JOHN PHILLIPS GOLDIE v. GRANDTAG FINANCIAL CONSULTANCY & INSURACNE BROKERS LTD

HCMP 23/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 23 OF 2006

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J U D G M E N T

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1.  The applicant is one of several shareholders and, for the meantime, a director of the respondent.  He used to be of Hong Kong but now lives in England.  The respondent carries on business as the name suggests of financial consultants and insurance brokers, under the stewardship of the major shareholder Jameson Leung.

2.  There has been a falling out, and these proceedings.  On 5 January last the applicant filed an originating summons seeking various orders against the respondent, thus :

“1.   The hearing of this Summons be abridged;

2.    The Applicant be at liberty to inspect the following books of account of the Respondent so far as the same may be in the possession of the Respondent (as hereinafter defined) at the Respondent’s registered office :

(a)   general ledgers, sub-ledgers, bank books and statements, payroll records, receipt vouchers, payment vouchers, journal vouchers and monthly management accounts for the period from 1^st January 2005 up to date of this order;

(b)   board minutes and minutes of meetings of directors; and during the hours of 9 a.m. to 5:30 p.m. on Mondays to Fridays and 9 a.m. to 1 p.m. on Saturdays.

3.   The Respondent do give to the Applicant an immediate inspection of :

(a)   the Register of Members and the Index of the Names of Members of the Respondent;

(b)   the Register of Directors and Secretaries, and

FOR A DECLARATION that :

4.   The Respondent is neither entitled nor bound to transfer shares of Mr Lui Kin Yeung, Mr Lee Shu Kwan, Mr Tam Kwok Tai in the Respondent company or any of them to Mr Lam Ping Chun notwithstanding the fact that such transfer of shares has been allegedly approved in a Directors meeting on 5^th December 2005 at the registered office of the Respondent until a Directors meeting can be properly convened.

5.   Further and/or in the alternative the board of directors be restrained from acting on resolutions made in the said meeting of 5^th December 2005 unless the same can be confirmed in a meeting properly notified and convened.

AND FOR AN ORDER that :

6.   The Respondent be restrained from holding the EGM putatively convened for the 7^th January 2006, 9 a.m. to be held at the Respondent’s registered office until the said meeting can be properly convened.

7.   The Respondent do pay costs of this application to the Applicant.”

3.  As soon as they had filed, the applicant’s solicitors sought an urgent hearing of the summons.  They were given 2:30 p.m. on the same day before the Duty Judge.  At 12:30 p.m. the applicant telephoned Mr Leung of the respondent, who happened to be in China on a business trip, informing him of the application and of the appointment, but declined to tell him what it was about.  At or about the same time Mr Giles of the applicant’s solicitors telephoned the company’s office and spoke to Mr Lau, also a director.  At 1:10 p.m. the application and a supporting affidavit of the applicant were served on the respondent’s registered office.

4.  In the event, there was no appearance for or on behalf of the respondent and the matter proceeded in its absence at the appointed time of 2:30 p.m.

5.  Following consideration of the issues the Judge made orders in terms of paragraphs 2, 3, 5 (being an alternative to paragraph 4) and paragraph 6.  This was thus an order in terms of the originating summons with only one matter held over; that of costs.  He ordered these to be reserved.

6.  Lest it be suggested (as it has been) that this was an interlocutory application, it was not.  There was no separate summons.  There was no return date asked for or given.  There was no proffering of an undertaking in damages.  There was no or scant heed paid to the practice directions in PD11 1/7.

7.  The last sentence of the applicant’s affidavit in support reads :

“I humbly seek an order in terms of the originating summons.”

And that is what he got.

8.  The application now before me is by the respondent seeking a discharge of the orders.  Jurisdiction lies in O. 32 r. 6 RHC which states that :

“The court may set aside an order made ex parte.”

9.  Why did the applicant take the action he did?  I come to that next.

History

10.  The respondent which I shall call from now on Grandtag or the company was incorporated and began to do business in 1999.  As at 2005 its shares were held in various percentages by Mr Leung who held the most, the applicant John Goldie, and three other investors Raymond Lee, Edward Lui and Michael Tam.  The directors were Messrs Leung and Goldie and a third non-shareholder called Lau Kam Chuen.

11.  Day-to-day management of the business of Grandtag at all material times has been undertaken by Mr Leung.  As I understand it Messrs Lee, Lui and Tam played no significant part.  Mr Goldie has been playing a limited role for which he has been paid a salary and the cost of attending regular directors’ meetings in Hong Kong.

12.  Mr Goldie in his affidavit filed in support of the summons said that in early 2005, Messrs Lee, Tam and Lui expressed concern at the way Grandtag was being run and the paucity of information that was being disclosed to them as members.  This persuaded him to call for an independent review of the accounts and books by a firm of chartered accountants, Baker Tilly; they completed a report in May 2005.  Mr Goldie learned from the report that there were various entries in the accounts which he said warranted an explanation by Mr Leung.  And overall, whilst the turnover for 2004 was a satisfactory $64 million plus, he was concerned that the overheads exceeded that figure so that a net loss was posted.

13.  He went on to depose that having been resident in the UK and thus away from Hong Kong for most of the time, he had been content to leave Mr Leung in effective sole charge.  But since the report he has became concerned about protecting his financial stake in Grandtag.  In that regard, having come to Hong Kong, he had his solicitors write to Grandtag, for the attention of Mr Leung, by letter of 28 December 2005, requiring that he be allowed to inspect the company’s books of account and other formal company documents as spelt out in the letter by 10 a.m. the following morning.

14.  On the same day he received an email in response from Tim Lit, the Administration and Accounting Manager, that Mr Leung was on leave until 3 January 2006.  Further, that the office was under renovation and that the material Mr Goldie was asking for access to was packed away; thus, under the circumstances, it would be extremely difficult to furnish his request as at the following day.

15.  Notwithstanding, Mr Goldie did attend at the office the next day.  The day after that his solicitors wrote again, complaining their client’s requested access to the various documents and accounts and so on had been denied; that the company was in “flagrant breach” of various provisions of the Companies Ordinance.  They wrote :

“These breaches will be reported to the court and Registrar of Companies in due course.”

The letter gave notice that he would make another attempt on 4 January to exercise his right of inspection.

16.  By the same date 30 December Grandtag responded :

“We are well aware of your client as a director’s right to look at the books of the company generally.  We have never declined/denied your client such right.  The difficulty arises because the office premises are now undergoing large scale re-fitting.  Many of the books are packed up so that they are temporarily unavailable.  It is expected that the works will be completed in 3 weeks’ time.”

17.  Meanwhile, another difficulty had emerged.  The shareholders Lui, Tam and Lee had combined to sell their shares to one Lam Ping Chun.  With approval by the directors necessary to validate the transfer the directors were notified of a directors meeting scheduled for 5 December 2005 at 9:30 a.m.  Mr Goldie was notified, or purportedly so, by having notice of the meeting emailed to him, in England, on 30 November 2005.

18.  Mr Goldie claims to have been particularly concerned about this, given the unsatisfactory features of the Baker Tilly report, and the prospect that three independent members were to be replaced by someone called Lam who for all he knew was a nominee of Mr Leung.  Having received the email, he requested that the meeting be deferred to the afternoon of 5 December so that, allowing for the time difference, he could attend by telephone conference.

19.  He claims this request was ignored; in the event the meeting proceeded on time without him; the minutes revealed that the transfer of all of the shares of Messrs Lui, Lee and Tam were approved.  Two of the directors, Messrs Leung and Lau were marked present.  He, Goldie, was marked absent.

20.  So it was that in his solicitors’ letter of 30 December complaining of the denial of access to the books of account and so on, he got them to write :

“We also put on record that the directors meeting purportedly held on 5 December 2005 was without notice to Mr Goldie who had made it quite clear that he wished to attend the meeting by telephone.  Mr Goldie does not accept the validity of the purported approval of the transfer of shares …”

21.  The point of that was his contention, presumably on advice, that email notification was not valid.

22.  The response by Grandtag of 30 December was to put on record that the directors meeting had been properly convened and resolutions were passed; that the allegation was unfounded and unfair.

23.  This is the email which Mr Goldie received :

“GRANDTAG

Financial Consultancy Group

Dear Directors,

We are notified by existing shareholders — Raymond, Edward & Michael that they are going to transfer their shares to Mr Lam Ping Chun.

A director meeting is required to resolve this issue.  The followings are the meeting particulars :

Date : 5^th December 2005 (Monday)

Time : 09:30 a.m.

Venue : The managing director office of the company.

Subjects to be resolved: To approve the share transfer from Mr Lee Shu Kwan, Raymond, Mr Lui Kin Yeung, Edward & Mr Tam Kwok Tai to Mr Lam Ping Chun with immediate effect.

Thank you very much for your kind attention.

Have a nice day.

Kind regards,”

24.  There was a further development, in the shape of another email.  It exhibited a notice of an EGM of the company to be held on 7 January 2006, called for the purpose of giving consideration to a special resolution removing Mr Goldie as director of the company “with immediate effect”.  Mr Goldie does not depose to the date of receipt, only that he received it.  However, it is dated 9 December and there is nothing to indicate he did not get it on that date. 

25.  This gave rise to a further letter from his solicitors of 3 January 2006 to the effect that he had not received notice as a shareholder in accordance with the Companies Ordinance, Table A and the Company’s Articles of Association, demanding that the EGM be cancelled, failing which :

“We have instructions to apply to court for an injunction to restrain the holding of the purported EGM.”

Thus again the validity of notice by email was put into contention.

26.  The response of the same date stated in part :

“We also refer to your statement that your client has not received the notice of EGM.  We wish to put on record that the notice has been sent out on 9 December 2005 to your client through his email.  This mode of sending notices has been adopted by the Company as an effective means of communication for many years of which your client is well aware.  As a matter of fact, he did receive the notice of the EGM on that day as he complained to Mr Jameson Leung over the telephone of the proposed resolution to remove him as director of the Company.”

27.  The notice sent out was in the following form :

“GRANDTAG FINANCIAL CONSULTANCY & INSURANCE BROKERS LIMITED

NOTICE IS HEREBY GIVEN THAT THE EXTRAORDINARY GENERAL MEETING OF THE COMPANY will be held on the following date, and at the following time and place namely :-

Date: 7 January 2006

Time: 9:00 a.m.

Place:   27/F Guangdong Finance Building,
            88 Connaught Road West,
            Hong Kong

For consideration and, if thought fit, passing the following special resolution :-

REMOVAL OF DIRECTOR

To remove Mr GOLDIE John Phillips as Director of the Company with immediate effect.

By order of the board

For and on behalf of

Grandtag Financial Consultancy & Insurance Brokers Limited

(signed)
J. Leung
Director

Dated :  9 DEC 2005”

28.  Mr Goldie’s originating summons followed and so the various orders were made, in terms I have already set out at the beginning of this judgment.

Grandtag’s Response

29.  By its application before me Grandtag asserts that Mr Goldie failed through his evidence and counsel to bring to the Judge’s attention material facts and considerations; that the proceedings being ex parte denied it the opportunity to be heard; that the hearing was an abuse of the process of the court.

The Applicable Principles

30.  First and foremost is the cornerstone premise that before a court reaches any decision in a conflict between litigants both sides should have the opportunity to propound their arguments.  Only in the most urgent of cases should an order be made ex parte.  And in those exceptional cases where urgency is the watchword the order made should be provisional, giving the judge the opportunity to revisit the issues in the light of further evidence and argument provided by the opposing party.  It is therefore entirely contrary to justice that a party should be subjected to a permanent injunction brought on an ex parte basis.

31.  It follows that in those exceptional circumstances, it is incumbent on the applicant to put forward all material and relevant facts to assist the judge to undertake the necessary balancing exercise as to whether to grant, decline or defer the application.

32.  In the case of Kilgour v Mauro, unreported, 20 April 2000, the British Columbia Court of Appeal stated :

“There is clearly no jurisdiction in any judge of this court to grant a permanent injunction or an injunction indefinite in time on application by one party alone.  The maxim “Audi alteram partem” is one of the cornerstones of our court system.  This great principle that the other side of the coin should be presented to the court before it reaches any decision is crucial to the image that our courts hope to project in the community.  In fact, the very image of the scales of justice calls for reciprocal input in which two parties are invited to make their contribution to the whole process.  It is only in the most urgent circumstances that the courts will listen to only one side of the conflict and then it is clearly spelled out that the party moving to secure this kind of relief must disclose everything that it knows about the case including what might be considered as the defendant’s point of view …”

33.  In WEA Records Ltd v Visions Channel 4 Ltd [1983] 1 WLR 721, Sir John Donaldson MR said :

“By its nature, an ex parte order is essentially a provisional order made by the judge on the basis of evidence and submissions emanating from one side only and there is therefore no basis for making a definitive order and accordingly when the judge reviews his provisional order in the light of the evidence and argument adduced by the opposite party, he is not hearing an appeal from himself and is in no way inhibited from discharging or varying his original order.”

34.  In Taylor v Burgess [2002] Fam. LR 167 Barrett J said, in a case in which injunctive relief was sought ex parte, in probate, against a person referred to by him as the mother :

“The mother has not been represented or heard on the proposition that an injunction should issue against her, although counsel for the plaintiff has made submissions on that matter.  The court is thus asked to grant injunctive relief against the mother ex parte.

I am not prepared to grant an injunction in those circumstances.  It is virtually unthinkable that a person should be subjected to a permanent injunction on an ex parte basis.”

35.  Thomas Bingham MR held in TRP Limited v Thorley, unreported 13 July 1993 :

“[I]t is on the face of it plainly contrary to the principles of natural justice that any judicial order adversely affecting a party’s interests should be made against him without his being given a reasonable opportunity of being heard.  That is the simple overriding rule on which our system of justice depends.  The rule is not, however, absolute and unqualified.  Derogations are permitted in certain very limited and exceptional circumstances, the most obvious of these so far as the granting of injunctions is concerned being where the situation is one of such extreme urgency that there is literally no time to warn the defendant of what is proposed or where the purpose of the injunction will or may well be frustrated if the defendant is informed of what is proposed or where the defendant simply cannot be found.  The exceptional nature of the circumstances must, however, be stressed.  They are the exception and not the norm.  Even when time does not permit application on full notice it is highly desirable to inform the other party that the application is to be made ex parte so that he can if he wishes attend and make such representations as he wishes.”

36.  Finally, I reproduce a passage from Gee’s Commercial Injunctions, 5^th edition at 9.003, where the author deals with ex parte applications :

         “A thorough check should be made to ensure that all defences actually raised by the defendant are identified and fairly summarised in the affidavit.

         Furthermore, on the hearing of the without notice application it is the duty of counsel to ensure that defences and evidence in support of them are specifically drawn to the attention of the judge.  Merely mentioning the existence of such material without showing it to the judge may in itself be misleading, or give the case a different flavour.  Counsel has a personal duty to the court to ensure that the judge sees all the relevant material.

         It is usual for a skeleton argument to be used on an application of any complexity.  If a skeleton argument is used, it will be one of the primary documents used by the judge in hearing the application and it is very important that it is an entirely fair document.  It must not, by failing to mention matters, divert the judge’s attention away from material which he should have in mind if he is to have a fair view of the case.

         The applicant must identify any defences, which, although not yet taken, would have been available to be taken by the defendant had he been present at the application, …

         This is simply an aspect of the applicant’s duty to give a fair account of the case for and against the defendant, identifying the crucial points for and against the granting of the application.”

Ex parte or Not?

37.  Mr Chan, who represented the applicant before me, submitted that the order was not made ex parte.  He said the letter of 28 and 30 December gave notice that there would be an action because of the company’s failure to comply.  And there was notice on the day of the hearing, by telephone to the company’s managing director, and service which preceded the hearing. 

38.  I do not accept there was notice; at least not notice having any practical value. 

39.  A threat before action is not notice of the action.  And the telephone calls and service were far too late to give Grandtag the opportunity to engage its lawyers and attend.

40.  The hearing was ex parte.

41.  Was there a need to go before a judge ex parte?

42.  Was there material non-disclosure?

43.  I come to these matters next.

Notice of Meetings

44.  Central to Mr Goldie’s claim for injunctions were his complaints that the notices of the meetings held on 5 December and to be held on 7 January were irregular.

45.  That of 5 December was a directors’ meeting, called for the purpose of considering for approval the transfers of shares.

46.  In his supporting affidavit, Mr Goldie does not explain why notice of this was irregular, save that his request for a meeting by telephone conference was apparently ignored.

47.  Mr Chan, who also represented him at the ex parte hearing, submitted in writing that :

“There was a lack of formal notice, since it was not sent by post and not communicated by cable.  In fact the putative notice was only sent by email.  In that regard the meeting was improperly convened and any resolutions passed therein should be prevented from coming into effect until a properly convened meeting can take place.”

48.  Reference to notice by cable is to Article 16 which states in part :

“Where any notice is required by these Articles by Table A by the Ordinance (the Companies Ordinance) or otherwise to be given to any director or member of the company shall be valid if given by cable …”

49.  What was not put before the Judge, at least not directly, was Article 100, Table A which states, in part :

“… it shall not be necessary to give notice of a meeting of directors to any director for the time being absent from Hong Kong.”

50.  Thus it is that the company acted in excess of its obligations in notifying Mr Goldie of the precise details of the meeting.

51.  The injunction flowing from the allegation of irregularity should not have been made, and arguably would not have had the Judge been referred specifically to this Article.

52.  The meeting timed for 7 January was an EGM, and as the notice reveals, the resolution for removal of a director was required to be, as it was, a special resolution.

53.  Mr Goldie deposes that he received the notice; he complains that service of it by email was irregular.  This was repeated in a submission by Mr Chan to the Judge :

“The applicant was only informed by email of the convening of the EGM.  Such notice was not in compliance with formal requirements under the Articles, Table A or the Companies Ordinance.”

54.  Was there irregularity?

55.  First, Article 16 does not apply, for it states it is not applicable where the meeting to be convened is as here a special resolution.  The relevant articles are Articles 132 and 135, Table A.

56.  These state in part :

“Notice

132.    A notice may be given by the company to any member either personally or by sending it by post to him or to his registered address, or (if he has no registered address within Hong Kong) to the address, if any, within Hong Kong supplied by him to the company for the giving of notice to him.  Where a notice is sent by post, service of the notice shall be deemed to be effected by properly addressing, prepaying, and posting a letter containing the notice, and to have been effected in the case of a notice of a meeting at the expiration of 48 hours after the letter containing the same is posted, and in any other case at the time at which the letter would be delivered in the ordinary course of post.

…

135.    Notice of every general meeting shall be given in any manner hereinbefore authorized to —

(a)     every member except those members who (having no registered address within Hong Kong) have not supplied to the company an address within Hong Kong for the giving of notices to them; …”

57.  There being no express reference to service by email, the question to be answered is whether any other form of service is irregular.

58.  The matter was considered by MacKinnon LJ in Sharpley v Manby [1942] 1 KB 217 when dealing with the issue of proper notice under section 53 of theAgricultural Holdings Act 1923.  He said at p. 221 :

“‘… s. 53 of the Act … does not require any ceremonial.  It provides that a notice may be served on the person to whom it is to be given either personally, or by leaving it for him at his last known place of abode.  It adds, as an alternative, that the person who has to serve the notice may do so by sending it through the post in a registered letter.  If he did that, no doubt, he would get the additional advantage of being able easily to prove that he had served the notice, by producing the postal receipt, but he can serve the notice personally or by leaving it at the tenant’s last known place of abode.  It seems to me impossible to say that under that section, if you use the post, you can only do so by the medium of a registered letter, and that, if you use the ordinary post, and the letter is delivered to and received by the person to whom the notice is to be given, you have not complied with the requirement of the Act.’

In Stylo Shoes Ltd. v. Price Tailors Ltd. [1960] Ch. 396, Wynn-Parry J., in construing s. 23(1) of the Landlord and Tenant Act 1927, held at p. 405 :

‘I feel constrained to construe section 23(1) as being permissive so far as the mode of service is concerned … when the subsection goes on to deal with service the permissive verb ‘may’ is used … I can see no canon of construction which would entitle me to qualify the nature of the verb ‘may’ by anything that has gone before in the subsection.  It follows that, although there are certain modes set out in the subsection, they are not to be regarded as being exhaustive.’”

59.  An analogy can be drawn with the mode of service of proceedings :

“In Hastie & Jenkinson v. McMahon [1990] 1 WLR 1575, the English Court of Appeal, in construing R.S.C, O. 65, r. 5(1) (cf. R.H.C. O. 65, r. 5(1)), likewise refused to hold that the modes of service specified therein are exhaustive, and held that service by fax was good service in the circumstances of that case.  Woolf L.J. (at 1579) held that :

‘The purpose of serving a document is to ensure that its contents are available to the recipient and whether the document is served in the conventional way or by fax the result is exactly the same …

…

What is required is that a legible copy of the document should be in the possession of the party to be served.  This fax achieves.’

‘The purpose of Ord. 65, r. 5 is not to restrict methods of service but to assist the parties to achieve service and if necessary to prove that that service has taken place in the specified circumstances.  If … service can be proved to have taken place apart from reliance on the rule, then there is no need to make use of the rule.  If, however, unlike this case there is no admission or other evidence of receipt of the document, recourse to the rule may be necessary.’”

60.  In the same case Glidewell LJ said at p. 1585 :

“In my view Sharpley v. Manby is authority, binding on us, for the proposition that if a document is served by a method not expressly provided for by the rules, but it is nevertheless proved that the document was delivered to and received bythe person for whom it was intended (in time where that is material), good service has been effected.  To this proposition the Rules of the Supreme Court add the provisions of Ord. 65, r. 5(1), the effect of which is that, if a document has been served by one of the methods set out in the rule, in the absence of any other evidence, there has been good service.  If, however, it be proved that the document has not been received, the presumption derived from the rule that there has been good service can be rebutted.

I emphasise that if a document is served by a means for which neither the rule nor statute provides, there will only be good service if it be proved that the document, in a complete and legible state, has indeed been received by the intended recipient.”

61.  Applying these propositions it seems quite apparent that there was no irregularity of service.  Mr Goldie received, and received timeously, the notice, which set out precisely the matter to be considered.

62.  Mr Chan presumably did not research the law on this crucial feature; certainly he did not take the Judge to these authorities.  What he did do was submit :

“Additionally, since this is a matter which affects Applicant directly in the sense that the resolution calls for his removal as an officer he wishes to put together written representations (as is his right under s. 157B of the Companies Ordinance). He has not had a full and proper chance to do so because of the lack of formal notice.  In the circumstances, the court is asked to restrain the Company from holding the meeting until such time that he can properly be afforded an opportunity to know if he is being accused of any mala fides, for him to put together written representations and for a EGM to be properly convened.”

63.  It is hard to understand why Mr Goldie would have been in any better position to do that if he had received the notice by post.

64.  Apprised of the law, it seems most unlikely that the Judge would have put paid to the meeting of 7 January.

The Inspection Orders

65.  In his affidavit, Mr Goldie deposed that the fact that the office of the company was under renovation was not a valid excuse to deny him access to the books and records of the company.

66.  In his submission, Mr Chan  stated :

“… the court has jurisdiction to order inspection of the relevant books and accounts of the company … In the circumstances, there is no reason not to grant the applicant’s application to inspect the relevant books and documents as requested.”

67.  Quite so.  But whilst the correspondence I have referred to on the point was exhibited, in the supporting affidavit, it was not pointed out to the Judge that there were temporary, practical difficulties associated with the company’s management complying with the request.

68.  There was no denial or refusal.  In the letter from the company to Mr Goldie’s solicitors of 30 December it was written :

“We are well aware of your client as a director’s right to look at the books of the company generally.  We have never denied/declined your client such right.  The difficulty arises because the office premises are now undergoing large scale re-fitting.  Many of the books are packed up so that they are temporarily unavailable.  It is expected that the works will be completed in 3 weeks’ time.”

69.  There is nothing to indicate that the Judge was taken to this letter.  Had he done so he may well have heeded that an order would not make the practical difficulty go away.

70.  And there was nothing put before the Judge that would allow him to find that the company would renege on its promise to let Mr Goldie have the access he was asking for once order was restored.

Determination

71.  There was as I find material non-disclosure by Mr Goldie and his representatives at the hearing of 5 January; that is enough to grant the company the discharge it applies for.

72.  But further, there was no reason demonstrated why it was, effectively, made ex parte.  The one reason put forward was urgency.  The need for speed was that the EGM was scheduled for two days after the summons was filed.  But it could have been filed back in early December.  And there was no explanation given as to why the orders were asked for as, effectively, final orders; hence, an abuse of process.

73.  The company’s application is granted; the orders of 5 January 2006 are discharged.

74.  The costs order is nisi.  This demonstrates, without the benefit of argument, a preliminary view on the manner in which these proceedings were conducted.  Costs are to Grandtag, taxed on a common fund basis.