THE INCORPORATED OWNERS OF ESTORIL COURT v. SHEEN WEALTH INDUSTRIAL LTD

LDBM 152/2013

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 152 OF 2013

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D E C I S I O N

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Undisputed Facts

1.  The applicant is the incorporated owners of Estoril Court and the respondent is the owner of the top floor including the roof of Block 1.  The third party is the Manager of the Estoril Court.

2.  On 3 June 2013, the applicant filed the Notice of Application in this case against the respondent for, inter alia, an order to remove certain structures on the roof.

3.  The exchanges between the parties concerning a settlement by way of sanctioned offer are made between the solicitors acting for them.

4.  By a letter dated 17 July 2014 (“717 Letter”) (page 56 of Hearing Bundle), the applicant made a sanctioned offer (“Sanctioned Offer”) pursuant to Order 22 rules 2 and 4 of the Rules of High Court (“RHC”) to the respondent, in full and final settlement of the applicant’s claim as well as the counter-claim by the respondent.  Terms of the Sanctioned Offer are as follows :

(1)    Within 4 months from the date of the Consent Order (or such other period as agreed by our client), you client shall, at its own costs :

(a)     Remove the Structures as defined and particularized in §§10-11 of the Grounds of Application, and

(b)    Reinstate the roof above 44/F of Block 1 of Estoril Court to its bare and original state to the satisfaction of our clients;

(2)    Your client shall bear all costs incidental to and necessitated by the works set out in paragraph 1 above (including and not limited to waterproofing work to the roof slab);

(3)    Your client shall not, whether by itself or its directors, officers, servants, agents, employees, tenants, licensees or otherwise howsoever repeat or continue any of the acts complained of in the Grounds of Application or carry out any similar acts; and

(4)    Your client shall pay our client’s costs of the Action to be taxed if not agreed at District Court scale.

5.  The respondent is entitled to accept the Sanctioned Offer within 28 days of the offer and such period should expire on 14 August 2014.

6.  In reply, the respondent sent the letter dated 31 July 2014 (“731 Letter”) (page 57-58 of Hearing Bundle) which stated :

“We are instructed that our client accepts the terms the Sanctioned Offer but our client shall commence and complete the works stipulated at Sub-paragraph 1 of your Sanctioned Offer within 4 months (or such other period as may be agreed by the Applicant and the Respondent) from the date of completion of the removal of the water expansion tank and the reinstatement of the waterproofing works arising therefrom, and such work shall be undertaken by the Applicant to the satisfaction of the Respondent.

In the Premises, we should be grateful for your draft Consent Summons and Deed of Settlement (if any) for our consideration forthwith.” (§2-3)

7.  The applicant replied by a letter dated 4 August 2014 (“804 Letter”) (page 59 of Hearing Bundle) which stated :

“As you have made, inter alia, the above counter-proposal to our sanctioned offer, our sanctioned offer (made by way of our letter of 17 July 2014) is therefore deemed to have been rejected by your client and we shall proceed to prepare the Applicant’s case for trial accordingly.”

8.  By a letter dated 5 August 2014 (“805 Letter”) (page 60-61 of Hearing Bundle), the respondent stated that :

“Please note that at the 1^st sentence of our 2^nd paragraph of our letter, we have expressly stated our client’s acceptance to the terms of your Sanctioned Offer dated 17 July 2014. The reference to the proviso thereto was to smoothen the performance of the removal and reinstatement works under the Sanctioned Offer. We are instructed that if your client does not intend to deal with the matter at this stage, then our client could simply accept your Sanctioned Offer without any reference to the same at all.

In the premises, you are not allowed to arbitrarily regard our above reference to be a ‘deemed rejection’ of your Sanctioned Offer.  For record purpose, and to clarify the misunderstanding, if any, we are instructed to hereby accept the terms of the Sanctioned Offer unequivacably on the terms set out on page 2 of your letter dated 17 July 2014.  Please proceed to let us have a draft Consent Summons for our comments, if any on behalf of the Respondent for filing to the Court forthwith. ”

9.  On the 13 August 2014, the respondent sent another letter to the applicant attached to it a Notice of Acceptance of the Sanctioned Offer (“Notice of Acceptance”) (page 62-66 of Hearing Bundle).

10.  There are further correspondences between the parties from 13 August 2014 to 16 September 2014 (page 62-104 of Hearing Bundle).  In these correspondences, the applicant reiterated that the respondent had rejected the Sanctioned Offer by way of a counter-offer and the respondent was not entitled to accept the Sanctioned Offer, therefore the Notice of Acceptance was invalid.  On the contrary, the respondent maintained that the Sanctioned Offer had been accepted, if not by the 731 Letter, by the 805 Letter or the Notice of Acceptance.

11.  At the call-over hearing on 17 September 2014, solicitor for the respondent submitted that these proceedings should be stayed upon the acceptance of the Sanctioned Offer whilst solicitor appearing for the applicant contended that the Sanctioned Offer had not been accepted.  The issue as to whether the Sanctioned Offer had been accepted is the subject of argument before me. 

12.  At this hearing, both parties maintained their position as indicated on 17 September 2014.  Mr Wu for the applicant also asked this Tribunal to rule on 2 outstanding issues on costs, ie the costs of mediation and the reserved costs in respect of an application for inspection of respondent’s premises (“Inspection Summons”), should this Tribunal found against the applicant on the issue concerning the Sanctioned Offer.

Sanctioned Offer

Respondent’s Contention

13.  Mr Lin contended that the terms of the Sanctioned Offer included the words that “or such other period as agreed by our client”, this allowed room for the date to be fixed for the removal of the structures or reinstatement of the roof suggested by the applicant to be negotiable.  There is clear acceptance of the Sanctioned Offer in the 1^st sentence of the 731 Letter.  This Tribunal do not have to rule on whether the 731 Letter amounts to a counter-proposal since the 805 Letter and the Notice of Acceptance clearly amounted to a valid acceptance.

14.  And in view of the express statutory provision of Order 22 r.7(1) against any withdrawal or diminution of the sanctioned offer within the 28 days’ period without leave of the court, there is no basis for the applicant to contend that the Sanctioned Offer was not capable of being accepted by the respondent after the 731 Letter, even if the said letter did constitute a counter-offer. 

15.  Mr Lin had cited the following authorities to support his argument :

Rai Rana Magar Pabitra (Personal Representatives) & Anor v Pacific Construction (HK) Co Ltd [2011] 3 HKC 550

Wealthy Century Investment Ltd v DBS Bank (HK) Ltd [2010] 6 HKC 130

Applicant’s Reply

16.  Mr Wu submitted that the acceptance by the respondent in the 731 Letter is not an unreserved acceptance.  Rather, the respondent had introduced new requirement by enlarging the period of compliance with additional terms about the water tank and the waterproofing works to be undertaken by the applicant to the satisfaction of the respondent.  This is a clear message that the respondent did not accept the Sanctioned Offer and instead placing new terms for the consideration of the applicant.  The applicant is entitled to treat the 731 Letter as a “deemed rejection” of the Sanctioned Offer.  This is not withdrawal or diminution of the Sanctioned Offer so the authorities relied upon by the respondent is not relevant.

17.  And in the 805 Letter, even though it appeared to be an acceptance without any proviso, the respondent asked for “a draft Consent Summons” for its comment. If parties are not agreeable on the terms of the draft Consent Summons, no settlement can be reached.

18.  And in the letter dated 15 August 2014 (“815 Letter”) (page 73-74 of Hearing Bundle), the respondent had raised the issue about costs of this case by saying that :

“… For record purpose, the Respondent is bound to pay only those costs which are reasonably and necessarily incurred upto the date of the Acceptance of the Sanctioned Offer in full and final settlement of the dispute with the Applicant. We reserve our client’s rights to tax off those costs incurred other than for the necessary disposal of the proceedings pursuant to the settlement.” (page 74 of Hearing Bundle).

Mr Wu submitted that this can only mean that there was no concluded deal between the parties.

Discussion

19.  The issues to be determined as far as the Sanctioned Offer is concerned are :

(a)     Whether the 731 Letter amounts to a counter-offer ;

(b)    If answer to question (a) above is yes, whether the applicant can take the counter-offer as a rejection of the Sanctioned Offer;

(c)     Whether the Sanctioned Offer is still subsisting after the 731 Letter and able to be accepted by the respondent.

20.  From the wordings of the 731 Letter, I agree with Mr Wu that it cannot be considered as an acceptance of the Sanctioned Offer.  Even though the respondent had stated at the start of the paragraph that the Sanctioned Offer was accepted, such acceptance is not an unreserved acceptance but rather a counter proposal for the settlement of this case with new terms involved. 

21.  Having said so, I do not agree with the applicant’s contention that a counter proposal should be deemed a rejection of the Sanctioned Offer. 

22.  The nature of a sanctioned offer had been succinctly stated in the judgment of Wealthy Century (supra) by Deputy District Judge Alfred Chan which I totally agree and shall adopt in this judgment:

“8. A sanctioned offer, once made, will have the effect and consequences provided for under O 22. If made not less than 28 days before the trial commences, it may be accepted by the offeree any time within 28 days, during which time it cannot be withdrawn or diminished by the offeror without the leave of the court. Even after the 28 days, it remains open for acceptance by the offeree, subject to the court’s leave or the parties’ agreement on the liability for costs. A sanctioned offer does not normally ‘lapse’. These provisions represent obvious departures from the normal rules of offer and acceptance in the law of contract.” (at §8)

23.  It is also the findings in Wealthy Century that :

“10. It is also worth noting that O 22 itself recognises that a party is free to make an offer to settle proceedings in whatever way he chooses : see O 22 r 2. This also means that parties may make further offers for settlement in tandem with an existing sanctioned offer or sanctioned payment, but outside the ambit of O 22. While at this relatively early stage of the development of the law and practice under the new O 22, it would be unwise for me to rule out the possibility that a subsequent without prejudice offer of settlement may in appropriate circumstances be capable of revoking a sanctioned offer, at the same time I have no doubt that it would be wrong to hold that the making of any subsequent offer, without more, would inevitably revoke an earlier sanctioned offer as in the law of contract.” (at §10)

24.  The views expressed by Deputy Judge Chan quoted above is accepted by Bharwaney J in the case of Rai Rana (supra) which involved a case where the defendant, after rejecting the sanctioned offer, seeks leave to accept the same after the expiry of the 28 days’ period.  Bharwaney J’s attention was also drawn to §8 of Wealthy Century and Bharwaney J said that :

“22. I agree with these observations … These observations accord with Recommendation 41 of the Civil Justice Reform Final Report of March 2004 (at §316 on p 156) that :

 ‘A sanctioned offer or payment should be required to remain open for acceptance for 28 days after it is made,… unless leave is granted by the court for its earlier withdrawal.  Thereafter, the offer could be withdrawn and if not, would continue to be capable of acceptance.’”

25.  Bhawaney J also found that :

“24. As the provisions are entirely procedural, the fact that counter-offers are made by the offeree will not prevent the offeree, after the expiry of 28 days from applying to court for leave to accept the sanctioned offer…As Moore-Bick LJ observed in Gibbon v Manchester City Council and LG Blower Specialist Bricklayer Ltd v Reeves [2010] 1 WLR 2081 at §16 :

‘To import into Part 36 the common law rule that an offer lapses on rejection by the offeree would … give rise to disputes about whether the offer had been rejected in any given case so as to render it incapable of acceptance’.

28. By the same token, where a sanctioned offer is subsisting in the sense that it has not been withdrawn, albeit that 28 days have lapsed from the date that the sanctioned offer was made, and the offeror successfully resists an application by the offeree for leave of court to accept the sanctioned offer pursuant to r 5(7) , then the sanctioned offer is no longer subsisting …”

26.  It is clear from the ruling by Bhawaney J that a sanctioned offer, unless withdrawn, remained subsisting and open for acceptance during the 28 days’ period.  A rejection or counter-offer is not a withdrawal and will not render the sanctioned offer incapable of acceptance.  Only a withdrawal of a sanctioned offer can have such effect.  As long as there is no withdrawal, the sanctioned offer is still in subsistence and can be accepted by the offeree within the 28 days’ period.

27.  So even if the 731 Letter amounts to a counter-offer, this will not render the Sanctioned Offer cannot be accepted thereafter.  Applying the findings in Rai Rana, if an offeree who had made a counter-offer can accept the Sanctioned Offer after the 28 days’ period with leave of court, why can’t the offeree accept the same within the 28 days’ period.

28.  And even if the 731 Letter can be deemed to be a rejection, applying the facts of Rai Rana, if a rejected sanctioned offer can be accepted with leave of court after the 28 days’ period, why can’t the offeree accept the same within the 28 days’ period when the rejection of the sanction offer is not even a factor to be considered in the ruling in Rai Rana in the consideration of whether leave should be granted. 

29.  The crux of the matter turns on whether the sanctioned offer was still subsisting “in the sense that it has not been withdrawn”.  As long as the sanctioned offer had not been withdrawn, it continued to be capable of acceptance irrespective of whether there was any counter proposal or rejection of the same during the 28 days’ period. 

30.  By the time the 805 Letter and the Notice of Acceptance were being sent and served, the Sanctioned Offer had apparently not been withdrawn and the respondent should be entitled to accept the same and such acceptance must be a valid acceptance. 

31.  The argument by Mr Wu that since the respondent had asked for a draft consent summons to be prepared for its consideration in the 805 Letter, this connotes a settlement may not have been reached.  I disagree.  The 805 Letter and the Notice of Acceptance are unequivocal in its contents and according to O.22 r.12, “a sanctioned offer is accepted when notice of its acceptance is served on the offeror”.  Once the sanctioned offer is being accepted, the legal consequences stipulated in O.22 followed.  The preparation of the consent summons is just a procedure to incorporate the agreed terms of the Sanctioned Offer into a document to be submitted to the court for relevant order to be made and did not allow the parties a second bite of the cherry.  The consideration either party can have as far as the consent summons is concerned, is to make sure that the agreed terms are being correctly incorporated.

32.  As for the argument by Mr Wu that in the 815 Letter, the respondent had raised the question of costs and this demonstrated that there was no concluded deal between the parties.  Again I disagree.  What the respondent had said in the 815 Letter concerning costs is just to state the legal consequences on costs upon an acceptance of a sanctioned offer and the respondent’s right in the taxation of costs.  These had nothing to do with the agreed terms of the Sanctioned Offer or amounts to an incomplete deal between the parties.

33.  I found the Sanctioned Offer is capable of acceptance even after the 731 Letter and the respondent had accepted the same by the 805 Letter.  If I were wrong on this, the Sanctioned Offer had been accepted by the Notice of Acceptance served on 13 August 2014.  According to O.22 r.22, the claim in these proceedings should have been stayed as a result.

Outstanding Issues re. Costs

34.  Mr Wu asked this court to consider 2 outstanding costs orders should this court find against the applicant in that the Sanctioned Offer had been validly accepted. The 2 costs matters are :

(a)  a costs reserved order made on 30 April 2014 concerning the Inspection Summons; and

(b)  costs of the mediation.

35.  Mr Wu asked this court to order costs reserved for the Inspection Summons be to the applicant since the respondent had agreed to the site visit after issuance of the Inspection Summons so the applicant should be considered the victor on this issue.  And this reserved costs also formed part of the costs of the action and should be awarded to the applicant.

36.  Mr Wu also asked this court to make an order for costs of the mediation be to the applicant.  It is the submission of Mr Wu that O.22 r.20(1) envisages that upon acceptance of the sanctioned offer, the applicant should be entitled to have its costs of the proceedings up to the date of serving notice of acceptance. Costs of the proceedings must include costs of mediation.

37.  Mr Lin raised 2 objections to this costs application.  Firstly, a procedural point that there is no summons taken out by the applicant for the issues of costs to be dealt with at this hearing (PCCW-HKT Telephone Ltd v Telecommunications Authority CACV 274/2003 7 September 2004).  Secondly, after an acceptance of the Sanctioned Offer, parties cannot ask the court to revisit any costs reserved or costs in the cause (Golden Tonn Industrial Limited v Hong Kong Cyberport (Ancillary Development) Limited HCA 362/2011 27 August 2014).   In any event, with the case being settled by way of the Sanctioned Offer without the merits of the case being determined, any costs order agreed should not be considered as costs order in the cause (Hong Kong Civil Procedure 2014 §22/1/1).

38.  It is the contention of the respondent that there is no issue of costs to be determined by this Tribunal and all costs after acceptance of the Sanctioned Offer should be to the respondent.

Procedural Objection

39.  In the case of PCCW-HKT Telephone Ltd (supra), the respondent made an application to vary the costs order nisi by way of a letter whilst the plaintiff asked for certificate for 2 counsel in its written submission only.  The Court of Appeal had raised observation on this practice and commented that :

“applications to court should be made by way of a summons or motion, and not by the informal way that was chosen in the present case. The reason for this requirement is to enable the other side and the Court to understand exactly the nature and extent of what is being asked for. Otherwise, there is a danger that it becomes unclear just what is being sought from the Court, thereby allowing parties to ask for relief in a haphazard manner.” (at §11)

40.  Mr Lin submitted that the application concerning costs is only raised by Mr Wu in his written submission and without a summons, this Tribunal should not entertain such an application.

41.  Section 10(5)(a) of the Lands Tribunal Ordinance provided that :

“(a) The proceedings of the Tribunal shall be conducted with as much informality as is consistent with attaining justice”.

This means the Tribunal should not insist on procedural requirement, like the filing of a summons, before it deals with any matter before it if justice so required.

42.  Given the fact that the written submission of Mr Wu is being served on the respondent at least 6 days before the hearing, the respondent should be well aware of the basis of the application for costs.  The intention of taking out a summons before the hearing envisaged in the case of PCCW-HKT Telephone had been met and I found no injustice is likely to be caused to the respondent who had ample opportunity to prepare for the argument.

43.  If this Tribunal insisted on a summons for the application for costs and declined to deal with the matter at this hearing, parties have to come before the court again on another occasion for such purpose.  Since parties are before this Tribunal on the argument concerning the Sanctioned Offer, if the application for costs raised by the applicant can be disposed of at the same time, this can save the parties costs and time to attend another hearing to deal with it.  Such a move is consistent with the underlying objectives under O.1A r.1 of RHC, ie with all outstanding issues to be dealt with, if possible, at the same occasion to ensure that it is being dealt with as expeditiously as is reasonably practicable and increase the cost-effectiveness of the hearing already scheduled.  I found justice required the application for costs raised by the applicant to be dealt with at this hearing even without a summons before the court.

Revisit of the Costs Order

44.  Golden Tonn (supra) is an appeal from an order of a Master which involved the issue as to whether the scope of “costs of the proceedings” encompasses reserved costs.  The reserved costs in this case involved costs for an expunction summons (as named in the judgment) and 2 other reserved costs order.  On an application by the plaintiff by summons, the Master “dismissed the application and ruled that there should be no order as to costs in respect (sic) the expunction summons as well as the other two reserved costs order” (at §11). 

45.  Deputy High Court Judge Le Pichon, upon hearing arguments of the parties, found that :

“14. It is common ground that pursuant to rule 20(1), the plaintiff is entitled to the ‘costs of the proceedings’ up to the date of acceptance of the sanctioned offer. It is also common ground that it may be displaced should the court order otherwise by applying the ‘otherwise proviso’.

15. The parties differ as to the scope of ‘costs of the proceedings’ specifically, whether it encompasses reserved costs.

17. The scheme to be discerned from rule 20(1) in light of the rationale behind it is that costs are recoverable because they fall under ‘general costs’ of the action or because the otherwise proviso applies. I do not consider that there is scope for a third element or limb to exist within that scheme.

26. But does it mean that in every sanctioned payment case that is settled, the receiving (sic) is to be deemed the ‘clear or overall victor’ for the purposes of reserved costs?

27. As a matter of first principles, it would not appear to be correct since settlements come about for a variety of reasons and the merits of the defence may not necessarily be the overriding consideration…. (As an aside, for my part, I would say that it is well-nigh impossible for someone not having been involved in this matter to come to any informed view as to which party would have prevailed had the matter been fought to a conclusion.)

28. While Etratech was silent on the question of reserved costs because it did not arise in that case, it is pertinent to note that, as stated by the judge, Order 22 is a new, self-contained code introduced by the Civil Justice Reform into the Rules of High Court in April 2009.

29. Given the rationale for the prima facie rule as stated in Etratech (with which I agree), … it would seriously undermine the certainty as to costs consideration that underpins the prima facie rule. For it would mean that the incidence of reserved costs which, in a particular case, might well be a significant if not also the dominant consideration in the equation. If Mr Man were correct, a party would not be in a position to evaluate the sanctioned offer on an informed basis because the ‘bottom line’ would be wholly uncertain and subject to future determination which necessarily involves the prospect of incurring yet further costs.

31. This simply brings home the importance of certainty of costs. If ‘costs of the proceedings’ had to involve a future determination by the court which would very much be at large, such a scenario would be a serious disincentive to the parties reaching a settlement. That would appear to defeat the very purpose of the rules providing for sanctioned payments.

32. For those reasons, I do not consider that on a proper interpretation, rules 20(1) and 22(5) contemplate that a party who has accepted a sanctioned offer could ask the court to revisit the merits of each set of reserved costs or for that matter each order of costs in the cause on a future occasion after acceptance of a sanctioned offer.”

46.  I agree with the findings in Golden Tonn quoted above which is also binding on this court.  Applying the findings to this case, once the Sanctioned Offer had been accepted by the respondent on 5 August 2014 or on 13 August 2014 latest, the question of costs should have been disposed of by the agreed costs order in the Sanctioned Offer.  Quoting Jeremy Poon J in Etratech Asia-Pacific Limited v Leader Printed Circuit Boards Ltd [2013] 2 HKLRD 1184, by accepting the Sanctioned Offer, “a party knows the exact extent of his exposure or entitlement to costs” (at§19).

47.  To allow the applicant’s application for costs concerning the reserved costs order at this hearing, the prima facie rule as to costs consequences will be upset and this is inconsistent with the rationale behind a sanctioned offer.

48.  In the case of Chun Wo Construction & Engineering Co Ltd and others v China Win Engineering Ltd HCCT 37/2006 12 June 2008, Lam J (as he then was) in considering whether costs of mediation are costs of the action, had said the followings :

“90. Costs incurred on negotiations with a view to settlement are costs incidental to legal proceedings even though the process of negotiations is not part of the legal proceedings.

92. As a matter of principle, for the purpose of deciding whether some costs should be regarded as costs incidental to legal proceedings, I fail to see any valid distinction between costs incurred on negotiations and costs incurred in mediation.

93. In Vellacott v Convergence Group plc [2007] EWHC 1774 (Ch) Rimer J (as he then was) held that the costs of a failed post-action mediation were costs incidental to the court proceedings. The English Court of Appeal made a similar order in Eagleson v Liddell [2001] EWCA Civ 155.

94. It is a question of fact whether a mediation is so closely connected with a piece of litigation such that the costs of mediation can properly be described as costs incidental to a set of legal proceedings.

97. As with other items of costs, the court should take into account of the agreement between the parties in deciding the incidence and the quantum of costs.  In Lobster Group Ltd v Heidelberg Graphic Equipment Ltd [2008] EWHC 413 (TCC), 6 March 2008, Coulson J held where parties agreed to bear their own costs of the mediation, the court would not re-open the liability as to such costs.”

49.  Applying the findings of Lam J, costs of mediation are recoverable as costs of the action but the agreement between the parties at the mediation concerning costs of mediation should be considered and the court would not re-open the liability as to such costs.  In this case, Mr Wu had drawn this Tribunal’s attention to a Mediation Minute (page 1-3 of Hearing Bundle) which recorded the agreement between the parties that “fees payable in the mediation shall be costs in the cause of the action (including the Third Party Proceedings) and be recoverable as part of the costs of the whole proceedings if the mediation fails” (at §5).

50.  So it is agreed between the parties that costs of the mediation should be recoverable as costs of the action and shall be costs in the cause of the action.  Applying the findings in Golden Tonn quoted above, costs in the cause, like reserved costs, cannot be revisited after acceptance of a sanctioned offer and no one can be deemed to be the victor without the merits of the case being determined.

51.  Having considered the above, the application by the applicant for costs reserved as well as for costs of the mediation must fail.

The Order

52.  These proceedings should have been stayed upon acceptance of the Sanctioned Offer by the respondent on 5 August 2014 and the applicant’s insistence of having this case proceed to trial is unjustified.

53.  It is ordered that :

(a) Costs of this case after 5 August 2014 be to the respondent, to be taxed if not agreed on party and party basis, at District Court scale without certificate for counsel; and

(b) Costs of this argument be to the respondent, to be taxed if not agreed on party and party basis, at District Court scale with certificate for counsel. 

(c) This is a costs order nisi.  Unless any of the parties apply by summons to vary it, the costs order nisi shall be made absolute upon expiry of 14 days.