STEF KRAUSS v. BRIGHT DAY LTD AND ANOTHER

DCCJ 1046/2022

[2023] HKDC 1347

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1046 OF 2022

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BETWEEN

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DECISION

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1.  This is the defendants’ appeal from the Order of Master Doris Li dated 13 March 2023, ordering in terms of the plaintiff’s Summons dated 5 August 2022 that:

(1) summary judgment be entered in favour of the plaintiff against the 1^st and 2^nd defendants jointly and severally for the sum of HK$510,000 with interest; and

(2) the 1^st defendant’s counterclaim contained in the Defence and Counterclaim dated 7 June 2022 be struck out on the grounds that it disclosed no reasonable cause of action and/or constituted an abuse of process.

2.  The appeal will be dealt with by way of a rehearing de novo.

3.  The plaintiff is represented by Mr Leung of counsel. The 1^st and 2^nd defendants act in person and are represented by their directors Mr Ku and Mr Sze.

BACKGROUND

4.  The plaintiff Mr Krauss is a European foreigner and a businessman living in Hong Kong.

5.  The 1^st defendant is a limited company registered in Hong Kong. It owns a vessel named “Cranchi 43” (Certificate of Ownership Number: 140062; Class IV) (“the Vessel”).

6.  The 2^nd defendant is also a limited company registered in Hong Kong. It provides agency services for the purchase and sale of pleasure vessels.

7.  By a sale and purchase agreement dated 7 May 2021 (“the Agreement”), it was agreed amongst the plaintiff (as purchaser), the 1^st defendant (as vendor) and the 2^nd defendant (as agent) for the following terms:

(1) The plaintiff agreed to purchase “ONE-FIFTH (1/5) OF ownership of the Vessel” from the 1^st defendant at the purchase price of HK $500,000;

(2) The Vessel was pre-owned and would be sold in “as-is” condition. The 1^st defendant agreed to repair and upkeep some of the equipment of the vessel (e.g. the wine fridge, the dishwasher, and some roof lightings, etc) within three months upon the signing of the Agreement;

(3) In respect of the payment of the purchase price, HK$450,000 would be paid upfront, and the remaining HK$50,000 would be paid to the 2^nd defendant as a stakeholder to be held in escrow and refunded to the plaintiff if the 1^st defendant ever failed to complete the above-mentioned repair works within the stipulated time;

(4) The plaintiff would pay the 2^nd defendant HK$10,000 as agency fee; and

(5) The said one-fifth of ownership of the Vessel should be transferred within 7 days from the date of the Agreement.

8.  After signing the Agreement, the plaintiff paid the total sum of HK$510,000 into the 2^nd defendant’s bank account.

9.  The 1^st defendant said it had allowed the plaintiff to use the Vessel from 8 May 2021, ie the day after the signing of the Agreement, and that the Vessel was to be shared with four other existing shareholders (each holding 20% shares) of the 1^st defendant company.

10.  This is how the dispute arose. In the Statement of Claim filed on 14 April 2022, the plaintiff alleged that the 1^st defendant had still failed to “transfer one-fifth of the ownership or interest in the Vessel” to the plaintiff and that, while the 1^st defendant had failed to complete the repair works of the Vessel within time, the 2^nd defendant had failed to refund the HK$50,000 stakeholder money to the plaintiff (SOC §§3, 4). The plaintiff insisted on a direct “transfer of ownership” in the Vessel instead of an indirect ownership by way of vesting of shares of the 1^st defendant company as proposed by the 1^st defendant (SOC §5). The plaintiff accepted the repudiation of the 1^st defendant and the 2^nd defendant and asked the defendants to return his payment of HK$510,000 (SOC §6).

11.  The plaintiff claims damages for the defendants’ failure to perform the Agreement and, further or in the alternative, restitution based on the total failure of consideration or performance and unjust enrichment.

12.  In its Defence and Counterclaim, the 1^st defendant denied it had failed to perform the Agreement. The 1^st defendant pleaded that it had prepared the Bought & Sold Notes and Instruments of Transfer in respect of the 20% shares in the 1^st defendant company for the plaintiff to sign, but the plaintiff did not come forward to sign or at all. The 1^st defendant averred that, in any event, it had reflected the transfer of the shares (ie the plaintiff’s ownership) in the Annual Return (Form NAR1) filed with the Companies Registry on 12 November 2021. The date of transfer was stated as of 24 June 2021. Regarding the repair works, the 1^st defendant did not admit any failure to complete and put the plaintiff to strict proof (D&CC §§6 & 7).

13.  The 1^st defendant further averred that the plaintiff had made substantial use of the Vessel ever since 8 May 2021 (D&CC §10).

14.  The 1^st defendant counterclaimed a sum of HK$182,881 for the plaintiff’s share of the general repair and maintenance costs, including the berthing service fees charged by the Aberdeen Marina Club (“AMC”) and the captain’s and boat boy’s salaries, for the period from 8 May 2021 (the date the plaintiff began to enjoy the Vessel) to 7 June 2022 (the date of the Defence and Counterclaim).

15.  The 2^nd defendant simply denied the plaintiff’s allegations and put the plaintiff to strict proof.

LEAVE TO APPEAL OUT OF TIME

16.  Neither the 1^st nor 2^nd defendant had attended the hearing before the learned Master on 13 March 2023. I find this strange because the defendants had filed their affirmation in opposition in October 2022 with the 1^st defendant even filing its skeleton submissions two weeks before the hearing.

17.  In this hearing, the defendants explained that their absence was due to a mismarking of the diary. They apologized for any inconvenience caused.

18.  I accept the defendants’ explanation. I also find that the delay caused by the defendants would not cause prejudice to the plaintiff as they had filed their summonses for the application to set aside the Order immediately upon receiving the service of the Order on 27 March 2023. Had they not gone into the wrong regime in taking out the summonses and been dismissed, their Notice of Appeal would have been filed in time.

19.  In the premises, I grant retrospective leave for the defendants to file their Notices of Appeal, both dated 16 April 2023.

SUMMARY JUDGMENT APPLICATION

20.  In Time Rich 08 Limited v DBE (HK) Limited & Others [2018] HKCA 404, at para 5.2, the Court of Appeal held that:

“As this Court had said in summary judgment applications, in deciding whether a plaintiff is entitled to summary judgment the relevant test is whether the defendant has raised credible triable issues. If there are, the matter should go to trial. If not, judgment should be entered against the defendants. In considering whether there are triable issues, the Court will not take the defence on its face value but test it against the evidence disclosed in the affidavit including matters such as contemporaneous documents, whether the alleged defence is inconsistent with the defence previously put forward or whether the defence is only recently raised despite opportunity being given to the defendant to respond earlier. The Court will also consider the inherent probability of the defence but what the Court should not do is to conduct a mini-trial on complicated factual issues: Paul Y Management Ltd v Eternal Unity Development Ltd (CACV 16/2008).”

21.  Therefore, this court would examine whether the defendants have raised any credible triable issues in this action.

Plaintiff’s submissions

22.  Mr Leung submitted that it was a clear breach of the Agreement on the part of the 1^st defendant as the 1^st defendant had failed to perform the contract in transferring “one-fifth of the ownership/interest in the Vessel” to the plaintiff.

23.  The plaintiff’s arguments are two-fold:

(1) The Agreement was for the transfer of ownership/interest in the Vessel, not a transfer of shares in the 1^st defendant company; and

(2) More importantly (according to the plaintiff’s counsel), a company (the 1^st defendant) cannot enter into an agreement to sell its own shares. The seller of the shares in the company must be the underlying shareholders. Therefore, the 1^st defendant’s defence that the Agreement was for the transfer of shares in the company has no basis.

24.  The plaintiff says that, alternatively, the plaintiff is entitled to recover from both defendants based on unjust enrichment.

Defendants’ submissions

25.  The 1^st defendant contends that it was at all material times ready and willing to perform the Agreement and that the selling shareholders (ie three of the existing shareholders) of the 1^st defendant company had already signed the Bought & Sold Notes and Instruments of Transfer for a total of 20 shares (ie 20% of the shareholdings in the company) to be transferred to the plaintiff, and it was the plaintiff who failed to come to sign the documents.

26.  In support of its contention, the 1^st defendant submitted as follows:

(1) It was understood between the parties, and it was the common practice in the pleasure vessel or yacht community that a transfer of ownership would be made by transferring the shares of the holding company. Mr Ku said that this was particularly the case where only partial ownership of a second-hand vessel was transferred, where several people wished to join together to share a vessel. He said, for example, in the present case, the Vessel is berthed at AMC, and it is well known that it has only a very limited number of berths available, and hence, a long queue for a new berth. As the berth space is registered with the company’s name (ie the 1^st defendant’s name), any change in the registered name of the Vessel would result in the Vessel no longer being able to berth at the same marina;

(2) The 1^st defendant had produced and exhibited (by way of affirmation dated 31 October 2022) the relevant Bought & Sold Notes and Instruments of Transfer (all signed only by the selling shareholders), the 1^st defendant’s Annual Return (Form NAR1) of the year of 2021 and 2022, and the monthly schedules (showing the dates allotted to each shareholder for sharing the Vessel) as contemporaneous documents in support;

(3) The learned Master failed to ask the most important question: whether the plaintiff had used the Vessel? Mr Ku went on to ask rhetorically that if the 1/5 ownership of the Vessel had not been transferred to the plaintiff, on what basis was the plaintiff entitled to use and enjoy the Vessel from May to December 2021, the period during which the Vessel was substantially used by the plaintiff (or by his friend or partner Mr Mark Oliver Schloesser). In this connection, the 1^st defendant referred to the monthly schedules to show that the plaintiff (and Mr Schloesser) had the substantial use and enjoyment of the Vessel for approximately five times a month, that is, a total of at least 28 or 30 times from May to October 2021, and time slots have been continuously assigned to the plaintiff even up to the present; and

(4) It was only when and after Mr Schleosser had returned to Europe (Belgium) and left Hong Kong for good in late October 2021, that the plaintiff began to seek a rescission of the Agreement or instead, to propose a rental fee of HK$10,000 a month for the past usage of the Vessel (D&CC §8; Aff §5). Mr Ku said that the plaintiff had never asked for a registration of ownership to the Marine Department and that the plaintiff’s request for such registration was only made at the commencement of these proceedings. Mr Ku said that if it were the plaintiff’s case, he ought to have requested it within seven days as per the terms of the Agreement but should not have started enjoying the Vessel, until he had “lacked the enthusiasm” after using the the Vessel for half a year.

27.  The 2^nd defendant’s representative Mr Sze arrived at the court an hour late. He basically adopted the 1^st defendant’s submissions.

28.  Having considered both sides’ submissions, I agree with the 1^st defendant (and the 2^nd defendant) and find against the plaintiff. Here are my reasons.

Failure to perform the Agreement

29.  There are several special features in the present case that justify the court looking at the context between the parties in order to understand the meaning of the terms of the Agreement. Because of those particularities, I would have to say that this is not a case for summary judgment.

30.  First of all, the parties have provided two different views on how to interpret the term “one-fifth (1/5) of the ownership of the Vessel” in the body of the Agreement. It is the plaintiff’s stance that the said term denotes a direct registration of the plaintiff’s name as one of the registered owners of the Vessel, whereas the 1^st defendant contends that the said term is wide enough to cover an indirect transfer of ownership of the Vessel by way of transferring the shares in the holding company.

31.  I consider that it would be of assistance to refer to Clause 5 of the Agreement:

“5. Transfer of Ownership

Both the Vendor and the Purchaser agree to sign all the documents necessary to transfer ONE-FIFTH (1/5) OF ownership of the Vessel from the Vendor onto the name of the Purchaser within seven (7) working days from the date of signing this Agreement. The Purchaser shall be liable for all costs relating to the registration of the Vessel for adding his name and any other costs involved.” (Emphasis added)

32.  It seems to me that the term “to transfer one-fifth (1/5) of ownership of the Vessel from the Vendor onto the name of the Purchaser” is difficult to comprehend. But the 2^nd sentence in that clause seems to point in the plaintiff’s favour. It mentions “the registration of the Vessel for adding his name,” which clearly refers to a direct registration of the Vessel, not the shares.

33.  However, if the plaintiff’s interpretation is correct, it cannot be reconciled with the facts that:

(1) the plaintiff appears to have accepted the goods (the Vessel) or affirmed the contract. I noted that the plaintiff has never addressed the issue of whether the plaintiff had used the Vessel. There is nothing in the pleadings or in the plaintiff’s affirmation, nor were any submissions made at the hearing before the learned Master. When questioned by this court at this hearing, the plaintiff’s counsel simply replied that the issue was not relevant. In these circumstances, I accept the 1^st defendant’s defence that the plaintiff was a substantial user of the Vessel as one of the co-owners of the Vessel; and

(2) the plaintiff had never made any request or demand to the 1^st defendant to register his name on the Vessel, ie to add his name to the Certificate of Ownership of the Vessel. Instead, since signing the contract and paying the purchase price, he has continued to use and enjoy the Vessel as a co-owner. He made no complaint when the defendants asked him to come to execute the documents for the transfer of shares, except to mention the 1^st defendant’s letter dated 22 January 2022. I also noted that there were no pleaded facts about the plaintiff had ever made any request or demand for the registration of the Vessel in the Statement of Claim (the repeated requests and demands related only to seeking a refund of the payment). As such, I find that the plaintiff’s request for registration of the Vessel was only made at the commencement of the proceedings.

34.  On the other hand, the 1^st defendant’s assertion that transfer of ownership by way of transfer of shares might be acceptable if that was what the parties genuinely agreed, bearing in mind the restriction of name change for the berth at AMC and the plaintiff’s frequent use and enjoyment of the Vessel. I do not think it is necessary to adduce evidence of the shortage of berth space at AMC. The fact that any changes in the registered name would cause inconvenience to the parties is a matter of common knowledge.

35.  Having considered all the factual circumstances of the case before the court at this summary stage, it appears that the plaintiff has acted as an owner or co-owner of the Vessel ever since the Agreement was signed, using and enjoying the Vessel accordingly. Therefore, the discussion regarding of whether the parties should have proceeded to execute documents for direct registration of ownership or transfer of shares of the holding company is perhaps a red herring. The Agreement provides for a sale and purchase of 1/5 ownership of the vessel, and the current issue before the court is whether the 1^st defendant has failed to perform the Agreement. It is evident that the plaintiff has been using and enjoying the Vessel as an owner, just pending the completion of the formality of documentation. In my view, that constitutes part performance of the Agreement and the material facts substantiating such performance had been pleaded by the 1^st defendant.

36.  Therefore, insofar as the summary judgment application is concerned, I find that there is a credible triable issue on whether the Agreement has been partially or substantially performed.

37.  The second point I would like to address is the impossibility of performance.

38.  During the hearing, I asked the plaintiff’s counsel a question about transferring the 1/5 entitlement. Both parties appeared to agree to the transfer of 1/5 ownership, but it remains unclear how to effect the transfer if not by way of transferring the shares of the holding company.

39.  Mr Leung answered that he was not sure if a vessel could be registered with the Marine Department with more than one person as joint owners of the vessel, but he was very sure that it was not possible to do so for a vehicle. He said that if impossibility or mistake was the 1^st defendant's case, it had to be pleaded. He submitted that, given that there is no evidence to suggest this was the case and the learned Master had found that the 1^st defendant had failed to perform, the court needs not to consider this question.

40.  With respect, I am not satisfied with the plaintiff’s answer. It is trite that in a summary judgment application, it is for the plaintiff first to demonstrate a prima facie sustainable case (Ju Yan Di Emperory Genesisy v Yau Wai Han [2015] 1 HKLRD 822 (CA)). I also disagreed that it was for the 1^st defendant to plead impossibility or mistake or to provide evidence to that effect as it was never the 1^st defendant’s case for a direct registration with 1/5 ownership with the Marine Department. Rather, it concerned only the plaintiff.

41.  In fact, my concern would go even one step further. Even if it is permissible to register joint owners for a vessel, I have great reservations as to whether, in law or in practice, the Director of Marine Department would allow registration of joint ownerships in 4/5 and 1/5 share as if in tenants in common for real property scenario, for a vessel. Seemingly, this may raise issues of liabilities and insurance for the ship owners as the vessel is a movable property and is going to travel in the Hong Kong waters.

42.  Further, on my own research, it does not occur to me that there is any mechanism under the Statutes to allow such 1/5 ownership of a vessel to become registered. I will leave this issue to be determined at trial after receiving further evidence.

43.  As to the plaintiff’s submission that the 1^st defendant cannot enter into an agreement to sell its own shares, I am of the view that this argument cannot advance the plaintiff’s case any further. It merely leads to court back to his argument on the transfer of ownership/interest in the Vessel, not a transfer of shares in the 1st defendant company.

44.  By reason of the aforesaid, I find that the plaintiff has not made out a prima facie case under this head of claim. The court would not give summary judgment or any judgment for an agreement that is not capable of being performed.

45.  I believe this covered the 2^nd defendant’s position as well.

Restitution and Counter-restitution

46.  I now come to consider the plaintiff’s relief for restitution based on total failure of consideration/performance and/or unjust enrichment.

47.  The plaintiff’s case is that, if for any reason the 1^st and 2^nd defendants are not bound by the terms of the Agreement and they have failed to meet their obligations, the plaintiff would ask for a return of the money advanced, namely a total of HK$510,000 paid to the defendants. Otherwise, the defendants would have been unjustly enriched.

48.  However, it is the 1^st defendant’s pleaded case that after having been made a 1/5 co-owner of the Vessel (pending the plaintiff’s execution of the required documentation), the plaintiff enjoyed and used the Vessel, incurring outstanding repair and maintenance costs of HK$182,881 that the plaintiff owed to the 1^st defendant. Mr Ku, on behalf of the 1^st defendant, argued that if the plaintiff receives a refund for the Vessel after a prolonged period of use without payment for maintenance or berth fees or captain fees (only paying for the fuel), the plaintiff would be unjustly enriched.

49.  The 2^nd defendant simply denies its liability.

50.  What the 1^st defendant was trying to say is that it has raised a defence of counter-restitution to the plaintiff’s claim. Equity is to produce a just result between the parties.

51.  In Chitty on Contracts, 34th Ed (2021), at para 32-216, the learned authors explained the principle of counter-restitution as follows:

“Where the claimant has received a benefit from the defendant in circumstances where that benefit is closely connected to the benefit which the claimant provided to the defendant, the claimant must give credit to the defendant for that benefit. This principle of counter-restitution has been recognised as a defence to a claim in unjust enrichment. … Various rationales for this defence have been recognised, including that the receipt of the benefit by the claimant reduces or eliminates the defendant’s enrichment; the receipt of that benefit qualifies the injustice of the defendant’s receipt; the defence incorporates a cross-claim by the defendant against the claimant; or the application of the defence is a condition of the claimant obtaining restitution.”

52.  Whilst the Defence and Counterclaim did not employ the legal term of "counter-restitution", I find that the 1^st defendant has adequately pleaded the material facts which constitute such defence. Specifically, (1) the plaintiff's receipt of the benefits (namely, the substantial use of the Vessel) would result in a reduction of the 1^st defendant's enrichment and would thereby qualify the unjust nature of the 1^st defendant's receipt. (2) The 1^st defendant's defence has included a cross-claim (i.e. the claim for repair and maintenance) against the plaintiff. (3) Lastly, it is important to note that the benefit received and the benefit provided are closely linked in this current case.

53.  In the premsies, I find that the 1^st defendant has show a credible defence of counter-restitution.

54.  As for the plaintiff’s claim against the 2^nd defendant, there is no basis to suggest that the 2^nd defendant had been enriched with the HK$50,000 escrow money or the HK$10,000 agency fee. It is not disputable that the escrow money received by the 2^nd defendant was a ministerial receipt. In any event, the plaintiff’s claim for restitution against the 2^nd defendant would depend on whether the plaintiff could have succeeded in proving the 1^st defendant was in breach of the Agreement which rendered the agency service wasted.

55.  In such circumstances, I do not find that the plaintiff is entitled to judgment at this stage. The issues of restitution and counter-restitution between the plaintiff and the 1^st defendant will have to be resolved at trial.

Joint and several liabilities

56.  For completeness, I shall mention that the Order made by the learned Master for joint and several liabilities against the 1^st and 2^nd defendants for the whole sum of HK$510,000 may be flawed for the following reasons.

57.  In my view, although the Agreement was a tri-parties agreement, the obligations undertaken by the 1^st and 2^nd defendants are obviously different. It is clear that the purchase price of HK$500,000 was paid to the 1^st defendant for the transfer of 1/5 ownership of the Vessel to the plaintiff. The role of the 2^nd defendant was only to act as an agent to the Agreement, apparently for both the vendor (the 1^st defendant) and the purchaser (the plaintiff), in return for agency fee of HK$10,000. It did not act as a guarantor or a surety for the 1^st defendant’s performance.

58.  The 1^st defendant received the purchase price (at least HK$450,000 upfront, aside from the HK$50,000 stakeholder money) before releasing the Vessel to the plaintiff but the 2^nd defendant was paid only HK$10,000 agency fee given that the deposit of the purchase price HK$500,000 into the 2^nd defendant’s bank account was a mere ministerial receipt.

59.  Therefore, with respect, the Judgment entered by the learned Master ordering the 2^nd defendant be jointly and severally liable for the purchase price of HK$500,000 with the 1st defendant does not seem right to me.

60.  Similarly, I do not think the 1^st defendant should be held with a joint and several liability for the HK$10,000 agency fee. The plaintiff clearly made two distinct acceptances of repudiations against the 1^st and 2^nd defendants, respectively (para 6 of the SOC). I see no legal basis to hold the 1^st defendant and 2^nd defendant joint and severally liable to each other’s liability in the present case.

Conclusion

61.  I would allow the defendants’ appeal and set aside the learned Master’s Order for summary judgment and the Judgment entered for the sum of HK$510,000 with interest and costs on 13 March 2023. I would refuse to give summary judgment and grant the defendants unconditional leave to defend this action.

APPLICATION TO STRIKE OUT THE COUNTERCLAIM

62.  Mr Leung submitted that the Agreement does not impose on the plaintiff any obligations to pay for the maintenance costs as a co-owner of the Vessel as the 1^st defendant’s plea of express term and implied term under an oral agreement and the Agreement lacked particulars.

63.  The 1^st defendant averred that it had pleaded that the plaintiff was in breach of “the express and implied term of oral agreement and written Agreement and with the prior knowledge or consent of the plaintiff” that the plaintiff has an obligation to contribute to pay for the repair and maintenance costs of the Vessel. The 1^st defendant has submitted a comprehensive table of expenses, comprising the berth fees, and the captain’s and boat boy’s service fees etc, in respect of the said costs for the period from May 2021 to June 2022. Mr Ku said the Master had failed to consider why the plaintiff could use and enjoy the Vessel without contributing to pay the repair and maintenance costs.

64.  While it appears that the express terms or implied terms relied on by the 1^st defendant have not been clearly pleaded, they have sufficiently pleaded that their counterclaim is based on an oral agreement and the Agreement, and the prior knowledge and consent of the plaintiff, that the plaintiff, being a 1/5 owner of the vessel, has the obligation to contribute the future repair and maintenance costs.

65.  At the very least, there is no issue of dispute about the ownership of the vessel under the 1^st defendant’s counterclaim, as the 1^st defendant is all along the registered owner of the Vessel and the plaintiff had used the Vessel whether or not quo a joint owner. It just runs naturally that the plaintiff is responsible for paying his share of the maintenance (including 20% of the berth fees and captain fees) and the damages (100% repair costs) he caused to the machinery of the Vessel. Further, there is no evidence to suggest that the 1^st defendant would be engaged in any commercial activities that could produce adequate funds to cover the upkeep costs, besides using the vessel as a mere vehicle to hold the Vessel.

66.  I find that there is a valid cause of action in the 1^st defendant’s counterclaim. Although the pleading is not entirely satisfactory, I do not consider the 1^st defendant’s counterclaim to be fatal. Striking out is only for plain and obvious cases; I do not think this is the case here. I would set aside the striking-out order made by the learned Master.

DISPOSITION

67.  For the above reasons, the appeal is allowed with costs.

68.  I order that:

(1) Retrospective leave be granted for the 1^st and 2^nd defendants to file their Notices of Appeal out of time;

(2) The 1^st and 2^nd defendants’ appeals are allowed;

(3) Paragraph (1) of the Order of Master Doris Li dated 13 March 2022 for striking out the 1^st defendant’s counterclaim be set aside;

(4) Paragraph (2) of the Order of Master Doris Li dated 13 March 2022 for summary judgment, and the Judgment entered on 13 March 2022, both be set aside;

(5) Paragraph (4) of the Order of Master Doris Li dated 13 March 2022 for costs be set aside;

(6) Unconditional leave be granted to the 1^st and 2^nd defendants to defend this action;

(7) The plaintiff’s application pursuant to the plaintiff’s Summons dated 5 August 2022 to strike out the 1^st defendant’s counterclaim be dismissed;

(8) Costs order nisi that the costs below (ie costs of the plaintiff’s Summons dated 5 August 2022) be costs in the cause of the action, with certificate for counsel;

(9) Costs order nisi that costs of the 1^st and 2^nd defendants’ appeals be paid by the plaintiff to the 1^st and 2^nd defendants, to be taxed if not agreed; and

(10) The above costs order nisi shall become absolute in 14 days of this Order, if no application to vary the same was taken out by the parties before then.