DE SILVA SAMARASINGH BALAGE A.A. v. JOHN ALAN BRODIE

DCCJ 229/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO.229 OF 2001

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J U D G M E N T

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1. In this action, the Plaintiff, a Sri Lankan domestic helper, sues the Defendant, her former employer, for various sums of money following the early termination of her contract of employment with the Defendant.

2. According to the evidence, the Plaintiff came to Hong Kong and worked as a domestic helper in 1996. In June 1998, she started working for the Defendant and his family. The Defendant was and is a businessman doing business in Hong Kong and the Mainland. The Plaintiff was hired mainly to look after the two infant children of the Defendant and his wife, who were almost 3 years' and several months' old respectively when the Plaintiff first started working for the family. The contract was a standard term one and expired in June 2000. It was renewed for another term of two years, but either side could terminate the contract by one month's notice or payment of one month's wages in lieu of notice. The second contract came to an early end on 8th September 2000.

Factual disputes

3. There are two major areas of factual dispute in this case. First, according to the Plaintiff who gave evidence at trial, right from the very beginning, it was orally agreed between her and the Defendant that instead of taking her rest days and statutory holidays, the Plaintiff would work for the Defendant without any holidays in return for pro rata wages. This she said she did, particularly after the departure of the other Filipino maid employed by the Defendant during her first contract. So not only did she take care of the two small children, she did the household work in the family of four as well, which lived in a house in Sai Kung but subsequently moved to another house in Clearwater Bay. She said originally her salary was $3,860 per month but it was subsequently increased to $4,200 per month as she had to do the general household work as well after the departure of the other maid. On top of that, she said she was also entitled to a monthly food allowance of $500. She said she also accompanied the family to travel to England during family holidays and to look after the two children there.

4. The Plaintiff said originally the Defendant's wife told her that she would be paid the money due to her for working on her rest days and statutory holidays at the end of her contract. She was happy with this arrangement because this would help her to save up money. When the first contract expired and was renewed, she inquired about payment of the money due to her. She was told by the Defendant over the telephone that the money would be paid to her when she eventually left. She said she was not happy with this but there was really nothing she could do. As she was in need of some money, she therefore asked the Defendant's wife for a loan of $10,000, which was agreed to by the wife of the Defendant. And it was also agreed that the loan was repayable by five monthly instalments of $2,000 each to be deducted from her monthly salary. The Plaintiff said when she was suddenly asked to leave on 8th September 2000, she asked the Defendant's wife to pay her the money due to her for the work she had done on her rest days and statutory holidays. She was told by the Defendant's wife that she had no money to pay her. So she left without receiving any payment, and thereafter she filed a complaint with the Labor Department.

5. The Defendant gave evidence and denied that any such payment was owing to the Plaintiff. According to the Defendant, when the Plaintiff first worked for his family, she just took care of the two small children. But she did not get along quite well with the other Filipino maid and eventually he and his wife decided that they would ask the Filipino maid to go because for the sake of their children the family needed the Plaintiff more than the Filipino maid. That was in November 1998. At that time, he and his wife thought of hiring a new maid. But the Plaintiff suggested to him that she could take over the household work by herself, working on rest days and statutory holidays as well. In return, the Defendant would pay her an extra $540 per month and give her days off in compensation of her rest days and statutory holidays. With the extra payment of $540 was concerned, and together with her basic salary of $3,860 per month as well as a food allowance of $300 per month as per the contract of employment, she would receive a total of $4,700 per month. As far as her compensating days off were concerned, they would be taken whilst the Defendant and his family were away on annual holidays during summer (about 1 month), Christmas (around 3 weeks) and Chinese New Year (around 1 week), as well as miscellaneous holidays. So that was the agreement reached between the two. But after a few months, the Defendant found that the Plaintiff could not cope with her duties of looking after the children as well as doing the household work all by herself, and so he hired a second helper in 1999. But the arrangement with the Plaintiff remained intact in order to keep the Plaintiff happy, as after all she was the nanny taking care of the two children.

6. The Defendant explained that in fact, during the time when the Plaintiff worked for his family, there were two occasions during the first contract when the Defendant took the Plaintiff with his family to spend their holidays in England. So on those two occasions, she could not take her compensating days off. What the Defendant therefore did was to pay the Plaintiff double her salary during the time she went with the family on holidays as compensation for the Plaintiff's loss of the compensating days off. So according to the Defendant, he had paid and accounted for, and in fact overpaid and more than sufficiently accounted for, all the rest days and statutory holidays that the Plaintiff had worked for his family, and he owed her nothing.

7. Likewise, as for the Plaintiff's annual leave (7 days per year), it had been taken care of by the above arrangement, particularly taking into account the two private trips taken by the Plaintiff to Sri Lanka in 1998 (14 days) which took place during the time the Defendant's family was away from Hong Kong and to Sweden in 2000 (11 days) respectively.

8. The Defendant's wife also gave evidence at trial. She confirmed that she indeed paid the Plaintiff a double salary after her return from UK in August 1999 and before the Christmas trip to UK in December 1999 respectively. She also said that at the beginning of the Plaintiff's first contract with her family, she voluntarily gave the Plaintiff an extra $200 as a sort of supplemental allowance which she lumped together with the contractual food allowance of $300. After the oral agreement was made between the Plaintiff and her husband, the Defendant's wife paid the Plaintiff a total of $4,700 every month, but continued to treat $500 of the Plaintiff's total remuneration as food allowance as before. She also said there was no way the Plaintiff could have worked 365 days a year for her family. Apart from the compensating days off she got whilst her family was away, the Plaintiff also took time off from her work to attend to her personal affairs from time to time with her permission. The Defendant's wife said in evidence that during the time when the Plaintiff was the only helper in the household, she had two part-time helpers to help her do the household work and take care of the children, particularly when the Plaintiff was having her time off.

9. To all this, the Plaintiff's reply basically was that her total monthly salary of $4,700 comprised $500 for food as evidenced by the monthly salary slips written by the Defendant's wife and the remainder as her increased salary on account of her having to cover the general domestic work used to be done by the Filipino maid who had left. She denied that she was paid double during the months she spent with the Defendant's family in UK. As for the time she stayed alone in Hong Kong when the family travelled to UK for holidays, she said she was assigned work to do by the Defendant and his wife (which was denied by the Defendant and his wife). So apart from the two trips she took to Sri Lanka and Sweden for personal reasons, she never had any so-called compensating days off and she never received any double salary.

10. The second major area of dispute relates to the circumstances under which the employment contract was terminated in early September 2000. According to the Plaintiff, she had been doing well in her contract with the Defendant. In early September 2000, she had a cousin coming to Hong Kong under a tourist visa. With the permission of her employer, he stayed in the house of the Defendant for a few days. After he left he was arrested by the police for suspected indecent assault. On 8th September, whilst she tried to ask her employer to give her a few hours off to go to the police station relating to her cousin, she was told to go to the employer's office instead to collect her termination letter and recommendation letter. According to the Plaintiff, she was taken by surprise. She went to the office and met there the Defendant's wife who gave her two letters to sign. One was a termination letter to the effect that the contract was terminated by payment of 1 month's salary in lieu of notice which was to be deducted from the outstanding loan due to the employer (then in a sum of $6,500), that the Plaintiff owed the Defendant telephone bills in a sum of $555.98, that therefore the Plaintiff owed the Defendant a net sum of $2,859.98 which should be repaid as soon as possible, that an air ticket to Sri Lanka was thereby given to the Plaintiff for her return to her home country, and that the Plaintiff had no further claim. The Plaintiff said she did not read the letter at the time but simply signed as told. It was also signed by the Defendant's wife. The Defendant's wife also gave the Plaintiff a reference letter to the effect that she had worked very hard and looked after the two children well, and that the reason for termination of contract was because the employer had "very difficult cash problems". The letter was signed by both the Defendant's wife and the Plaintiff.

11. As mentioned above, on this occasion, the Plaintiff asked the Defendant's wife for payment of her remuneration for working on her rest days and statutory holidays. The Plaintiff said in evidence that the wife opened her wallet and told her she had no money to pay her. So she received nothing and left.

12. In those circumstances, the Plaintiff claims in this action, amongst other things, 1 month's salary in lieu of notice (subject to the deduction of the outstanding loan of $6,500), as well as severance payment or alternatively long service payment.

13. The Defendant and his wife both gave evidence to explain why the Plaintiff's contract of employment was terminated. They basically said that towards the last few months of the Plaintiff's stay with their family, the Plaintiff was always on the phone, leaving the children unattended. She had been warned twice by the Defendant's wife in July 2000 before the Defendant's family went on its annual summer visit to UK and in August 2000 after the family came back from UK respectively. But the Defendant's wife found that there was no improvement on the part of the Plaintiff who continued to use the telephone all the time. Whenever she called home from office, she could not get through. Moreover, the Defendant and his wife discovered from others in late August 2000 after they returned from England that the Plaintiff had advertised in Park N Shop in Clearway Bay for doing part-time job during the time when they were in England. Moreover, he and his wife heard from others that at around that time the Plaintiff was engaged in placing Sri Lankan persons to work for Hong Kong employers and they suspected that that accounted for many of her telephone calls. Then came September and the couple learned that the so-called cousin who had at the request of the Plaintiff been allowed to stay at their house together with the two children for a few days was arrested by the police for indecent assault, and the Plaintiff was apparently preoccupied with her cousin's problem and totally neglected the two children. And on 6th September, when the Defendant and his wife were out for work, their younger son opened a drawer at home and the drawer fell down on his toe. The small boy was seriously hurt, losing his toe nail, and was taken to hospital for treatment. This happened whilst, so the Defendant and his wife learned from their second domestic helper, the Plaintiff was talking on the telephone in another room relating to the arrest of her cousin.

14. The Defendant and his wife, who had throughout tried to keep the Plaintiff happy as she was the nanny of the two children, finally decided that enough was enough, and they told the Plaintiff on the 6th that she was summarily dismissed. On the 8th, the Plaintiff was told to go to the Defendant's office to pick up a termination letter. According to the Defendant, he was then in the Mainland, and he dictated over the telephone the termination letter to a member of his staff in Hong Kong who typed out the letter. According to the Defendant, he did not mention in the letter that the Plaintiff was summarily dismissed because this would make life very difficult for the Plaintiff in future. So he wrote to the effect that the contract was terminated by payment in lieu of notice. According to the Defendant, this did not matter to him because anyway the Plaintiff owed him $6,500 at that time which was more than sufficient to set-off the so-called payment in lieu of notice. As for the balance of the outstanding loan, he knew the Plaintiff had no money to repay him after the termination of the contract and he did not really mind. So he wrote her the termination letter and gave her the air ticket to go home, which was done on his behalf by his wife in office.

15. According to the Defendant's wife, the Plaintiff read the termination letter in the office before she signed it. The Plaintiff also asked her to write her a reference letter to facilitate her finding a new job in Hong Kong. When the Defendant's wife asked her what could she write given the circumstances of her departure, the Plaintiff kept crying and begged her to write her a reference letter saying that she was asked to go because of financial difficulties on the part of the Defendant, as this would assist her in finding a new job. The Defendant's wife agreed as requested out of sympathy for her situation. The Defendant's wife said at no time did the Plaintiff mention to her that she or her husband owed the Plaintiff any rest day pay or statutory holiday pay. She also said in evidence that as the Plaintiff claimed that she had no money, she gave her $300 cash before she left. She also gave her an air ticket for a flight home on the following day.

16. In this regard, the Defendant said in evidence that at that time he and his wife did not know that if a foreign domestic helper's contract was terminated early due to financial difficulties on the part of the employer, the Immigration Department would allow the helper to stay in Hong Kong to look for another job. The Defendant denied in evidence that at that time he was having any financial difficulties at all. According to him, he was and is the employer of 1,200 employees in Hong Kong and the Mainland.

17. So at the trial, although the Defendant did not want to go back on what he had caused to be written in the termination letter about the payment in lieu of notice (although in truth the Plaintiff was summarily dismissed by him on 6th September), he did dispute the Plaintiff's claim for long service payment. As for the Plaintiff's alternative claim for severance payment, the Defendant said the Plaintiff's departure had nothing to do with redundancy at all. He said after the Plaintiff's departure, his other maid took over part of the duty of looking after the two children, and his wife also started to work part-time in order to spend more time with her kids. Further in November 2000, he hired a male helper to take the children to school and help out generally in looking after the children.

18. To all this, the Plaintiff's basic reply (apart from maintaining her own story about what had happened as described above) was that she did not make excessive telephone calls, some of the calls to Sri Lanka recorded in the telephone bills were not made by her, she did not take part in any part-time job or place any advertisement for part-time job, her cousin was innocent, she was not involved in bringing people from her home country to work in Hong Kong, she did not neglect her duties, the younger child was not hurt in any accident at all and she was not aware of any.

Findings of fact

19. Having listened to the evidence given by the witnesses and closely observed their respective demeanour in Court, and having taken into account the documentary as well as circumstantial evidence in the present case, I have come to the conclusion that the case and evidence of the Defendant and his witness (i.e. his wife) are to be preferred.

20. In relation to the first main issue, I accept basically the Defendant's account of what was agreed between the parties. Further, I find, on a balance of probabilities, that the Defendant has pursuant to what was agreed between the parties adequately and sufficiently remunerated the Plaintiff for the work done on her rest days and statutory holidays. I accept the Defendant's and his wife's evidence that the Plaintiff has been given more than sufficient compensating days off and paid double salary in two months in lieu of compensating days off, and the increased monthly salary of $4,700 also formed part of the compensation or remuneration to the Plaintiff for her extra work. I do not accept the Plaintiff's evidence that she has not been compensated for her work.

21. In particular, I do not accept the Plaintiff's evidence that her remuneration or compensation was to be paid upon her leaving the Defendant's family. In this regard, I find the Plaintiff's story difficult to square with the loan of $10,000 which she borrowed from the Defendant or his wife when the second contract was made. According to her story, by then her employer was owing her a substantial amount of money in excess of $10,000 on account of her extra work on her rest days and statutory holidays, and she was in need of money. It is difficult to understand how in those circumstances she would have been contented with the Defendant's unilateral suggestion that payment of the money due to her should be postponed until the time she stopped working for the family, thereby effectively forcing her to borrow a loan of $10,000 from the Defendant. And the money would remain with the Defendant for an indefinite period of time depending on how long the Plaintiff would have continued working for the Defendant. The Plaintiff would have no use of the money during the meantime, and no interest would be payable on the money due and owing, which was, moreover, increasing in amount all the time as the Plaintiff continued to work for the Defendant on her rest days and statutory holidays. Further, if the Defendant's wife could give the Plaintiff the sum of $10,000 as she did, there was no reason why the money should not have been given to the Plaintiff as part-repayment of the money due and payable to the Plaintiff, yet it was given in the form of a loan. But not only that, the loan had to be repaid by 5 equal monthly instalments of $2,000 each to be deducted from the Plaintiff's salary of $4,700, i.e. a deduction of almost 43% of the Plaintiff's monthly income which from any angle was a substantial deduction, not to mention the Plaintiff's financial need at the time. If the Defendant was really owing the Plaintiff money by way of rest day pay and statutory holiday pay (the total amount in relation to which up to the determination of the contract of employment in September 2000 was in excess of $18,000), it would be difficult to see or understand how the Plaintiff could have agreed to the arrangement. At the very least, repayment of the loan could have been made by way of a set-off against the money due and owing by the Defendant to the Plaintiff, instead of by deduction from the salaries.

22. In so saying, I have already borne in mind the fact that generally speaking, foreign domestic helpers do not have equal bargaining power vis-à-vis their employers, and may not be in a good position to argue or bargain with them. But even after giving due allowance for that, I still find the Plaintiff's story difficult to square with the loan. I also note that the Plaintiff's bargaining power or standing in the present case was somewhat higher because she was the nanny of the children of the Defendant who and whose wife obviously regarded the Plaintiff as someone more than an ordinary domestic helper given her importance to their children. And this was illustrated by the fact that when the Plaintiff did not get along with the Filipino domestic helper, it was the Filipino helper who was asked to go, although according to the evidence she had done nothing wrong.

23. Furthermore, I find the Plaintiff's story difficult to square with the circumstances of the termination of her contract of employment and particularly the termination letter which she signed. It is difficult to accept, if the Plaintiff was indeed owed her rest day pay and holiday pay which amounted to over $18,000 by the time of the termination of the contract, that she would have agreed to leave or sign the termination letter as she did, without making the most vigorous (and most justifiable) demand for payment of the money due to her which (ex hypothesi) she had worked so hard from any angle to earn. Although she did subsequently lodge a claim with the Labor Department and Labour Tribunal, I note that in a subsequent letter she wrote in February 2000 to her former employer, she did not make any mention about the rest day pay or statutory holiday pay due to her at all. Instead she only mentioned her difficulty in finding new employment because of what the Defendant had allegedly told a prospective employer, the loan of $10,000 and her financial difficulties, and she asked the Defendant to help her in finding new employment. One would have thought that if she was really owed her rest day pay and statutory holiday pay, and given that she was in financial difficulties, she would have mentioned the outstanding pay as the very first thing in her letter. If the Plaintiff's story was true, what her employer had done to her would have been a most outrageous thing, and in my judgment, the Plaintiff's letter simply did not accord with such an analysis of her case or story.

24. In any event, I find the Plaintiff's claim that for over two years, apart from the two private trips, she worked for the Defendant's family 365 days a year without any break or rest rather difficult to believe. And from the angle of the Defendant, as explained by the Defendant's wife in evidence, it would not have been to the benefit of the children at all to be taken care of by a nanny who worked and worked without rest, and there was indeed no need for her to do so given that there was/were at all material times either a second helper or two part-time helpers around to do the household work and help taking care of the children. And of course, the mother of the children was always around when not at work to take care of the children as well.

25. In the circumstances, I reject the Plaintiff's claim for rest day pay, statutory holiday pay, as well as annual leave pay.

26. I note in passing that the arrangement in question for the Plaintiff to work on statutory holidays (as per the Plaintiff's version) was quite unlawful: See Part VIII of the Employment Ordinance (Cap. 57), and possibly the arrangement as per the Defendant's version which I accept may also have involved some infringement of the law as a compensating holiday (called an "alternative holiday" in the Ordinance) has to be within 60 days before or after the statutory holiday. But the unlawfulness would only have affected the Plaintiff's claim for remuneration for the work she did on her statutory holidays and even then it would not necessarily have constituted an absolute bar to her claim: See, for instance, Ciano v Cheuk Kam Wan HCLA000078/1995 Leong J. (31/10/95); Hipol v. Hussain HCLA000137/1996 V. Bokhary J. (4/4/97). But as I find against the Plaintiff on the facts, this issue does not really arise in the present case, and I need deal with it no further.

27. As for the termination of the Plaintiff's contract of employment, likewise I also accept the account of events given by the Defendant and his wife. I find that the Plaintiff did make grossly excessive phone calls during work which must have seriously affected the proper performance of her duty to look after the two small children, despite repeated warnings by the Defendant's wife. The telephone bills clearly evidenced the numerous long-distance telephone calls made, not to mention the local phone calls which of course would not feature in the telephone bills. The Plaintiff's denial of some of the telephone calls made to Sri Lanka when no one else in the household had any reason to make any such phone calls only damaged her credibility as a witness. I find that the fact that these numerous phone calls were made by itself clearly reflected a serious lack of total attention or devotion paid on the part of the Plaintiff to her primary duty in the household, namely, to look after the two small children. The time actually spent in the telephone calls was also at the expense of the children. I accept the Defendant's wife's evidence that when she called home from office, she could not get through on numerous occasions. This must have been most frustrating to her as a mother at work. I accept that she gave two oral warnings to the Plaintiff both before and after her annual summer trip to UK, but the Plaintiff showed no improvement. Moreover, the incident of the Plaintiff's cousin being arrested by the police and the resulting absorption of the Plaintiff's attention on the matter also adversely affected the proper performance of the Plaintiff's duty towards the two children. I have no hesitation in accepting the Defendant's and his wife's evidence relating to the accident that happened to their younger son on 6th September. Regardless of whether the Plaintiff was on the phone or not in the other room at the time this happened, this again in my judgment was evidence of the failure on the part of the Plaintiff to properly look after the two very small children. The Plaintiff's denial of the happening of the accident or any knowledge thereof, which I do not accept, simply highlighted her neglect of duty towards the end of her stay with the Defendant's family.

28. For all these reasons which I considered not only individually but collectively as well, I have come to the conclusion that the Defendant was justified in summarily dismissing the Plaintiff which he did on 6th September: See generally Halsbury's Laws of England (4th ed. 2000 reissue) Vol. 16 paras. 447 to 450 for the relevant legal principles. The Plaintiff has, in my judgment, grossly neglected her duty in the household in the last two or three months of her stay with the Defendant's family. In so concluding, I have not taken into account the alleged doing or seeking by advertisement of part-time job, or the alleged helping for reward or otherwise of people in Sri Lanka to work in Hong Kong, on the part of the Plaintiff, as alleged by the Defendant, which formed part of his personal reason for dismissing summarily the Plaintiff. In reaching my conclusion, I have not taken these allegations which were only supported by suspicions and mere hearsay evidence into account. But based on what I set out in the preceding paragraphs, I am of the view that there were sufficient materials to justify the summary dismissal of the Plaintiff. In my judgment, the Plaintiff had grossly neglected her duties which so undermined the trust and confidence which was inherent in the contract of employment in question that the Defendant should no longer be required to retain the Plaintiff in his employment.

29. Further, I accept the evidence of the Defendant and his wife that whilst the summary dismissal was done on the 6th, the documentation, i.e. the termination letter, was only written on the 8th. The letter was written (or more correctly dictated) by the Defendant in the way he did solely to make life easier for the Plaintiff. By sending the Plaintiff home on the following day, the Defendant was in fact waiving the outstanding loan due by the Plaintiff to him. In my judgment, what was written on the 8th did not alter the true nature of the termination of the Plaintiff's employment, i.e. that she was dismissed for cause, except that the letter confirmed by the Plaintiff's signature thereon that the Plaintiff had no further claim against the Defendant. I find that the Plaintiff had read and fully understood the contents of the termination letter before she wrote her signature on it. I do not accept her story that she signed it without reading it at all. As I said above, I do not accept her story that she asked the Defendant's wife for payment of her rest day pay and holiday pay at the office of the Defendant, and I do not accept her evidence that the Defendant's wife told her that they had no money to pay her. It was quite plain to me at the trial that the Defendant and his wife are and were at all material times persons of means. And in this regard, I accept the evidence of the Defendant's wife that the reference letter was a product of begging and crying on the part of the Plaintiff. The reference in the letter that the Plaintiff was asked to go because of financial difficulties on the part of the Defendant was quite obviously an attempt to assist the Plaintiff in staying in Hong Kong and looking for another job, and quite plainly did not represent the real reason of the Plaintiff's departure.

30. As I said, I have taken into account the fact that generally speaking foreign domestic helpers in Hong Kong may not have equal bargaining power vis-à-vis their employers and are vulnerable to exploitation, unfair treatment and abuses by those who are unscrupulous, and I have guarded myself against any such possibility in the present case. But on the evidence presented before me in this case, I am satisfied on a balance of probabilities that this was not such a case. The termination letter was signed by the Plaintiff with full knowledge and agreement of its contents, and she had, as the letter quite plainly said (despite its grammatical mistakes and typographical errors made by the staff member who typed the letter out after it was dictated to her over the telephone by the Defendant), no "further claim", which must have meant, in its context, no further claim against her employer.

31. In those circumstances, the Plaintiff's claim for one month's wages in lieu of notice must fail. Likewise, her claim for long service payment also fails as she was summarily dismissed by the Defendant for good cause: Employment Ordinance, ss.31RB & 31S(1). I find that her dismissal was not due to any redundancy at all, and therefore her claim for severance payment must also fail: Employment Ordinance, s.31B(1)(a).

32. As for the miscellaneous items of claim in respect of the balance of wages ($360), arrears of wages ($1,120), travelling allowance ($100), consulate fees ($160) and visa fees ($270), I find that they have been more than sufficiently covered, set off and extinguished by the outstanding loan owed by the Plaintiff to the Defendant at the time of her departure as well as the $300 cash the Defendant's wife gave the Plaintiff at the office on 8th September. In fact, I have doubts over some of the items of claim, but I need make no finding in relation to them, as they would be covered and set off as aforesaid in any event.

Conclusion

33. In conclusion, the Plaintiff's claim wholly fails, and I dismiss her action accordingly.

34. Originally the Defendant made a counterclaim against the Plaintiff for overpayments, repayment of the outstanding loan and outstanding telephone charges. During final submission, the Defendant through his solicitor waived his claim because he believed that the Plaintiff would not have money to satisfy any judgment in his favour in any event. For the same reason, he indicated to the court that he would not seek costs against the Plaintiff in case of success in defending her claim or in respect of his counterclaim. This was sensible and gentlemanly behaviour. The Defendant said in evidence that in fact it was more expensive for him to fight this case than to pay the Plaintiff as per her claim (and I may add, a fortiori, what he may likely have been required to pay under a settlement), but he chose to do so as a matter of principle, and the trial lasted two full days in which he and his wife were obliged to spend much time in the witness box for examination purpose. I appreciate his position, and in fact it formed part of the general circumstances of this case which I took into account in making my findings in this case.

35. In the circumstances, I grant leave to the Defendant to withdraw his counterclaim. And I make an order nisi that each party do bear its own costs of the action and the counterclaim. Unless either party applies within 14 days of the handing down of this judgment to vary my decision on costs, it will become an absolute order.