GUANGDONG OVERSEAS CONSTRUCTION CORPORATION v. YI FENG PETROCHEMICAL LTD

HCCT62/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO. 62 OF 2010

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J U D G M E N T

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BACKGROUND

1.  The plaintiff carries on business as a building contractor.

2.  The defendant was incorporated in Hong Kong for the purpose of establishing a petrochemical lubricant recycling plant (“the Plant”) at the Tseung Kwan O Industrial Estate (“the Site”).

3.  With a view to constructing the Plant at the Site, the defendant entered into the following agreements with the plaintiff :

(a)     a written agreement in English dated 18 June 2007 (“the Design Conversion Agreement”) pursuant to which the defendant agreed to engage the plaintiff to provide professional consultancy services to convert original design and drawings of building works for the development of the Plant which were to be prepared by “Messrs Dalian Branch of China Petroleum Engineering Co. Ltd” in accordance with relevant specifications and standards of mainland China (“PRC”) into design and drawings in compliance with the standards and specifications under the Hong Kong Buildings Ordinance currently effective in Hong Kong for statutory approval and consent for commencement of construction work from the Hong Kong Buildings Department (and any other relevant government authorities) and such other related consultancy services necessary for the purpose of acquiring the said approval and consent;

(b)     a written agreement in Chinese dated 26 February 2008 (“the Construction Agreement”) pursuant to which the plaintiff was engaged by the defendant to become the contractor to carry out the construction work for the Plant at the Site; and

(c)      a supplemental written agreement also in Chinese dated 21 May 2008 (“the Supplemental Agreement”) pursuant to which the plaintiff and the defendant agreed to vary clause 5.3 of the Construction Agreement which related to the calculation of the total construction costs.  Specifically, the parties agreed to vary the method of calculation of the interim payments.

4.  It is not disputed that the plaintiff commenced work on the Site pursuant to the Construction Agreement sometime in 2008 and payments had been made by the defendant to the plaintiff for such work.

5.  By a letter from the defendant to the plaintiff dated 26 August 2009, the defendant gave notice to the plaintiff to terminate the engagement of the plaintiff under the Design Conversion Agreement and the Construction Agreement as from 1 September 2009.  In the letter, the defendant stated that the reason for the termination was that the defendant’s shareholders had experienced problems in raising funds as a result of the financial tsunami in 2008. The defendant also stated in the letter that after termination of the Design Conversion Agreement and the Construction Agreement, final accounting and hand over arrangements should be made.

6.  By a letter dated 23 September 2009, the plaintiff wrote to formally accept the repudiation by the defendant of the Construction Agreement.  In this letter the plaintiff referred to an earlier letter dated 9 September 2009 from the plaintiff to the defendant providing 14 days’ cool off period for the defendant to reconsider its decision to terminate.

7.  By a letter dated 23 December 2009 to the defendant, the plaintiff referred to a Statement of Final Account for Work Done (“the Statement of Final Account”) which had been provided on 4 December 2009 to the defendant’s Mr Li Bingxi for the defendant’s agreement and payment.  A copy of that Statement of Final Account was also attached to the letter and the plaintiff demanded payment of the sum of HK$2,702,753.95 as set out in the Statement.  The plaintiff referred to continued efforts to remind the defendant to settle the payment due and warned that if payment was not forthcoming within 14 days, legal proceedings would have to be instituted against the defendant without further notice.

8.  In response to the plaintiff’s letter, on 29 December 2009, the defendant sent what it described as a “Payment Notice” to the plaintiff.  In that Notice, the defendant notified the plaintiff that it would pay the sum of RMB500,000 in the near future and that the balance would be paid by instalments.  The said sum of RMB500,000.00 (equivalent to HK$566,147.00) was duly paid, leaving an outstanding balance of HK$2,136,606.95.

9.  No further payment having been made, by a letter dated 14 April 2010, the plaintiff demanded payment of the outstanding balance.  In the letter, the plaintiff also pointed out that the defendant had not even proposed an instalment payment schedule.  The plaintiff further threatened to issue legal proceedings against the defendant unless payment was made within 14 days from the date of the letter.

10.  No payment was made by the defendant but on 9 June 2010, a meeting (“the June Meeting”) was held between representatives of the plaintiff and the defendant with a view to resolving the issues arising from the termination of the Design Conversion Agreement and the Construction Agreement including, in particular, final account for the works done.  In the minutes of the meeting, which were signed and confirmed by all the representatives of the defendant and the plaintiff, it was confirmed by both parties that the defendant owed the plaintiff the unpaid sum of HK$2,136,606.95 for the works already done on the Site.

11.  Despite such confirmation at the June Meeting, the said sum still remains outstanding and the plaintiff issued the present proceedings against the defendant on 25 September 2010.  The plaintiff claims the total sum of HK$8,709,052.12 which includes, inter alia, the aforesaid sum of HK$2,136,606.95, a sum of HK$5,848,238.24 for loss of profits and the sum of HK$369,764.18 for direct loss, damage and/or wasted expenditure.

THE PRESENT APPLICATION

12.  In the application before me, the plaintiff seeks summary judgment under Order 14 for only the said sum of HK$2,136,606.95 or alternatively an order for interim payment of the same amount against the defendant.

THE APPLICABLE LEGAL PRINCIPLES

13.  There is no difference between the plaintiff and defendant on the proper approach to the application before me :

(a) In respect of the application for summary judgement, once the plaintiff has satisfied the preliminary requirements for the proceedings, it is entitled to summary judgement unless the defendant can show that it has a real or bona fide defence.  The burden is on the defendant to show such a defence and the court will test the credibility of an affirmation asserting a triable issue against the conduct of the parties and the contemporary documents.  The court must decide whether the defendants allegations are believable, rather than whether they are to be believed; but in deciding whether they are believable, regard must be had to the other evidence placed before the court.

Murjani v. Bank of India [1990] 1 HKLR 586, 588I-589A; Re Safe Rich Industries Ltd [1994] HKLY 183; Hong Kong Civil Procedure 2011, Vol.1, para.14/4/9

(b) In respect of the application for interim payment, the court must be satisfied that the plaintiff “would”, not “would be likely to”, obtain judgment in a substantial amount against the defendant.  The standard of proof is a high one, on the balance of probabilities.  The court must be satisfied that the defendant has no arguable defence, such as one which would warrant the grant of unconditional leave to defend on an application for summary judgement.

          Shenzhen Envirotex Electronics Company Ltd v. Cellplus (HK) Ltd [2005] 4 HKLRD 217, para.19; Hong Kong Civil Procedure 2011, Vol.1, paras.29/11/1 & 29/11/3

THE DEFENDANT’S OPPOSITION

14.  The defendant contests the plaintiff’s application on the following grounds :

(a) The defendant contends that the plaintiff relies on the minutes of the June Meeting (“the Meeting Minutes”) as being an account stated and argues that it has a defence to the claim for the following reasons:

(i) there is no new consideration to support the alleged agreement to pay; and

(ii) there is total failure of consideration.

(b)     There are triable issues on the alleged outstanding unpaid sum of HK$2,136,606.95, viz.

(i)  dispute on the Meeting Minutes;

(ii) dispute as to the re-measurement contract sum.

Account stated

15.  Mr James Lee, who appears on behalf of the defendant, argued, relying on Chitty on Contracts, (30^th Ed.), Vol.1, para.29-191, that the term “account stated” is used to cover three different situations :

(a) As evidence of an admission of the debt out of court — such an admission is only evidence of a debt and can be rebutted.

(b) As evidence of an agreement to pay on the basis of some new valuable consideration received by the party who admitted that he owed the agreed sum.

(c) “A real account stated” which is one in which the account includes items on both sides and the parties have agreed that there shall be a set-off and only the balance shall be payable.

16.  It is clear that there is no question of the plaintiff relying on “a real account stated” in the present case.  Further, although Mr Lee made submissions arguing that there was no new consideration supporting an agreement to pay (of the type referred to in sub-paragraph (b) of the previous paragraph), such submissions are irrelevant as Mr Gary Soo, who appears on behalf of the plaintiff, has confirmed that the plaintiff is relying on the account stated as set out in the Meeting Minutes only as evidence of the debt.

17.  In response, Mr Lee has raised various arguments.

Subject to contract and approval

18.  First, Mr Lee argued that the evidence indicated that the settlement agreement as evidenced by the Meeting Minutes was subject to formal contract and final approval of the defendant’s senior management.  He argued the settlement agreement is therefore incomplete.  In support of his argument, Mr Lee relied on the wording of the agenda for the meeting (“the Meeting Agenda”) the preamble of which provided that the parties should arrive at an agreement or consensus relating to the termination of the Design Conversion Agreement and the Construction Agreement which would be submitted to the “head management” (高層) for response within 14 days.  He further relied on clause 2.6 of the Meeting Agenda which provided that the parties should “草擬有法律約束的付款方案協議包括合同轉讓條件”.  Mr Lee contends that the literal translation of this clause is “Draft the legally binding payment proposal agreement including the contract transfer conditions”.

19.  In further support of this argument, Mr Lee relied upon the Affirmation of Chan Tat Sang (“the Chan Affirmation”), the Manager of the defendant.  Mr Chan was present at the June Meeting.  He claimed that the meeting was divided into two parts, with a morning session lasting from 10 a.m. to around noon (after which the representatives of the parties went to lunch) and an afternoon session which commenced after lunch.  He further stated that when he and other representatives of the defendant attended the meeting room in the morning, they were asked to sign on the Meeting Agenda to record their attendance.  This was before the actual commencement of the discussions.  He claimed that when they returned from lunch, the plaintiff had typed out the Meeting Minutes and that they had been asked to sign their names on the Meeting Minutes as “出席會議人員” (“persons attending the meeting”).  He contended that the signatures did not signify the defendant’s acceptance of the content of the minutes or give rise to any formal agreement between the parties.  He claimed that prior to the meeting it had been made known to the plaintiff that everything said at the meeting shall be subject to formal contract and the final approval by the defendant’s General Manager in Beijing, Mr Lin Hangsheng, and that this had been reflected in the preamble and clause 2.6 of the Meeting Agenda.

20.  Mr Chan further disputed the plaintiff’s contention that the Meeting Minutes was an agreement between the parties.  He argued that if the Meeting Minutes was indeed an agreement by the defendant, there was no need for all four representatives of the defendant attending the meeting to sign on the Meeting Minutes.  He claimed that the four representatives signed the Meeting Minutes only to record their attendance at the meeting.

21.  I do not find Mr Chan’s allegations and contentions to be credible and reject them (and Mr Lee’s arguments based thereon) for the following reasons :

(a) What is set out in the preamble to the Meeting Agenda and clause 2.6 thereof may have represented the intentions of the defendant prior to the meeting.  This does not however mean that the defendant (through its representatives) could not have decided and did not decide, as result of the discussions at the meeting, to confirm or to agree to any matters without further consultation with its “head management”.

(b) Indeed, the very terms of the Meeting Minutes show very clearly that whereas by clause 2 of the Meeting Minutes, the defendant unconditionally confirmed (“確認及沒有爭議的”) that the sum of HK$2,136,606.95 was in fact due and owing to the plaintiff and the defendant did not require any further time for consideration or confirmation of this, there were other matters which it was expressly provided required further confirmation.  Thus, in clause 3.1, it was expressly stated that the defendant would need to check the plaintiff’s estimate of HK$43,823,526 and that this would need to be confirmed by the parties within 15 days.  Further, in clause 3.3, it was provided that the parties would need to confirm and check another figure of HK$879,736 and that this would be done within three days.  Additionally, in clause 4, it was recorded that the defendant had requested the plaintiff to make certain concessions relating to “監工費” and that the plaintiff would revert within three days as to the amount of the concession which it would be prepared to make.  In contrast, in clauses 3.1 and 3.2, there were other sums which the parties expressly stated to be confirmed and not disputed (“確認及沒有爭議的”)in the same way that the sum of HK$2,136,606.95 was stated to be confirmed and not disputed in clause 2.

(c) Mr Chan’s claim that the representatives of the defendant signed the Meeting Minutes simply to acknowledge that they were “persons attending the meeting” defies common sense and is inconsistent with the wording of the Meeting Minutes.  In this regard, it is important to note that whereas in the Meeting Agenda, the representatives of both parties appended their signatures under the column “簽署”, in the Meeting Minutes, these representatives appended their signatures after the words “確認簽名”.  The use of the words “確認” (“confirmation”) is important here because the Meeting Minutes expressly state, below the signatures, but before the terms are set out, that “雙方同意及確認以下事項” (emphasis mine) and, as I have already adverted to above, the words “確認” are again used in clauses 2, 3.1 and 3.2 to signify the matters which the parties confirmed not to be in dispute.

(d) Whilst Mr Chan claims that a copy of the Meeting Minutes was not given to the defendant until some days after the meeting, he does not say that the representatives of the defendant attending the meeting were not given a chance to read, or that they had not read and understood, the Meeting Minutes before they signed the same.  Given the very clear and unequivocal wording of the Meeting Minutes, it simply defies common and commercial sense and logic that the representatives of the defendant would have signed to confirm the terms thereof if indeed they still required further confirmation from “head management”.

(e) As regards Mr Chan’s argument that there was no need for all four representatives of the defendant attending the meeting to sign on the Meeting Minutes, whilst there was no need as such for all four representatives of the defendant to have signed the Meeting Minutes, it actually made good sense for every one attending the meeting to sign to confirm that was set out therein was what had been agreed by everyone attending the meeting.  I also note that Mr Chan, who was one of the 4 representatives of defendant to sign on the Meeting Minutes, was in fact the person who signed the Design Conversion Agreement, the Construction Agreement and the Supplemental Agreement on behalf of the defendant.

(f) Significantly, the defendant’s contention that the settlement agreement as evidenced by the Meeting Minutes was subject to formal contract and final approval of the defendant’s senior management was only raised for the first time in the Chan Affirmation which was filed in May 2011. It was not pleaded in the Defence filed in December 2010.  If indeed the settlement agreement as evidenced by the Meeting Minutes was subject to formal contract and final approval of the defendant’s senior management as now contended by the defendants, one would have expected this point to have been pleaded in the Defence.  Not only was this point not pleaded, in para. 57 of the Defence, it was in fact admitted that the defendant had agreed that the sum of HK$2,136,606.95 was the outstanding sum but the defendant alleged that this was in consideration of the plaintiff’s agreeing to certify partial completion to the Buildings Department.  The defendant has provided no explanation as to why the points now sought to be made by it, that what was agreed at the June Meeting was subject to contract and approval from the head management, was not pleaded but only raised for the first time in the Chan Affirmation.

Total failure of consideration

22.  Mr Lee also argued that the defendant’s agreement to pay the sum of HK$2,136,606.95 as recorded in the Meeting Minutes was against the plaintiff’s agreement to certify partial completion of the works to the Buildings Department.  He argues that because this was not done by the plaintiff, this amounted to a total failure of consideration so that the defendant’s agreement to pay “must be rebutted”.

23.  As noted above, this point was first raised in the Defence where it was pleaded that in consideration of the plaintiff’s agreement to certify partial completion to the Buildings Department both by the sub consultant and the plaintiff, the defendant agreed that the sum of HK$2,136,606.95 was the outstanding amount.

24.  In the Reply, the plaintiff disputed the defendant’s contention.  The plaintiff pleaded that the works on the Site, including the hoarding/fence wall works and the spread footing works, had not yet reached the status of reporting completion to the Buildings Department. Thus, at the time, further works were still required to be carried out on the Site for proceeding to report or certify to the Buildings Department about the completion of the works in accordance with the consents to commence works given by the Buildings Department.  The plaintiff further pleaded that with the wrongful termination and/or repudiation of the Construction Agreement and the Supplemental Agreement, which had been accepted by the plaintiff, the plaintiff was under no further obligation to perform the agreements and had been discharged from further performance of the same.

25.  In the Affirmation of Lin Shunzhang in support of the present application (“the Lin Affirmation”), Mr Lin reiterated that the plaintiff did not and could not have agreed to certify the partial completion of the works to the Buildings Department because, as pleaded in the Reply, there was quite a lot of work which was still required to be carried out on the Site before this could be done.  In particular, he pointed out that one of the water tanks and several footings had been left outstanding and not completed as per the instructions of the defendant and that the cost of these outstanding works alone would have been over HK$1,000,000.

26.  In the Chan Affirmation made in response to the Lin Affirmation, Mr Chan did not dispute Mr Lin’s explanation there was quite a lot of work which was still required to be carried out on the Site before there could be certification of partial completion of the works to the Buildings Department.  Nor did he dispute that such work would have involved very significant additional costs.  However, he claimed that the plaintiff had also agreed to complete such additional work at the June Meeting so that it could certify partial completion of the works on the Site to the Buildings Department.

27.  In Mr Lin’s affirmation made in reply to the Chan Affirmation (“the Lin Reply Affirmation”), Mr Lin disputed that the plaintiff had also agreed at the June Meeting to complete the additional work.

28.  I find the defendant’s allegations and contentions to be incredible and reject them (and Mr Lee’s arguments based thereon) for the following reasons :

(a) The defendant’s pleaded case is only that the defendant had agreed that the sum of HK$2,136,606.95 was the outstanding amount in consideration of the plaintiff’s agreement to certify partial completion to the Buildings Department.  There is no allegation in the Defence that the plaintiff had also agreed to complete the outstanding works required for such partial completion to be certified.  Indeed, even in Mr Lee’s written Submissions, he only argued that there had been total failure of consideration because the plaintiff had failed to certify partial completion.  There is no mention whatsoever of the alleged agreement to also complete the outstanding works.

(b) Faced with the undisputed fact that substantial outstanding work had to be completed before there could be certification of partial completion to the Buildings Department, and no doubt realising that this would pose a problem with the defendant’s case that the plaintiff had agreed to certify partial completion to the Buildings Department, Mr Chan claimed, for the first time in his affirmation, that the plaintiff had also agreed to complete such outstanding work.  I am of the view that this is clearly an afterthought.

(c) Furthermore, it simply does not make business or commercial sense for the plaintiff to have agreed at the June Meeting to complete the outstanding work (which the defendant does not dispute would have cost well in excess of HK$1,000,000) in order to secure agreement by the defendant to pay the sum of HK$2,136,606.95 for the work which had already been completed.

(d) If the plaintiff would not have agreed to complete the outstanding works, it could not have agreed to certify partial completion to the Buildings Department as the outstanding works had to completed before there could be certification.

(e) The Meeting Minutes set out very clearly, in great detail, what the parties had agreed. There is absolutely no reference to any agreement by the plaintiff to complete the outstanding works required for certification of partial completion or indeed to certify partial completion.  If, as claimed by Mr Chan in his affirmation, this was such an important point for the defendant, one would have expected the defendant’s representatives to have insisted on the plaintiff’s agreement in this regard to be set out in the Meeting Minutes.

(f) I do not accept Mr Chan’s contention that the alleged agreement by the plaintiff to complete the outstanding works required for certification of partial completion and to certify partial completion is already reflected in clause 1 of the Meeting Minutes.  That clause only provides that the plaintiff would transfer and assist in the transfer of the Design Conversion Agreement upon due payment of fees due under that agreement and with the agreement of David Au Siu Kin.  It does not make any reference to completion by the plaintiff of any outstanding works under the Construction Agreement or to certification of partial completion to the Building Department.

Dispute as to the re-measurement contract sum

29.  Mr Lee argued that there is a triable dispute as to whether the amount of HK$2,136,606.95 is due and owing to the plaintiff.  He makes the following points in support of his argument :

(a) Relying on clauses 5.1(c) and 5.2(a) of the Construction Agreement, he argued that the final contract sum is calculated by final re-measurement of actual work done on site after completion.  He argued that as the interim payments made are provisional and not binding, if excessive payment has been made, it may be that the plaintiff needs to reimburse the defendant.  He therefore argued that the plaintiff must prove the amount of actual work done before it can establish its case on the outstanding balance of HK$2,136,606.95.

(b) He argued, relying on certain alleged inconsistencies between figures set out in the Statement of Final Account, that there was a triable issue.

(c) He contended that there was a dispute as to the inferiority of the work done and outstanding work.

30.  Dealing first with the point in sub-paragraph (a) above, I do not agree with Mr Lee that the plaintiff must prove the amount of actual work done before it can establish its case on the outstanding balance of HK$2,136,606.95.  As submitted by Mr Soo, the figure of HK$2,136,606.95 was agreed to by the defendant at the June Meeting, some 6 months after the Statement of Final Account had been submitted to the defendant.  Such admission by the defendant places the burden of proving that the figure is erroneous on the defendant — Chitty on Contracts, op.cit., para.29-191(i), footnote 1083.  The defendant has not put forward any evidence to prove the figure is erroneous save the points made in sub-paragraphs (b) and (c) above, which I shall now consider.

31.  Mr Lee argued that there were inconsistencies between the figure of $566,100 shown on the first page of the Statement of Final Account and the figure of $501,229 shown on the second page and also between the figure of $1,505,912 shown on the first page and the figure of $1,308,740 shown on the third page.  I accept Mr Soo’s contention that Mr Lee’s argument is misconceived because the figures of $566,100 and $1,505,912 shown on the first page related to work already done whereas the figures of $501,229 and $1,308,740 shown on the second and third pages related to work which had not yet been done.  There is accordingly no inconsistency.

32.  As regards the alleged inferiority of the work done and the outstanding work, in the Chan Affirmation, it is alleged that this consisted of :

(a) rusting of reinforcement bars;

(b) broken and deformed cast-in bars on top of the footing;

(c) improper construction joint; and

(d) part of the fence wall were left incomplete.

33.  However, the only evidence which the defendant adduced to prove such alleged inferiority of the work done and the outstanding work are two quotations obtained from another contractor which Mr Chan alleged were for the cost of rectifying the alleged defects.  These two quotations, for the sums of HK$250,500 and HK$557,000 respectively, were exhibited as “CTS-9(a)” and “CTS-9(b)” to the Chan Affirmation.

34.  As pointed out by Mr Lin in the Lin Reply Affirmation and as is clear from the entries shown in the quotation itself, the quotation exhibited as “CTS-9(b)” relates to work which needed to be done to re-set up the Site for future works to be carried out.  Mr Lee does not dispute this in his submissions.  As it was the defendant which had terminated the Construction Agreement and caused the work on the Site to be stopped, the plaintiff cannot be held responsible for such costs.

35.  As regards the quotation exhibited as “CTS-9(b)”, item 1 relates to insurance.  As pointed out by Mr Lin in the Lin Reply Affirmation and as is clear from the entries shown in the quotation itself, items 2 and 3 clearly relate to work left outstanding and item 4 relates to future carrying out of work on the Site.  This is not disputed by Mr Lee in his submissions.  Indeed, it appears that items 2 and 3 relate the some of the outstanding works which needed to be done before partial completion could be reported to the Buildings Department as discussed above.  I have already rejected the defendant’s arguments that the plaintiff had agreed to undertake this work at the June Meeting.  These four items of work accounted for HK$200,500 of the sum of $250,500 quoted but the plaintiff cannot be responsible for such costs.

36.  Item 5 in the quotation exhibited as “CTS-9(b)” is for the sum of HK$20,000 for cleaning the rust off certain starter bars and work to protect them from further protection.  The last item, item 6, relates to redoing or remaking certain bars which had broken or had been bent and the sum of HK$30,000 was quoted for this.  Whilst it is by no means clear that the rusting of the starter bars or the condition of the broken or bent bars was due to the default of the plaintiff, even accepting for the sake of argument that these were due to the plaintiff’s fault, the cost of rectifying these faults total only $50,000.  As pointed out by Mr Lin (which does not appear to be disputed by Mr Lee), this figure of $50,000 is well covered by the retention money of HK$354,442.75 still being kept by the defendant.

37.  For the above reasons, I do not accept Mr Lee’s arguments that there is a triable dispute as to whether the amount of HK$2,136,606.95 is due and owing to the plaintiff.

Set off

38.  Although no set off was pleaded in the Defence, in the Chan Affirmation, it was suggested that the defendant would be seeking to amend its Defence to plead a set off against the sum claimed by the plaintiff.  However, even by the time of the hearing before me, no such amendment had been formulated and, although a section in Mr Lee’s written Submissions addressed the issue of set off and Mr Lee also made some oral submissions on the issue, he eventually confirmed that the defence of set off is not relevant to the plaintiff’s claim for HK$2,136,606.95 but will be raised as a defence to the plaintiff’s other heads of claim which are not the subject matter of the plaintiff’s present application.  I do not therefore propose to deal with Mr Lee’s arguments relating to set off.

CONCLUSION

39.  For the reasons set out above, I give judgment in favour of the plaintiff against the defendant for the sum of HK$2,136,606.95 with interest thereon at 8% per annum from the date of the issue of the Writ of Summons to the date of judgment herein and thereafter at judgment rate until payment.

40.  As I have given summary judgment in favour of the plaintiff, I do not need to and do not propose to deal with the plaintiff’s alternative application for an order for interim payment.

41.  I grant a costs order nisi that the defendant do pay to the plaintiff the costs of the application before me, to be taxed if not agreed.