TSANG WING KWAI v. TSANG WING FAI

CACV 239/2018

[2019] HKCA 163

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 239 OF 2018

(ON APPEAL FROM HCMP 3186/2016)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  The Plaintiff and the Defendant are brothers. Their mother Chan Chung Han passed away on 20 August 2012. The Defendant had been appointed as the sole executor and trustee under the last will of the mother of 16 June 1997. He obtained Grant of Probate (Grant No HCAG 011355/2013) on 5 December 2013 in respect of the Estate of the mother [“the Estate”].

2.  The residuary legatees of the Estate under the last will are the Plaintiff (1 share), the Defendant (2 shares), their sister (1 share) and the two sons of the Defendant (1 share held by the 2 of them together as tenants-in-common).

3.  By an originating summons of 16 November 2016, the Plaintiff sought an inventory and account of the Estate verified by affidavit, inspection of supporting documents and removal of the Defendant as executor and appointment of other suitable persons to administer the Estate.

4.  The originating summons was heard by Wilson Chan J [“the Judge”].  On 21 May 2018, the Judge found that the Defendant was in a position of conflict and acted in a way against the interests of the beneficiaries and failed to recognise so.  At [43] to [45] of the judgment, the Judge said:

“ 43.   The defendant has not only put himself in a position of conflict, but worse still has failed to recognise such conflict.  By maintaining some spurious reasons to justify his stay in Flat 907 for free (to the exclusion/detriment of the other beneficiaries), he is clearly acting in a way that is against rather than in favour of “the welfare of the beneficiaries”: Re Steel (supra), paragraph 107.  This alone would lead to the conclusion that the defendant should be removed as the executor of the Estate.

44.   Further, it is also important to emphasise that the duty of an administrator to render a full and proper account when called upon to do so is a fundamental and important duty. The failure to do so may be a good reason to justify the removal of an administrator: Re Estate of Lee Da Kor (supra), paragraph 37; Cheng Tang Kam Yung (supra), paragraph 63.

45.   I agree that for the cumulative reasons set out above, the Estate should best be administered by some independent professional.  This will relieve the defendant of his responsibility and enable the administration to move forward, especially, in light of the defendant’s professed desire to return to the United States.  To this end, I agree with the plaintiff’s proposal that a direction may be made by this Court that the parties do within 14 days provide nominations of professional accountant as the executor (together with their curriculum vitae and normal level of charges) for the Court’s consideration.”

5.  He granted the relief sought to the Plaintiff, including the removal of the Defendant as executor.

6.  The Defendant appealed against the removal order, the nomination order and the costs order by a notice of appeal of 19 June 2018.  Though there had been an application for stay of execution by the Defendant, the Judge refused to grant an interim interim stay and the Court of Appeal also declined to do so, see the judgment of the Court of Appeal (Lam VP and Poon JA) of 26 October 2018.

7.  After considering the nominations of the parties, the Judge appointed a professional accountant as executrix of the Estate on 13 August 2018. That order was subsequently varied by an order of 20 November 2018 appointing her as administratrix as opposed to executrix.  With the implementation of the removal order and the nomination order, and the appointment of a new administratrix, we raised the question at the hearing of the appeal that it would not be enough to set aside the removal and nomination orders.  If the Defendant were successful, there would have to be an order for the removal of the new administratrix at the same time when the order removing the Defendant was set aside.  Otherwise there would be two conflicting orders in place in respect of the person having the authority to administer the Estate.

8.  At the moment, there is no appeal against the orders of 13 August 2018 and 20 November 2018 and the new administratrix is not a party to this appeal.

9.  Mr Man SC submitted that it is not necessary to seek an order to remove the new administratrix as her appointment is premised on the removal of the Defendant.  With respect, we cannot agree with such submissions.  Whilst it may be correct for counsel to contend that the administratrix should adopt a neutral stance in respect of the appeal against the removal of the Defendant, it is still necessary for an order to remove her or to revoke her appointment to be made at the same time as the setting aside of the removal of the Defendant.  As mentioned at the hearing, there could be issues relating to the remuneration of the administratrix and the lodging of report or account by her and handing over of documents and these have to be addressed when she is removed.  Hence, she should at least be notified and given an opportunity to be heard in respect of her removal.

10.  Further, as submitted by Mr Ho SC, the making of an order for removal of the administratrix could involve consideration of issues beyond those arising in this appeal in relation to the removal of the Defendant. The administration of the Estate in the meantime by the administratrix may give rise to relevant considerations (e.g. near completion of the administration of the Estate) that it would not be in the interest of the Estate as a whole to remove her now.  Because the administration of the Estate is a continuing process, even if we were convinced that there was something wrong in the judgment of 21 May 2018, it does not necessarily follow that the new administratrix ought to be removed in light of the current position.

11.  Mr Man submitted that we can split the appeal into two stages.  The first stage would be confined to the debate on the removal of the Defendant since both parties were ready to argue the same.  If the Court of Appeal rejected the submissions of the Defendant, the appeal would be dismissed.  It is only when this Court accepted those submissions that the administratrix has to be involved in terms of consequential relief and the question as to her removal could be addressed at that stage.  Counsel also proposed that the second stage could be remitted to the Court of First Instance.

12.  Mr Ho did not agree to the proposed course.  He submitted that with the administration of the Estate by the new administratrix, the real issue now is whether the administratrix should be removed instead of asking if the removal of the Defendant was correct.

13.  That might be true if one were considering the matter purely from the angle of administration of the Estate.  However, in terms of justice between the parties, the question of costs also falls for determination in this appeal.  The Defendant was ordered to pay the costs below.  Such costs order must partly be attributable to his removal.  Bearing in mind both parties were represented by leading counsel at the court below, the costs could be quite substantial.  The Defendant seeks to set aside that costs order in this appeal.

14.  Further, in considering if the new administratrix should be removed to restore the office of the Defendant, it must be highly material to address if he was rightly removed in the first place.  

15.  After hearing counsel, we decided to adopt the course proposed by Mr Man in the circumstances of the present appeal though we had reservations if the second stage could be remitted to the Court of First Instance which has no authority to set aside the original removal order.  As the question as to the need for removal of the administratrix was only brought up by the Court at the hearing and the parties were ready to argue on the grounds of appeal, unless prejudice would be suffered by the Plaintiff, it would not be consistent with the underlying objectives in Order 1A if we did not proceed to hear at least this part of the appeal.  The increase in costs for the disposal of the appeal arising from adopting this course can be addressed by an appropriate order as to costs.  As Mr Ho cannot pinpoint any prejudice in this regard, we therefore proceeded to hear substantive arguments on the grounds of appeal.  

16.  Having now considered the merits of the grounds of appeal, we decide to dismiss the appeal.  Thus, the procedural problem highlighted above does not call for further consideration in this judgment.  Be that as it may, what we said above could be relevant for future reference.

17.  Before us, Mr Man and Mr Wong relied on three grounds of appeal on behalf of the Defendant:

(a)   In making the removal order, the Judge overlooked or ignored the principle that the Defendant was chosen as executor by the testatrix and the court should be very cautious and sparing in exercising the power of removal;

(b)   The Judge failed to consider the wishes of the beneficiaries other than the Plaintiff;

(c)   The Judge failed to consider or overlooked some relevant matters.

Admission of fresh evidence

18.  The Defendant also sought leave to adduce fresh evidence in the appeal by a summons of 16 July 2018.  The fresh evidence consists of:

(a)   Two affirmations of his two sons dated 19 June 2018 stating their opposition to the removal of the Defendant as executor;

(b)   The updated inventory and account of the Estate dated 21 June 2018;

(c)   The audited accounts of United Kesvick Limited from 2013 to 2017.

19.  Though such evidence was prepared after the judgment, the contents mostly related to the state of affairs concerning the Estate prior to the hearing before the Judge.  In the circumstances, as far as such parts of the fresh evidence related to matters prior to the hearing are concerned, the test of Ladd v Marshall [1954] 1 WLR 1489 applies in determining if new evidence should be allowed on appeal: see Mok Hing Chung v Wong Kwong Yiu [2018] HKCA 713 at [22].

20.  In the 2^nd Affirmation of the Defendant (filed in support of the summons of 16 July 2018), he did not explain why with reasonable diligence such evidence could not have been prepared before the hearing at the court below.  The affirmations of his two sons, the accounts of United Kesvick Limited and the inventory and account of the Estate up to April 2018 should be evidence within the power of the Defendant to obtain and adduce before the Judge.  Since he chose not to do so at the court below, it would be an abuse of the process if he is allowed to have a second bite on the evidence on appeal.  The first condition of Ladd v Marshall, supra, is not satisfied.

21.  In regard to the updating of the inventory and the account of the Estate by reference to matters arising since the judgment below, we fail to see the relevance of the same in the context of this appeal. Whilst a set of account and inventory (up to 30 November 2016) had been placed before court, the Plaintiff had commented on its inadequacies in his second affirmation of 23 March 2017.  There was ample time between that affirmation and the hearing below (4 April 2018) to address those inadequacies but the Defendant did not do so.  The Judge had some comments on the topic at [37] to [40] of the judgment.  He then ordered accounts to be given and inspection of documents at [41].  There is no appeal against those orders.

22.  When the Judge came to the question of removal, he focused on the conflict at [43] and said this alone would lead to the removal.  At [44], he also referred to the Defendant’s failure to produce a proper account and this was part of his reasons for deciding that the Defendant should be removed: see [45].

23.  The fact that subsequently the Defendant managed to produce such account after the court order only serves to underscore his previous dereliction of duty.  This could not avail him in this appeal. 

24.  For these reasons, we dismissed the summons of 16 July 2018 and refused to allow the fresh evidence to be adduced.

Merits of the appeal

25.  Mr Man submitted that the Judge erred in holding that the removal of the Defendant was required for the due and proper administration of the estate and the interests of the beneficiaries.  Counsel said the Judge acted against the principle that the court should be very cautious and sparing in exercising the power of removal of an executor chosen by the testator.  It is, counsel submitted, insufficient in law to hold that there were areas where the executor had fallen short, or that it might be preferable for a professional executor to be appointed.  With reference to [45] of the judgment, Mr Man submitted that the Judge adopted the wrong approach when he removed the Defendant on the basis that the Estate “should best be administered by some independent professional”.

26.  In our judgment, the criteria for removal of executor is set out in Section 33(3) of the Probate and Administration Ordinance, Cap 10.  The Judge alluded to the same at [27] of the judgment,

“ 27.   Turning to the basis for the removal of a personal representative, it is well-established that the Court’s discretion under section 33(3) of the PAO is wide.  The exercise of the discretion is not necessarily premised on a finding of misconduct on the part of the personal representative.  The statutory criteria provided for an exercise of the discretion to suspend/remove are: –

“ … the due and proper administration of the estate and the interests of the persons beneficially entitled thereto so require [for a suspension or removal]”

27.  Whilst there are cases referring to the relevance of the choice of a testator and that the court should be cautious and sparing in the exercise of the power of removal (discussed by Deputy High Court Judge Bebe Chu, as she then was, in Wong Tat Lun Eddie v Wong Chi Ho Jimmy HCMP 2391/2013, 21 October 2014 based on the Western Australian case of The Estate of Erminia Agnes Rogers v Rogers [2009] WASC 358), it would be going too far to regard these as principles of law supplanting the statutory criteria.  Ultimately, it is an assessment by the court having regard to all the relevant circumstances of the case if removal is required for the due and proper administration of the estate and the interests of the persons beneficially entitled.  Each case must be decided on its own facts and the assessment involves an element of value judgment on the part of the first instance judge.

28.  In this connection, we agree with Mr Ho SC that in an appeal against such assessment the Court of Appeal should adopt the approach similar to the challenge to an exercise of discretion, see Hoptai Sharkfins Company Ltd v Productos Pesqueros Gallegos SL CACV 240/2014, 7 December 2015 at [18], [21] and [31] and NPYJ v SMRC [2018] HKCA 20 at [8].

29.  In substance, the submission of Mr Man was that the Judge did not address his mind to the normative significance of the appointment of the Defendant under the will of the Mother and this vitiated his exercise of discretion.

30.  Counsel made this submission for the following reasons:

(a)   The Judge did not allude to this normative significance in discussing the reasons for removal;

(b)   When setting out the relevant principles at [18] to [32] of the judgment, the Judge had taken those from the submissions of counsel for the Plaintiff without referring to this normative significance which was highlighted in the submissions of the then counsel for the Defendant (not Mr Man, but another senior counsel).  Mr Man made it clear in his oral submissions that he was not suggesting that the Judge did not exercise his independent judgment;

(c)   At [45] of the judgment, the Judge said that the Estate should best be administered by some independent professional.  Counsel submitted that it demonstrated that the Judge did not approach the matter correctly. 

31.  At the end of his submissions, Mr Man helpfully summed up the issue under this ground to this question: on what basis can one say, reading the judgment below, that the normative significance impacting on the approach of the court to remove the Defendant as executor has been taken into account.

32.  As explained below, after careful consideration of the submissions before us, we do not accept this ground as a valid one for our interference with the exercise of the discretion.

33.  The Judge was plainly aware that the Defendant was appointed by the Mother to be the executor under her last will.  He alluded to that fact at [4] of the judgment.

34.  The Judge was also forcefully urged by the then counsel for the Defendant to take the normative significance into account. That submission had been made in his written submissions[1]. The point was canvassed orally before the Judge not only by counsel for the Defendant[2] but also by counsel for the Plaintiff[3]. It is clear from the oral submissions that the Plaintiff accepted that the fact that the Defendant was chosen by the testatrix was a relevant matter.  At the same time, counsel for the Defendant, quite rightly, did not say that just because the Defendant was so appointed, he could not be removed.

35.  These competing submissions were fresh in the Judge’s mind when he penned his judgment.  The hearing took place on 4 April 2018 and the judgment was handed down on 21 May 2018.  We do not accept the lack of explicit reference to these submissions or the normative significance indicate a lack of appreciation of the same on the part of the Judge or his failure to have regard to them in the exercise of his discretion.

36.  Although the power of removal is to be exercised cautiously and sparingly, the crucial issue in the present case remains the seriousness of the derelictions of the Defendant in the administration of the Estate.  The Judge, in his succinct judgment, went straight to this crucial issue at [43] and [44] of the judgment.  We do not find any flaw in that assessment.  As has been said repeatedly by this Court, a judge is not obliged to set out every argument or point taken or case cited by counsel or every fine detail considered in the process of determination in the reasoned judgment: see Hoptai Sharkfins Co Ltd v Productos Pesqueros Gallegos SL CACV 240/2014, 7 December 2015 para 34 and Yui Chung Yin v Ng Kit Sum CACV 25/2013, 27 November 2015 para 28.

37.  Mr Man referred us to the judgment of the English Court of Appeal in The Queen (on the application of Hannah McClure and Joshua Moos) v The Commissioner of Police of the Metropolis [2012] EWCA Civ 12.  In particular, he relied on para 71 of that judgment where the Master of the Rolls said:

“ Any appellate court should be slow to latch onto what may be no more than linguistic imperfection or infelicity of expression in order to undermine an otherwise impeccable judgment. To borrow an expression of Lord Diplock (in The Antaios [1985] AC 191, 203) detailed semantic and syntactical analysis of first instance judgments by appellate courts is generally to be deprecated. However, one cannot simply ignore the way in which a judge expresses himself in a judgment: after all, the purpose of a reasoned judgment is to explain why the judge arrived at his decision. In the end, as with any question involving the interpretation of a document, one has to construe a judgment as a whole, but, at least in the absence of good reason to the contrary in a particular case, one should, in our view, approach any issue with a predisposition in favour of the judge having got the law right rather than wrong.”

38.  We agree with this approach.  The acid test, in our view, is as follows: reading the judgment as a whole in light of the matters that have been argued before the court, does the judgment adequately inform the appellate court and the parties of the reasoning of the judge in determining the case.  In this respect, one would naturally expect the judgment to discuss important issues whilst omission to address minor details or obvious matters are unlikely to form a valid basis for disturbing the judgment: see Yap Sui Kong v Yip Fong Tim [2018] 4 HKLRD 791 at [68].

39.  In the present context, as discussed above, the fact that the Defendant was appointed by the Mother as executor was clearly in the Judge’s mind.  There was also no issue between counsel that this was a matter to be taken into account.  The Judge quite rightly focused on the seriousness of the dereliction of duty on the part of the Defendant in assessing whether he should be removed.  He gave cogent and adequate reasons for his findings on the dereliction of duty.  He also directed himself to the statutory criteria.     

40.  Against such background, we do not accept that the mere fact that the Judge did not recite the obvious (and uncontested) relevance of the nominative significance could cast doubt on the exercise of his discretion. 

41.  The same can be said with regard to the lack of reference to the submissions of counsel for the Defendant.  We can understand, from the perspective of the Defendant, it would appear to be more balanced if the judgment at least mentioned the gist of such submissions.  But this is a case where it should be clear to everyone that the crucial issue is the seriousness of derelictions and the Judge did focus on that issue.  We are not persuaded that this Court should intervene with the exercise of discretion in this particular instance simply because of such imperfection in the judgment when we are quite certain that the Judge had taken adequate account of the normative significance of the appointment. 

42.  As regards [45] of the judgment, the Judge had alluded to the relevant principles he discussed earlier at [42].  At [27], he recited the statutory criteria and at [28] he cited a passage from the judgment in Cheng Tang Kam Yung v Tang Kam Cheung HCMP 147/2008, 26 August 2013 which ended with this sentence,

“ The concern at this stage is whether [the removal of the executor] is necessary for due and proper administration of the estate in the interest of its beneficiaries.”

43.  Thus, we have no doubt that it had not escaped the attention of the Judge that he should only exercise the discretion when it is necessary to do so for the due and proper administration of the estate in the interest of the beneficiaries.  At [45], the Judge said he exercised his discretion “for the cumulative reasons set out above”, viz his analysis as to the seriousness of the derelictions on the part of the Defendant at [43] and [44] and the approach recited earlier, including [27] and [28].

44.  At [45], the Judge further said that the appointment of another person “will relieve the defendant of his responsibility and enable the administration to move forward”.  This was said against the background that the administration had not been making much progress since the grant of probate in 2013 and the properties in the Estate were not that difficult to administer.  Clearly, the Judge did assess the matter based on a correct approach.

45.  Properly read in context, the use of the phrase “best be administered” at [45] by the Judge does not connote the idea that the Defendant was removed simply because someone else could do a better job.  It is simply a polite way of saying that it is necessary for the due and proper administration of the Estate in the interest of the beneficiaries to remove the Defendant.

46.  Mr Man also submitted in his written submissions that notwithstanding the findings of derelictions at [43] and [44], the order for account and inspection of documents was sufficient redress and there was no need to remove the Defendant.  With respect, we do not accept that the court is obliged to adopt an approach divided into different stages.  On the facts of the present case, given the serious finding against the Defendant at [43] (not only did he put himself in a position of conflict, he refused to accept that there was a conflict and put forward spurious reasons to justify his stance), the Judge was quite entitled to exercise the power of removal at the same time with making the order for account and inspection.

47.  Turning now to the ground regarding the wishes of the other beneficiaries, the Judge did raise with counsel the non-joinder of the other beneficiaries at the hearing below.  We have read the relevant exchanges in the transcript[4] and it is clear that the Judge was aware that there were other beneficiaries and their views were not placed before the Court in the application.

48.  The starting point is that there is no requirement in law to join all the beneficiaries to an application of this nature, see Order 85 Rule 3(2).  It was also accepted by the then counsel for the Defendant that as a matter of procedure, there is no necessity to join all the beneficiaries[5].  He chose to argue the case on the basis that it was up to the Plaintiff to prove his case for removal and if such proof requires the views of the other beneficiaries to be ascertained, it was for the Plaintiff to join them.

49.  As Mr Ho quite rightly points out, the statutory criteria refer to the interest of the beneficiaries rather than the wishes of the beneficiaries.  Hence, if the Judge was satisfied (and he was so satisfied in the present case) that the derelictions on the part of the Defendant per se were so serious that they gave rise to the necessity for removal of the Defendant, as a matter of law the Judge was entitled to exercise his power on the basis that irrespective of the view of the other beneficiaries, the state of affairs was such that it was necessary to do so. 

50.  In so saying, we do not rule out that there may be cases where a judge may find it necessary to seek the views of the other beneficiaries before exercising such power.  It is a matter of discretion for the judge. 

51.  In the present case, in light of the findings by the Judge on the derelictions, we do not consider it wrong for the Judge to exercise the discretion without seeking the views of those other beneficiaries.  This is particularly so when 2 other beneficiaries were the sons of the Defendant and he chose not to place their views before the Judge. Actually, it would be surprising if they were not aware of the proceedings given the longstanding conflicts between the Plaintiff and the Defendant and the lapse of time between the commencement of the proceedings and the hearing below.

52.  Coming to the last ground of appeal, the matters which the Defendant contended that the Judge failed to take account of were set out as follows under Ground 3 of the Notice of Appeal:

“ 3. The Judge erred in failing to consider or overlooking the following relevant matters:

(1) The unchallenged evidence that the Defendant has since around July 2013 put up Property 2 for rental in the market through Midland ICI Property Agent.

(2) The unchallenged evidence of the Defendant that Flat 907 had not been renovated for over 30 years, and requires substantial refurbishment with considerable costs in the region of HK$500,000 in order to become tenantable and marketable.

(3) The Defendant had on 28 March 2014 explained his reasons for occupying Flat 907 and the Plaintiff did not make any protest for some 2.5 years.

(4) The Defendant had on 18 February 2015 provided to the Plaintiff an inventory and account of the Estate for the period from 20 August 2012 to 23 January 2015 and the Plaintiff did not make any protest and/or did not raise any requisitions on the information disclosed therein for some 1.5 years.”

53.  We cannot see any merit in this ground.  First, as submitted by Mr Ho, these matters had been fully canvassed at the hearing and they were fresh in the Judge’s mind when he prepared the judgment. 

54.  Second, as regards the occupation of Flat 907, the Judge had duly considered the excuse put forward by the Defendant for keeping it for his own use at [33] to [35] and rejected the same.  At [41], the Judge described such excuse to be spurious. 

55.  Given that the defence case was that he was justified in keeping Flat 907 for his own use, the question of lack of renovation paled into insignificance.  So long as he continued to use the same for his own occupation, it is, with respect, preposterous to suggest that the property was not tenantable and the lack of rental was due to lack of renovation.  We are not surprised that the Judge did not find it necessary to address such contention explicitly. 

56.  The same observation can be made regarding delay in raising the complaints.  The Defendant was the executor and he had the duty to administer the Estate diligently even without any complaint.  We note that this point was only raised by way of submission and it was not even suggested in the affirmation of the Defendant that by virtue of lack of complaint he had been labouring under the apprehension that the Plaintiff consented to his free occupation of Flat 907 over all these years.   

57.  Insofar as these were and are the genuine grounds harboured by the Defendant instead of forensic points taken by counsel, they only serve to reinforce the Judge’s assessment that the Defendant had failed to appreciate the duty of an executor and put forward spurious reasons to avoid facing up to his derelictions.

58.  The remaining matter related to Property 2.  It was not a point taken, at least not seriously, in the evidence.  Nothing was said by the Defendant in his affirmation about the effort to lease the property.  Mr Man can only pinpoint a note in the 2016 account and inventory[6] to provide the basis for the submission. 

59.  No particulars were given as to the asking rents in the marketing of the property and the history of feedbacks from the market after the engagement of Midland ICI Property Agent and the Defendant’s responses to the same.  

60.  Thus, when the point was made only by way of submission, it was advanced without sufficient evidential backing.  It is not correct to suggest that the mere fact that the property had been put up in the market through an agent can be an adequate answer to the alleged wastage of the asset as found by the Judge at [36] of the judgment in light of the long period (55 months, as highlighted by the Judge) of lack of income from it.

61.  Further, the Judge focused on the more serious derelictions concerning Flat 907 and inadequacies of the account at [43] and [44] in coming to the decision on removal. 

62.  In such circumstances, we see nothing amiss notwithstanding these matters were not explicitly addressed in the judgment.

63.  Thus, there is no valid basis for us to interfere with the Judge’s exercise of discretion and the appeal falls to be dismissed accordingly.

64.  We would add that even if we were to come to a different view on the merits of these grounds of appeal and we were to exercise the discretion afresh bearing all these matters in mind, we would have come to the same conclusion as the Judge given the seriousness of the derelictions and the demonstrable absence of insight on the part of the Defendant on the duty of an executor. 

65.  Hence, we shall dismiss the appeal and make a costs order nisi that the Defendant shall pay the costs of the Plaintiff in this appeal, including the costs of the summons of 16 July 2018 (which shall include the costs of the preparation of evidence in reply on a de bene esse basis as the Court had directed that the summons be heard as the same time of the appeal), with certificate for 2 counsel. 

66.  Last but not least, we are grateful to counsel for their able assistance.