradict the instrument, in the circumstances of the case, and that the defendants cannot be permitted to do on the strength merely of oral evidence. As it stated in Byles on Bills (21st Edn.) at p. 110: -

'No mere oral agreement can have any effect at law in controlling the instrument, if contemporaneous with the making of it; for that would be to allow oral evidence to vary the written contract.'

If the existence of the written contract has to be conceded, as it must on the giving of a cheque, oral evidence is inadmissible to vary or contradict its terms. It may be said that what the defendants seek to allege is a contemporaneous oral agreement showing that what purported to be a complete contract, the cheque, never came into operative existence (Charmer's (13 Edn.) p. 57). In my view, that is not the proper interpretation to be placed upon the alleged oral arrangement, which, as I see it, sought to qualify the order for payment, to qualify the tenor of the instrument, to operate in defeasance of it, not to suspend the contract embodied in it. It is to be noted that according to the alleged arrangement it was the defendants who were to be placed in funds; it is as if a cheque was given on the terms that it would be honoured if the Bank account of the drawer happened to be in funds sufficient to meet it but otherwise not; that would be in complete contradiction of the instrument. To put it another way, the alleged arrangement for the cheque to be met only if the defendants were put in funds by Lampong in effect introduced a contingency into the unqualified contract created by the cheque. I would refer generally to the cases of Foster v. Jolly and Abbey v. Crux."

15. In Ken Kee Securities Co. v Wong Ying Cheong (No. 1) [1973-1976] HKC 55, Trainor J considered the following defence and held that whether the cheques were handed over as escrows was a matter of fact and a proper issue to be tried (at p. 57 and p. 60H):

"In the defence it is alleged that about the middle of March 1973 on the defendant's instructions the plaintiffs purchased 5,000 shares at $11.10 each, the total cost of which amounted to $56,001.50 at which time the plaintiffs owed the defendant $10,000, being a balance due for work done for them. On 23 March the defendant was asked to pay an instalment of $20,000 and to give an undated cheque as security for the balance. The defendant proposed that he gave a cheque for $10,000 and that the balance of $10,000 due to him be utilised to make up the difference. It was counter-proposed by the plaintiffs that the defendant give a cheque for $20,000 and the plaintiffs would give him a cheque for $10,000, the balance due for the work done. (It was submitted before me that this might be for accountancy purposes). The defendant gave his cheque but the plaintiffs did not give theirs and as a result of the plaintiffs' default the defendant's cheque was not met. On being notified of this the defendant gave another cheque for $10,000 which was duly presented and honoured and this, it is pleaded, together with the $10,000 balance due to him redeemed the first cheque and discharged his obligation to the plaintiffs so far as it was concerned.

At the time the defendant gave the first cheque he also gave an undated cheque in the amount of $34,001.50 as security for the balance due for the share purchase. He gave this on the understanding and assurance of the plaintiffs that it would not be presented until such time as agreed between the parties. In addition the plaintiffs held the share certificates which, the defendant alleged, were to be held as further security and returned contemporaneously with the presentation of the cheque."

16. I question whether the above is still good law after Suen Ho Sun. In Ken Kee, what was really sought to be done was to vary the conditions of payment by oral agreement. The cheques, as they stood, were unconditional orders in writing by the defendant to his bankers to pay the sums named to the plaintiff on demand. When all the oral conditions were read into it, the effect was quite different. One became a conditional order to pay, conditional upon the plaintiffs subsequently giving the defendant a cheque for $10,000. Secondly, it was not an order to pay on demand or on or after the date of the cheque; it was an order to pay only upon and after further agreement. These attempts to alter the terms of payment were quite inconsistent with the written instruments and were held by Suen Ho Sun to be not admissible in evidence.

17. In Man Sun Finance (International) Corporation Limited v Wong Kwan-Man, [1982] HKLR 146 at p. 148 (reversed on appeal on the ground that the defendant there did not succeed in displacing the presumption in section 30, Man Sun Finance (International) Corporation Limited v Wong Kwan-Man, Civil Appeal No. 34 of 1982, 5 May, 1982, Hon. Leonard VP, Cons JA and Kempster J, unreported) Barnes J held that evidence on an oral agreement between the parties made contemporaneously with delivery of the cheque that it would not be presented by the plaintiff for payment was not admissible:

"At the trial the defendant sought to adduce evidence with a view to establishing (1) that there was an oral agreement between the parties made contemporaneously with delivery of the cheque that it would not be presented by the plaintiff for payment and (2) that there was no value given for it. Leading counsel for the plaintiff objected that the evidence sought to be so led under (1) above was inadmissible. It was, however, agreed between counsel for both parties that I should take the evidence first and rule upon the issue after hearing their submissions on admissibility. Those submissions were made during counsels' final addresses and I now give my ruling.

It is a general rule that evidence of a parol agreement contradicting a term of a contemporaneous written agreement is inadmissible. A cheque is, by statutory definition (Section 3(1) Bills of Exchange Ord.), a bill of exchange payable on demand or at some future time. The defendant seeks to adduce evidence that there was an oral agreement that the cheque was not to be payable at all. He, therefore, seeks to prove an oral agreement denying the existence of an essential characteristic of the instrument he admits by his pleading to be a cheque. He is not allowed to do that. But he can adduce evidence to show that there was no consideration for the cheque. (Foster v. Jolly, per Parke, B. [1835] 1 Cr. M. & R. 703) I rule, therefore, that the evidence led for the purpose of showing that the cheque was not payable is not admissible but the evidence led for the purpose of showing that there was no consideration for it is admissible."

18. In Sum Wing Credits Limited v Shun Yip Textiles Limited and another [1988] HKC 405 at pp. 409 - 410 (reversed on appeal on another point in Sum Wing Credits Limited v Shun Yip Textiles Limited and another [1990] 1 HKLR 440), Godfrey J (as he then was) held that an argument of conditional delivery ('if your cheque is not met then I shall not be obliged to meet mine') was rightly abandoned:

"The original defence that the cheque was delivered conditionally so that the delivery to the indorsee was ineffectual (see s 21) was eventually and in my view rightly abandoned ...

The drawer stipulated that the drawer's cheque should (and expected that it would) be returned to it within a short time, but that is another matter altogether. The drawer was quite prepared, if the drawer's cheque was not so returned, to present the payee's cheque for payment and allow its own cheque, for the same amount, also to be presented for payment. The condition was a condition subsequent, ie a condition of defeasance ('if your cheque is not met then I shall not be obliged to meet mine') not a condition precedent to the effectual delivery of the cheque and the coming into force of the drawer's obligation: compare Hitchings and Coulthurst Co v Northern Leather Co of America and Doushkess (1914) 3 KB 907. As that case shows, I cannot receive evidence of such an arrangement in breach of the parol evidence rule, to contradict the terms of the drawer's cheque which does not suggest any such condition of defeasance on its face. (And see also New London Credit Syndicate Ltd v Neale (1898) 2 QB 487.)"

19. In Lui Po Nam trading as Shunyi Company v Century Regal Limited, HCA Action No. 9587 of 1999, 28 September 1999, unreported, Sakhrani J held that there was no triable issue on the defence of conditional delivery of cheques conditional on the goods supplied being of merchantable quality; that the written documents were unconditional; and the alleged oral condition would be inadmissible to vary or contradict the terms of the written contract expressed by the cheque itself.

20. In Prosperity Lamps & Components Ltd v Rotegear Corp Ltd. [2000] 2 HKC 638 at pp. 640 and 642, Cheung J held that evidence on the following alleged oral agreement to be not admissible:

"The defendant's defence to the cheques is this. Ms Lily Chang of the plaintiff informed Mr Hugh Wong of the defendant that she was pressed by the accounts department of the plaintiff to recover money advanced by the plaintiff for the project. She asked Mr Wong to do her a favour by issuing post-dated cheques to the plaintiff so that she could show the cheques to the accounts department in order to alleviate the pressure on her.

Mr Wong told her that according to the terms of the joint venture agreement, the defendant was not liable to make payment to the plaintiff out of its own pocket. The defendant was only required to make payment to the plaintiff after it received interim payment from the contractor. However, at the requests of Ms Chang, Mr Wong agreed to issue the post-dated cheques to the plaintiff but told her that the said cheques were drawn and delivered to her for the purpose of showing them to the accounts department in order to alleviate the pressure on her. The plaintiff should not present the cheques for payment unless and until the contractor had made payment to the defendant and without the prior consent of the defendant. Ms Chang agreed. The contractor failed to pay the defendant and as a result the defendant is not liable to the plaintiff. The allegations are denied by the plaintiff.

...

In the present case, the effect of the alleged oral agreement is to render the cheques to be meaningless. They are not to take effect until some third party had paid the defendant first. In other words, if the defendant was not paid by the third party, it did not need to pay the plaintiff at all. This is not a condition suspending the operation of the cheques but in defeasance of the undertaking to pay. This clearly falls foul of the parol evidence rule. Oral evidence is not admissible because it contradicts the terms of the written instruments, namely the cheques. The situation is covered in Great Sincere Trading Co Ltd v Swee Hong & Co (1968) HKLR 660, when Mills-Owens J at 664 stated this:

It is as if when the cheque was handed over the defendants said: 'This is a cheque which is not a cheque unless we are put in funds'.

See also Chitty on Contracts (28th Ed) Vol 1, para 12-099 and Neo-Concept Industrial Co Ltd v Sportex Industrial Ltd (1992) 2 HKC 452."

21. In Hongkong Chinese Bank Ltd. v Delon Photo & Hi-Fi Centre Ltd. [2000] 3 HKC 71 at pp. 77 and 78, I applied Man Sun Finance and held that condition (i), i.e. the cheque was to be a good-will and a good-faith gesture and that the cheque would not be taken as a means of deposit, was inadmissible:

"Further, condition (i) that the Cheque would not be taken as a means of deposit is neither here nor there and does not begin to help the defendant unless the defendant was saying that the Cheque would not be presented for payment or would not be payable at all. The defendant clearly admitted by its Amended Defence that the Cheque was a cheque and as Barnes J. said in Man Sun Finance (International) Corporation Limited v Wong Kwan-Man, [1982] HKLR 146 at p. 148 (reversed on appeal on the ground that the defendant there did not succeed in displacing the presumption in section 30, Man Sun Finance(International) Corporation Limited v Wong Kwan-Man, Civil Appeal No. 34 of 1982, 5 May, 1982, Hon. Leonard VP, Cons JA and Kempster J, unreported) such evidence is inadmissible".

22. In Lee Man Ching Mandy trading as Blossom Industrial Company v Chiu Hing, a District Court decision handed down on 22 February 2001, the District Judge thought that it was a case of delivery under section 21(2) and preferred the reasoning of Trainor J. However, Cheung J, delivering the judgment of the Court of Appeal, CACV 515/2001, 24 May 2001, held that what was in issue was whether there was an agreement about the 2 cheques after the issue of the 2 cheques.

Admissibility

23. The defendant's case is that he issued the undated subject cheque to the plaintiff so that he could show it to his wife and that he never expected it to be presented at all. There is no allegation that the plaintiff agreed that it should not be presented at all. In my judgment, the defendant's case that he never expected the subject cheque to be presented is not distinguishable from Man Sun Finance (an oral agreement between the parties made contemporaneously with delivery of the cheque that it would not be presented by the plaintiff for payment), Prosperity Lamps (being asked to do a favour by issuing post-dated cheques so that she could show the cheques to the accounts department in order to alleviate the pressure on the plaintiff), and condition (i) in Hongkong Chinese Bank (the cheque was to be a good-will and a good-faith gesture and would not be taken as a means of deposit). In all these cases, the judges ruled that oral evidence was not admissible.

24. In my judgment, what the defendant is attempting to do is to contradict by oral evidence his written engagement that, on due presentment, the Cheque would be paid according to its tenor, i.e. unconditionally and on demand. This is not permissible, and based on the local cases cited above, I hold that the defendant's evidence on what was said at the time of issue of the Cheque is not admissible.

Delivery of the Cheque

25. Mr Mak tried to overcome the difficulty by contending that there was no effectual delivery and the bill remained revocable and incomplete at time of presentation. He was unable to draw my attention to any authority. Many of the cases cited above had considered and rejected the argument of conditional delivery.

26. While it is true that under section 21(1) every contract on a bill, whether it is the drawer's, the acceptor's or an indorser's, is incomplete and revocable, until delivery of the instrument in order to give effect thereto, delivery means no more than transfer of possession, actual or constructive, from one person to another, section 2. Since the Cheque is no longer in the possession of the plaintiff drawer, there is a rebuttable presumption under section 21(3) of a valid and unconditional delivery by him. The delivery of the Cheque to the plaintiff was made by the plaintiff himself and thus satisfied the requirement of effectual delivery under section 21(2)(a). Mr Mak sought to rely on section 21(2)(b) to argue that the delivery of the instrument was "conditional or for a special purpose only, and not for the purpose of transferring the property in the bill". But the defendant's case is not, in the words of Hunter JA, a true case of conditional delivery. The instrument was not delivered in escrow. His case is not one of suspending the operation of the instrument. He is seeking to import terms in defeasance of the instrument. Nor was the transfer of the instrument to the plaintiff for a special purpose within the meaning of section 21(2)(b). His case is not that there was property in the bill but his special purpose was not for the purpose of transferring the property. His case was that there was no property in the instrument.

27. Section 12 is clearly not applicable to cheques since they are demand bills.

Dating the Cheque

28. Mr Mak also contended that by reason of the plaintiff's material alteration by inserting the date of 8 April 1999, without the assent of the defendant, the Cheque was avoided under section 64.

29. If the date is a material particular, then the plaintiff has a prima facie authority under section 20(1) to fill up the omission in any way he thinks fit. There is no allegation and no evidence that the defendant did not assent to the plaintiff dating it 8 April 1999. The defendant's case is that he never expected the plaintiff to present it. Mr Mak's submission fails.

30. Further, section 64 does not apply to filling up an omission, Chalmers, paragraph 1665.

31. Section 3(4)(a) provides that a bill is not invalid by reason that it is not dated. Section 10(1)(b) provides a bill in which no time for payment is expressed is payable on demand. Section 13(2) provides that a bill is not invalid by reason only that it is ante-dated or post-dated or that it bears date on a Sunday or any other holiday. Trainor J held in Ken Kee that the undated cheque was a valid bill of exchange.

Consideration

32. Mr Mak also contended that there was no consideration. The defendant drawer is prima facie deemed by section 30(1) to have become a party thereto for value. By the Loan Deed dated 4 August 1998, the defendant guaranteed half of the indebtedness of Manhattan Charm Limited to the plaintiff under the loan of $12 million repayable on 31 March 1999. There is no allegation of any repayment of by Manhattan Charm Limited of its indebtedness or any part thereof. The Cheque is dated 8 April 1999. In my judgment, there is no arguable case of failure of consideration.

Order

33. For the reasons I have given, there is no triable issue and there is no other reason why there ought to be a trial. The appeal must be allowed and I order that:

(a) The Order of the master dated 12 March 2001 be set aside.

(b) Final judgment be entered in favour of the plaintiff against the defendants for the sum of $6,000,000, with interest at judgment interest rate(s) from 8 April 1999.

(c) The defendant's summons dated 21 May 2001 be dismissed.

34. I make the following order nisi on costs:

(d) The defendant do pay the plaintiff the costs of this action including the costs of the application for summary judgment before the master and the judge, costs of the summons dated 21 May 2001, and all costs reserved.