MA PIK YEE v. HERUKA HAYAGRIVA MAHAKALA CHU

HCA 1412/2020

[2023] HKCFI 268

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1412 OF 2020

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DECISION

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THE APPLICATION

1.  This is the plaintiff’s application for summary judgment made by summons filed on 12 April 2022 (“the Summons”). 

THE PLAINTIFF’S CASE

2.  The plaintiff’s pleaded case may be summarised as follows.

3.  From around 2011 to 2020, the plaintiff was a member of a Buddhist sect (“the Sect”) and a disciple of the defendant.

4.  At all material times, the defendant held himself out as a “living Buddha” (活佛) and was the spiritual advisor (上師) of the plaintiff. He founded the Buddhist Dynamics Culture and Arts Foundation Limited (“the Foundation”).

5.  In 2010, the plaintiff was impregnated by her former boyfriend.  The plaintiff was depressed because her family and her former boyfriend, contrary to her wishes, wanted her to undergo an abortion.

6.  Through the introduction of her sister (“Jackie”), who was also a disciple of the defendant, the plaintiff sought spiritual guidance and advice from the defendant regarding her pregnancy.

7.  During the plaintiff’s first meeting with the defendant, the latter, inter alia:

(1)  told the plaintiff that he was a “living Buddha”, and that he could grant her blessings which would protect her and her unborn child;

(2)  convinced the plaintiff to purchase a Thangka painting (“the Painting”) which the defendant claimed to have personally blessed, and told the plaintiff that the Painting would cure her depression and safeguard her unborn child’s health.

8.  The plaintiff then agreed to purchase the Painting at $68,000.

9.  When the plaintiff was due to give birth, she was notified by her doctor that she was suffering from high blood pressure and that the unborn child’s heartbeat was slow. When the defendant heard such news, he instructed Jackie to convey to the plaintiff that she should keep him in mind while giving birth.  The plaintiff did so accordingly, and her son (“the Son”) was born healthy.  

10.  As a result, the plaintiff firmly believed that the defendant’s blessings given as a living Buddha were instrumental to the Son’s health.

11.  In around 2011, the plaintiff became the defendant’s disciple and the defendant became the plaintiff’s spiritual advisor. The plaintiff has reposed complete trust and confidence in the defendant.

12.  One of the teachings of the defendant was that his disciples should carry out the practice of “offering” (供養), that is, to give their earthly possessions to the defendant and/or offer him financial support in the form of gifts.

13.  On 20 September 2016, the plaintiff purchased a flat at The Bloomsway, Tuen Mun[1] (“the Property”) for around $6.2 million.  At that time, the Property was still under construction, which was subsequently completed in around March 2018.  The Property was then assigned to the plaintiff on 20 March 2018.

14.  Prior to the purchase of the Property, the plaintiff, in accordance with the defendant’s teachings of “offering”, offered to buy the defendant a flat in the same residential estate as the Property. The defendant rejected her offer at the time.

15.  The plaintiff initially told the defendant that she would like to purchase the Property in Jackie’s sole name so that she could enjoy a lower rate of ad valorem stamp duty (as Jackie did not hold any other property). However, upon the defendant’s advice, the plaintiff decided to purchase the Property under her own name, even though she would have to bear a high rate of ad valorem stamp duty.

16.  While the plaintiff originally planned to move into the Property with the Son, she was subsequently induced by the defendant by his undue influence to transfer the Property free of any encumbrance to him. As a result, the plaintiff had executed a number of documents under the following circumstances:

(1)  On 21 February 2017, the plaintiff took out an all-monies mortgage of $2 million (“the Mortgage”) on her property at Chelsea Heights, Tuen Mun (“the Chelsea Heights Property”), and she used the money obtained from the Mortgage to pay off the balance of the purchase price of the Property;

(2)  By a contract in writing dated 14 April 2018 made between the plaintiff as landlord and the defendant as tenant (“the Lease”), the plaintiff agreed to lease the Property to the defendant for a term of 63 years for $1 per month;

(3)  By a contract in writing dated 23 September 2019 made between the plaintiff as vendor and the defendant as purchaser, the plaintiff agreed to convey the Property to the defendant (“the SP Agreement”);

(4)  On 23 September 2019, the plaintiff executed a deed of assignment conveying the Property to the defendant (“the Assignment”).

17.  Despite the stated consideration of $6 million in both the SP Agreement and the Assignment, the parties agreed that the defendant did not have to pay, and the defendant in fact did not pay, the said consideration.

18.  Prior to the Assignment, the plaintiff had also made various payments to the defendant (as described below) in the total sum of $668,000 (“the Payments”) due to the undue influence of the defendant:

(1)  As mentioned above, the sum of $68,000 for the purchase of the Painting;

(2)  The sum of $300,000 which was paid by the plaintiff to the defendant as sponsorship towards a religious musical on around 27 October 2014 (“the Musical”);

(3)  The sum of $300,000 in total which the plaintiff paid the defendant on 24 June 2015 and 11 December 2015 for the renovation of the defendant’s quarters in Tai O.

19.  The plaintiff therefore claimed, inter alia, for the following reliefs in her Statement of Claim:

(1)  Declarations that the Lease, the SP Agreement and the Assignment ought to be set aside;

(2)  An order that the defendant do deliver up the Assignment to be cancelled forthwith;

(3)  An order that the defendant do re-convey the Property to the plaintiff;

(4)  Vacant possession of the Property;

(5)  An account of the dealings by the defendant with the Property and of the income received and payment of all sums found due;

(6)  The sum of $668,000; and

(7)  An account of the dealings by the defendant with the Payments and of the income received and payment of all sums found due.

20.  For the purpose of this application for summary judgment, the plaintiff only seeks the reliefs as summarised under items (1) – (4) above.

THE DEFENDANT’S DEFENCE

21.  The defendant’s pleaded case may be summarised as follows.

22.  In around 1994, unbeknown to the defendant, he was confidentially recognised by the then leader of the Jonang sect of Tibetan Buddhism in Sichuan as a “轉世活佛”, which is customarily referred to as “活佛” or “上師” in the Han nationality region of China.  The honorific title of the defendant is “阿旺‧袞噶丹增嘉措寧波車”. 

23.  His status as a “轉世活佛” was officially confirmed in writing by the then leader of the Jonang sect of Tibetan Buddhism in Sichuan in around June 2011.  After such an official confirmation, the defendant’s said status was first disclosed in Hong Kong through a publication of the Foundation, and since then the defendant started to attend activities organised by the Foundation in such a status.

24.  Since about the 1980s, the defendant has become acquainted with Jackie, and they have become close personal friends and business partners since about the 1990s.

25.  In the 2000s, through the introduction of Jackie, the plaintiff and her former husband shared their marital problems with the defendant. 

26.  Starting from around the end of 2010, the plaintiff (who initially was a personal friend and subsequently a very close personal friend of the defendant) frequently shared with the defendant the problems of herself and the Son.  However, at all material times, the plaintiff had never been a disciple of the defendant.

27.  In around December 2010, the plaintiff sought the personal opinion of the defendant on her pregnancy.  As the plaintiff did not know the defendant was a “轉世活佛”, she had addressed him by his first name in Chinese “祖賢”. The defendant denied that he had ever represented to the plaintiff that he was a “living Buddha”.

28.  From around 2011, the plaintiff and the Son had actively participated in the religious, cultural, artistic and/or charitable activities organised by the Foundation.

29.  Over the years, whenever the plaintiff sought the personal opinion of the defendant on her problems, the defendant had, as her close personal friend, wholeheartedly offered his personal opinion without charge, nor had he ever asked the plaintiff for any reward.

30.  In 2016, the plaintiff and Jackie had, on their own initiative and out of their own free will, repeatedly offered to make a gift to the defendant of a flat in The Bloomsway, in appreciation of all the help and assistance that the defendant had offered them and their families over the years.

31.  The defendant initially refused to accept the gift.

32.  In the conversations with the defendant, the plaintiff also represented to the defendant that she and Jackie would both be contributing to the mortgage instalments of the Property which would be purchased in the name of Jackie (who had never purchased any property) in order to save stamp duty.  Having regard to the personality of Jackie and also with a view to discouraging the plaintiff from making the proposed gift, the defendant told the plaintiff that if she really wanted to make a gift to him, she should only do so if she herself could afford it.  Further, she should not get Jackie involved, and the gifted flat should not be subject to any encumbrance.

33.  The plaintiff, out of her own free will, persisted with making the offer of the gift, and represented that she could afford it and that she would purchase the Property in her own name (despite having to pay stamp duty at a higher rate in such a case).

34.  The plaintiff also proposed that the Property would be formally transferred to the defendant after a lapse of 3 years from the date of her purchase in order to avoid the liability for special stamp duty.

35.  The defendant reluctantly accepted the plaintiff’s suggestion.  However, this was only because of, among other things, their “very close personal relationship”[2], and the defendant wanted to:

(1)  develop a closer relationship with the Son which might be beneficial to his upbringing;

(2)  assure the plaintiff and the Son that the defendant would be by their side to support them if they were to face any difficulties;

(3)  encourage Jackie to keep her promise to others.

36.  The defendant had never promoted to the plaintiff any “teachings” for “offering” to be made to him.  It is also specifically denied that the Property was purchased by the plaintiff as an “offering” to the defendant.

37.  When the construction of the Property was completed in around March 2018, the defendant expressed his reluctance in moving into the Property, and suggested that the plaintiff should move into the Property with the Son, and that the defendant would move into the Chelsea Heights Property.  However, the plaintiff refused to accept the defendant’s suggestion.  In order to show her determination and genuine intention of gifting the defendant the Property, the plaintiff, out of her own free will, prepared and signed the Lease.

38.  Under the terms of the Lease, the plaintiff was responsible to bear the stamp duty therefor.

39.  In around late 2018 to early 2019, the plaintiff was demanded by the Stamp Duty Office to pay a substantial amount of stamp duty in respect of the Lease.  In the hope of assisting the plaintiff in alleviating or avoiding the liability for such stamp duty, the defendant offered to the plaintiff to have the Lease cancelled.  As a result, a surrender agreement was signed by the parties on around 1 February 2019 for terminating the Lease. However, despite such an agreement, the Inland Revenue Department maintained the decision to charge the plaintiff stamp duty on the Lease in the sum of $361,875.  The defendant then offered to the plaintiff that he was prepared to bear half of the said amount.

40.  The plaintiff was represented by solicitors when she entered into the Mortgage, the Agreement and the Assignment, and therefore it is to be inferred that the plaintiff had obtained legal advice in relation thereto. 

41.  The defendant denied that the plaintiff was induced by any undue influence of the defendant when she executed any of the aforesaid documents (including the Lease).  The plaintiff did so out of her own free will.

42.  In relation to the Payments:

(1)  While it is admitted that the defendant had suggested Jackie that she might consider asking a Tibetan painter to paint a Thangka painting and asking temples for Buddhist prayer chanting for the protection of the plaintiff, and that he had assisted with the arrangement of the above, it is denied that there was any purchase of the Painting as alleged;

(2)  According to the records of the Foundation, the plaintiff had made donations to the Foundation in the total sum of $210,000 for the Musical, and had bought 21 tickets at about $3,780 for the performance. The donations and the purchase of tickets were made out of her own free will rather than as a result of any alleged undue influence of the defendant;

(3)  According to the records of the Foundation, the plaintiff had made donations to the Foundation in the total sum of $300,000 towards a project under which dilapidated premises in Tai O, which were donated by a third party to the Foundation for charitable use, were to be renovated so that the premises could be used by the Foundation for holding gatherings and events. Such donations were made by the plaintiff out of her own free will rather than as a result of any alleged undue influence of the defendant.

LEGAL PRINCIPLES

Summary judgment

43.  In Li Chuen Kwai v. Po Lam Construction Development Limited (HCA 2376/2013, unreported, 24 September 2014), it was held that:

“12. As far as the defendant’s defence is concerned:

(1) The defendant shoulders the burden to satisfy the court that he has a real or bona fide defence (ie that there are triable issues), or that there ought for some reason to be a trial of the plaintiff’s claim.

(2) However, a complete defence need not be shown. The defence set up need only show that there is a triable issue or question or that for some other reason there ought to be a trial; and leave to defend ought to be given unless there is clearly no defence in law and no possibility of a real defence on the question of fact.

(3) Although the mere assertion in an affidavit does not, ipso facto, provide leave to defend, the court will not embark upon a mini‑trial of the action on paper and leave to defend will be granted unless the defence raised is so incredible or so contradicted by contemporaneous documents or circumstances that it becomes clear that the defence is a sham.

(4) The test is not whether the defendant’s assertions are to be believed, rather it is whether those assertions are believable, ie capable of being believed. If so, the defendant must have leave to defend.

(5) Whether the defendant’s assertions are believable is a question that should be answered not by taking those assertions in isolation bur rather by taking them in the context of so much of the background as either undisputed or beyond reasonable dispute.”

44.  In Ju Yan Di Embroidery Genesisy v Yau Wai Han [2015] 1 HKLRD 822, 827, Cheung JA held that:

“14. It is well-established that the burden on the defendant in a summary judgment application is to show that he has a credible defence and he must condescend to give particulars of his defence. However, this does not mean that once the plaintiff invokes the application and irrespective of the strength of his case, the defendant bears all the burden of showing that there are triable issues in the case. This is because the starting point in a summary judgment application is that it should only be invoked when there is no defence to the claim. This means that the plaintiff must in the first place demonstrate that the defendant has indeed no defence. This requirement is further recognised in the procedural rules which mandate the plaintiff to state his belief in the verifying affidavit that there is no defence to the claim. This requirement must be kept in proper perspective when assessment is made of the strength of the application, otherwise there is a danger that the attention will be focused solely on what the defendant has said without consideration at the same time of the basic premise of the plaintiff’s claim or its inherent strength and weakness…”

45.  In Time Rich 08 Limited v DBE (HK) Limited & Others [2018] HKCA 404, it was held by the Court of Appeal that:

“…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)” (at paragraph 5.2)

Undue influence

46.  The way that this case was argued renders it necessary to understand the rationale and the law of “undue influence” properly.  I therefore consider it worthwhile to quote what Lord Bingham explained in the well-known case of Royal Bank of Scotland plc v Etridge (No.2) [2002] 2 AC 773 extensively as follows:

“6. The issues raised by these appeals make it necessary to go back to first principles. Undue influence is one of the grounds of relief developed by the courts of equity as a court of conscience. The objective is to ensure that the influence of one person over another is not abused. In everyday life people constantly seek to influence the decisions of others. They seek to persuade those with whom they are dealing to enter into transactions, whether great or small. The law has set limits to the means properly employable for this purpose. To this end the common law developed a principle of duress. Originally this was narrow in its scope, restricted to the more blatant forms of physical coercion, such as personal violence.

7. Here, as elsewhere in the law, equity supplemented the common law. Equity extended the reach of the law to other unacceptable forms of persuasion. The law will investigate the manner in which the intention to enter into the transaction was secured: ‘how the intention was produced’, in the oft repeated words of Lord Eldon LC, from as long ago as 1807 (Huguenin v Baseley 14 Ves 273, 300). If the intention was produced by an unacceptable means, the law will not permit the transaction to stand. The means used is regarded as an exercise of improper or ‘undue’ influence, and hence unacceptable, whenever the consent thus procured ought not fairly to be treated as the expression of a person’s free will. It is impossible to be more precise or definitive. The circumstances in which one person acquires influence over another, and the manner in which influence may be exercised, vary too widely to permit of any more specific criterion.

8. Equity identified broadly two forms of unacceptable conduct. The first comprises overt acts of improper pressure or coercion such as unlawful threats. Today there is much overlap with the principle of duress as this principle has subsequently developed. The second form arises out of a relationship between two persons where one has acquired over another a measure of influence, or ascendancy, of which the ascendant person then takes unfair advantage. An example from the 19th century, when much of this law developed, is a case where an impoverished father prevailed upon his inexperienced children to charge their reversionary interests under their parents’ marriage settlement with payment of his mortgage debts: see Bainbrigge v Browne (1881) 18 Ch D 188.

9. In cases of this latter nature the influence one person has over another provides scope for misuse without any specific overt acts of persuasion. The relationship between two individuals may be such that, without more, one of them is disposed to agree a course of action proposed by the other. Typically this occurs when one person places trust in another to look after his affairs and interests, and the latter betrays this trust by preferring his own interests. He abuses the influence he has acquired […]

10. The law has long recognised the need to prevent abuse of influence in these ‘relationship’ cases despite the absence of evidence of overt acts of persuasive conduct. The types of relationship, such as parent and child, in which this principle falls to be applied cannot be listed exhaustively. Relationships are infinitely various. Sir Guenter Treitel QC has rightly noted that the question is whether one party has reposed sufficient trust and confidence in the other, rather than whether the relationship between the parties belongs to a particular type: see Treitel, The Law of Contract, 10th ed (1999), pp 380-381 […]

11. Even this test is not comprehensive. The principle is not confined to cases of abuse of trust and confidence. It also includes, for instance, cases where a vulnerable person has been exploited. Indeed, there is no single touchstone for determining whether the principle is applicable. Several expressions have been used in an endeavour to encapsulate the essence: trust and confidence, reliance, dependence or vulnerability on the one hand and ascendancy, domination or control on the other. None of these descriptions is perfect. None is all embracing. Each has its proper place.

[…]

Burden of proof and presumptions

13. Whether a transaction was brought about by the exercise of undue influence is a question of fact. Here, as elsewhere, the general principle is that he who asserts a wrong has been committed must prove it. The burden of proving an allegation of undue influence rests upon the person who claims to have been wronged. This is the general rule. The evidence required to discharge the burden of proof depends on the nature of the alleged undue influence, the personality of the parties, their relationship, the extent to which the transaction cannot readily be accounted for by the ordinary motives of ordinary persons in that relationship, and all the circumstances of the case.

14. Proof that the complainant placed trust and confidence in the other party in relation to the management of the complainant’s financial affairs, coupled with a transaction which calls for explanation, will normally be sufficient, failing satisfactory evidence to the contrary, to discharge the burden of proof. On proof of these two matters the stage is set for the court to infer that, in the absence of a satisfactory explanation, the transaction can only have been procured by undue influence. In other words, proof of these two facts is prima facie evidence that the defendant abused the influence he acquired in the parties’ relationship. He preferred his own interests. He did not behave fairly to the other. So the evidential burden then shifts to him. It is for him to produce evidence to counter the inference which otherwise should be drawn.

15. Bainbrigge v Browne 18 Ch D 188, already mentioned, provides a good illustration of this commonplace type of forensic exercise. Fry J held, at p 196, that there was no direct evidence upon which he could rely as proving undue pressure by the father. But there existed circumstances ‘from which the court will infer pressure and undue influence’. None of the children were entirely emancipated from their father's control. None seemed conversant with business. These circumstances were such as to cast the burden of proof upon the father. He had made no attempt to discharge that burden. He did not appear in court at all. So the children’s claim succeeded. Again, more recently, in National Westminster Bank pic v Morgan [1985] AC 686, 707, Lord Scarman noted that a relationship of banker and customer may become one in which a banker acquires a dominating influence. If he does, and a manifestly disadvantageous transaction is proved, ‘there would then be room’ for a court to presume that it resulted from the exercise of undue influence.

16. Generations of equity lawyers have conventionally described this situation as one in which a presumption of undue influence arises. This use of the term ‘presumption’ is descriptive of a shift in the evidential onus on a question of fact. When a plaintiff succeeds by this route he does so because he has succeeded in establishing a case of undue influence. The court has drawn appropriate inferences of fact upon a balanced consideration of the whole of the evidence at the end of a trial in which the burden of proof rested upon the plaintiff. The use, in the course of the trial, of the forensic tool of a shift in the evidential burden of proof should not be permitted to obscure the overall position. These cases are the equitable counterpart of common law cases where the principle of res ipsa loquitur is invoked. There is a rebuttable evidential presumption of undue influence.

17. The availability of this forensic tool in cases founded on abuse of influence arising from the parties’ relationship has led to this type of case sometimes being labelled ‘presumed undue influence’. This is by way of contrast with cases involving actual pressure or the like, which are labelled ‘actual undue influence’: see Bank of Credit and Commerce International SA v Aboody [1990] 1 QB 923, 953, and Royal Bank of Scotland pic v Etridge (No 2) [1998] 4 All ER 705, 711-712, paras 5-7. This usage can be a little confusing. In many cases where a plaintiff has claimed that the defendant abused the influence he acquired in a relationship of trust and confidence the plaintiff has succeeded by recourse to the rebuttable evidential presumption. But this need not be so. Such a plaintiff may succeed even where this presumption is not available to him; for instance, where the impugned transaction was not one which called for an explanation.

18. The evidential presumption discussed above is to be distinguished sharply from a different form of presumption which arises in some cases. The law has adopted a sternly protective attitude towards certain types of relationship in which one party acquires influence over another who is vulnerable and dependent and where, moreover, substantial gifts by the influenced or vulnerable person are not normally to be expected. Examples of relationships within this special class are parent and child, guardian and ward, trustee and beneficiary, solicitor and client, and medical adviser and patient. In these cases the law presumes, irrebuttably, that one party had influence over the other. The complainant need not prove he actually reposed trust and confidence in the other party. It is sufficient for him to prove the existence of the type of relationship.

[…]

Independent advice

20. Proof that the complainant received advice from a third party before entering into the impugned transaction is one of the matters a court takes into account when weighing all the evidence. The weight, or importance, to be attached to such advice depends on all the circumstances. In the normal course, advice from a solicitor or other outside adviser can be expected to bring home to a complainant a proper understanding of what he or she is about to do. But a person may understand fully the implications of a proposed transaction, for instance, a substantial gift, and yet still be acting under the undue influence of another. Proof of outside advice does not, of itself, necessarily show that the subsequent completion of the transaction was free from the exercise of undue influence. Whether it will be proper to infer that outside advice had an emancipating effect, so that the transaction was not brought about by the exercise of undue influence, is a question of fact to be decided having regard to all the evidence in the case.

Manifest disadvantage

21. As already noted, there are two prerequisites to the evidential shift in the burden of proof from the complainant to the other party. First, that the complainant reposed trust and confidence in the other party, or the other party acquired ascendancy over the complainant. Second, that the transaction is not readily explicable by the relationship of the parties.

22. Lindley LJ summarised this second prerequisite in the leading authority of Allcard v Skinner 36 Ch D 145, where the donor parted with almost all her property. Lindley LJ pointed out that where a gift of a small amount is made to a person standing in a confidential relationship to the donor, some proof of the exercise of the influence of the donee must be given. The mere existence of the influence is not enough. He continued, at p 185 ‘But if the gift is so large as not to be reasonably accounted for on the ground of friendship, relationship, charity, or other ordinary motives on which ordinary men act, the burden is upon the donee to support the gift.’ […] (emphasis added)

47.  In the same authority, Lord Scott further explained:

“151. Undue influence cases have, traditionally, been regarded as falling into two classes, cases where undue influence must be affirmatively proved (Class 1) and cases where undue influence will be presumed (Class 2). The nature of the two classes was described by Slade LJ in Bank of Credit and Commerce International SA v Aboody [1990] 1 QB 923, 953:

‘Ever since the judgments of this court in Allcard v Skinner…clear distinction has been drawn between (1) those cases in which the court will uphold a plea of undue influence only if it is satisfied that such influence has been affirmatively proved on the evidence (commonly referred to as cases of ‘actual undue influence’…‘Class I’ cases); (2) those cases (commonly referred to as cases of ‘presumed undue influence’… ‘Class 2’ cases) in which the relationship between the parties will lead the court to presume that undue influence has been exerted unless evidence is adduced proving the contrary, e g by showing that the complaining party has had independent advice.’

152. This passage provides, if I may respectfully say so, an accurate summary description of the two classes. But, like most summaries, it requires some qualification.

153. First, the Class 2 presumption is an evidential rebuttable presumption. It shifts the onus from the party who is alleging undue influence to the party who is denying it. Second, the weight of the presumption will vary from case to case and will depend both on the particular nature of the relationship and on the particular nature of the impugned transaction. Third, the type and weight of evidence needed to rebut the presumption will obviously depend upon the weight of the presumption itself. In Allcard v Skinner (1887) 36 Ch D 145 the presumption was a very heavy one. Correspondingly strong evidence would have been needed to rebut it. Even independent legal advice would not necessarily have sufficed. Lindley LJ, at p 184, made clear his view that without legal independent advice the presumption could not have been rebutted but went on to doubt whether independent legal advice would have sufficed ‘unless there was also proof that she was free to act on the advice which might be given to her’. And in Inche Noriah v Shaik Allie Bin Omar [1929] AC 127 Lord Hailsham LC said, at p 135: ‘their Lordships are not prepared to accept the view that independent legal advice is the only way in which the presumption can be rebutted ...’

154. The onus will, of course, lie on the person alleging the undue influence to prove in the first instance sufficient facts to give rise to the presumption. The relationship relied on in support of the presumption will have to be proved.

[…]

157. In Bank of Credit and Commerce International SA v Aboody [1990] 1 QB 923 Slade LJ split the Class 2 cases into two subdivisions. He categorised, at p 953, the ‘well established categories of relationships, such as a religious superior and inferior and doctor and patient where the relationship as such will give rise to the presumption’ as Class 2A cases […]

158. The [Class 2] presumption arises where the combination of the relationship and the nature of the transaction justify, in the absence of any other evidence, a conclusion that the transaction was procured by the undue influence of the dominant party. Such a conclusion, reached on a balance of probabilities, is based upon inferences to be drawn from that combination. There are some relationships, generally of a fiduciary character, where, as a matter of policy, the law requires the dominant party to justify the righteousness of the transaction […]

[…]

219. The presumption of undue influence, whether in a category 2A case, or in a category 2B case, is a rebuttable evidential presumption. It is a presumption which arises if the nature of the relationship between two parties coupled with the nature of the transaction between them is such as justifies, in the absence of any other evidence, an inference that the transaction was procured by the undue influence of one party over the other. This evidential presumption shifts the onus to the dominant party and requires the dominant party, if he is to avoid a finding of undue influence, to adduce some sufficient additional evidence to rebut the presumption. In a case where there has been a full trial, however, the judge must decide on the totality of the evidence before the court whether or not the allegation of undue influence has been proved. In an appropriate case the presumption may carry the complainant home. But it makes no sense to find, on the one hand, that there was no undue influence but, on the other hand, that the presumption applies. If the presumption does, after all the evidence has been heard, still apply, then a finding of undue influence is justified. If, on the other hand, the judge, having heard the evidence, concludes that there was no undue influence, the presumption stands rebutted. A finding of actual undue influence and a finding that there is a presumption of undue influence are not alternatives to one another. The presumption is, I repeat, an evidential presumption. If it applies, and the evidence is not sufficient to rebut it, an allegation of undue influence succeeds.

220. As to manifest disadvantage, the expression is no more than shorthand for the proposition that the nature and ingredients of the impugned transaction are essential factors in deciding whether the evidential presumption has arisen and in determining the strength of that presumption. It is not a divining-rod by means of which the presence of undue influence in the procuring of a transaction can be identified. It is merely a description of a transaction which cannot be explained by reference to the ordinary motives by which people are accustomed to act.” (emphasis added)

48.  In Allcard v Skinner (1887) 36 Ch. D. 145, Lindley LJ stated that:

“These decisions may be divided into two classes—First, where the Court has been satisfied that the gift was the result of influence expressly used by the donee for the purpose; second, where the relations between the donor and donee have at or shortly before the execution of the gift been such as to raise a presumption that the donee had influence over the donor. In such a case the Court sets aside the voluntary gift, unless it is proved that in fact the gift was the spontaneous act of the donor acting under circumstances which enabled him to exercise an independent will and which justifies the Court in holding that the gift was the result of a free exercise of the donor’s will. The first class of cases may be considered as depending on the principle that no one shall be allowed to retain any benefit arising from his own fraud or wrongful act. In the second class of cases the Court interferes, not on the ground that any wrongful act has in fact been committed by the donee, but on the ground of public-policy, and to prevent the relations which existed between the parties and the influence arising therefrom being abused.” (at 171)

“[…] The undue influence which Courts of Equity endeavour to defeat is the undue influence of one person over another; not the influence of enthusiasm on the enthusiast who is carried away by it, unless indeed such enthusiasm is itself the result of external undue influence. But the influence of one mind over another is very subtle, and of all influences religious influence is the most dangerous and the most powerful, and to counteract it Courts of Equity have gone very far. They have not shrunk from setting aside gifts made to persons in a position to exercise undue influence over the donors, although there has been no proof of the actual exercise of such influence; and the Courts have done this on the avowed ground of the necessity of going this length in order to protect persons from the exercise of such influence under circumstances which render proof of it impossible. The Courts have required proof of its non-exercise, and, failing that proof, have set aside gifts otherwise unimpeachable […]” (at 183) (emphasis added)

THE ISSUES

49.  Given it is the plaintiff’s assertion that her case of undue influence is a “Class 2A” case, the issues which this Court has to decide herein are whether the defendant has raised any triable issue on the following questions:

(1)  Whether the nature of the relationship between the plaintiff and the defendant gives rise to a relationship under Class 2A as alleged;

(2)  Whether the transactions concerned call for an explanation;

(3)  In the event presumption of undue influence arises, whether such a presumption can be rebutted.

DISCUSSION 

50.  I will consider the identified issues one after another, bearing in mind that whether a transaction was brought about by undue influence is a question of fact.  Therefore, summary judgment should not be granted unless this Court is satisfied that there is no possibility of a real defence on the question.

Relationship between the parties

51.  The question here is whether the nature of the relationship between the parties gives rise to a relationship under Class 2A.

52.  It is the plaintiff’s case that she and the defendant had a “spiritual/religious leader and follower” relationship.

53.  The defendant disputed that and has raised a number of points here. 

54.  Firstly, the defendant alleged that he did not hold himself out as a spiritual/religious leader, but only as someone interested in and shared Buddhism.  Hence, the gloss that the plaintiff’s counsel put on the defendant’s evidence, namely, that the defendant purported to be a “living Buddha” and that this is public knowledge, is inaccurate.

55.  I take the view that this is not an arguable defence at all, for the following reasons:

(1)  It is undisputed that the defendant claimed to be, and recognised as, a “living Buddha”[3]:

(a)  The defendant had admittedly attended events organised by the Foundation in his capacity as “living Buddha”[4];

(b)  The “Cool Buddhism” Book which the defendant exhibited referred him as “living Buddha”[5];

(c)  It had been reported in a newspaper known as 大眾生活報 that the defendant had attended an activity in public known as Sunning Festival in 2018, and he was referred to as “living Buddha” in the said news;

(d)  The defendant was expressly introduced as “living Buddha” in a radio interview broadcasted on RTHK on 18 November 2015 (“the Radio Interview”), and it cannot be disputed that the purpose of the Radio Interview was, inter alia, for the defendant to promote Buddhism in his capacity as “living Buddha”[6];

(2)  There is no doubt that the plaintiff was the defendant’s follower:

(a)  It is undisputed that the defendant had given the plaintiff a Buddhist name (法名) on 14 February 2017.  The defendant’s allegations that this was just his valentine’s gift to the plaintiff and that this was not a formal Buddhist name are totally incredible and are rejected.  While it is true that the plaintiff stated in her WhatsApp message that “上師，誒…好開心呀今日收到你送畀我呢一份應該係誒…2017年情人節嘅禮物 ，就係我嘅法名啦”, it is apparent from the plaintiff’s message that she mentioned about “Valentine’s Day” gift only because the Buddhist name was given to her on 14 February.  In fact, the defendant himself did not refer to “Valentine’s Day” at all in his message to the plaintiff;

(b)  It cannot be disputed that the defendant instructed the plaintiff that she had to read Buddhist texts and carry out Buddhist acts (“修行唸經”) on a daily basis[7];

(c)  It cannot be disputed that the plaintiff had participated in the Radio Interview and explained how the defendant had helped her during her pregnancy.  The purpose of the plaintiff was undoubtedly to promote Buddhism together with the defendant;

(d)  It cannot be disputed that the plaintiff and the Son had attended numerous religious activities organised by the Foundation which was founded by the defendant, and in which the defendant had blessed the plaintiff and the Son.

56.  The defendant adduced affirmations of a number of people in which they alleged that, to the best of their knowledge, the defendant was not a religious leader and that they had never heard him preaching certain values and principles as alleged by the plaintiff. 

57.  As I will explain further below, whether the defendant had preached the values and principles as alleged by the plaintiff is neither here nor there.

58.  In relation to their evidence that the defendant was not a religious leader, I regret to say that, in the light of the matters mentioned in paragraph 55(1) above, such evidence is totally incredible.  Even if they subjectively thought the defendant was not a religious leader, that is irrelevant anyway because, objectively assessed, the defendant is plainly a religious leader.

59.  Secondly, it was argued that a person is unlikely to be a spiritual leader for the purposes of undue influence if he only preaches that his followers should be kind to others.  It was further said that for a person to be a spiritual leader, his preaches should have the effect of imposing a degree of domination or control over the follower’s mind.  On this basis, Mr Tang for the defendant spent a lot of effort to persuade the Court that it is arguable as to whether the defendant had in fact exposed the plaintiff to various values and teachings (“the Indoctrinations”) as alleged.

60.  With respect, such an argument is misconceived. Once the Court is satisfied that there is a “spiritual/religious leader and follower” relationship between the plaintiff and the defendant, and if the transaction concerned calls for an explanation (which will be discussed below), then the presumption will be raised and the evidential presumption shifts the onus to the defendant and requires him to adduce sufficient additional evidence to rebut the presumption.  There is no need for the plaintiff to prove that she had been taught in any particular way by the spiritual/religious leader such that a degree of domination or control had been imposed over her mind by such teachings.  The influence is presumed.

61.  Thirdly, it was alleged by the defendant that he and the plaintiff were lovers since late 2016/early 2017.  He even claimed in his affirmation that the plaintiff had begun to address him as her “husband”.

62.  Remarkably, these allegations had not been pleaded in the Defence, in which it was only alleged that the plaintiff was the defendant’s “very close personal friend”.  The defendant is therefore not permitted to rely on these new and unpleaded allegations which apparently are material facts: Kaefer A.G. v Winfield Marine Services Co. Ltd [2022] HKCA 807 at [30] (per Chu JA (as her Ladyship then was)).

63.  In any event, these new allegations are totally incredible.  One only has to read the WhatsApp messages exchanged between the plaintiff and the defendant to appreciate that the plaintiff had always addressed the defendant as “上師”.

64.  I have not lost sight of the defendant’s bare assertion that he and the plaintiff had promised with each other that they would delete WhatsApp records of their romantic relationship everyday, and that it was because of the plaintiff’s failure to keep such a promise that she was able to produce WhatsApp records in support of her case. 

65.  This assertion is rejected as it is incredible.

66.  If what the defendant said was truthful, it is difficult to understand how come the plaintiff would still address the defendant as “上師” at all in so many WhatsApp messages which she managed to produce. Indeed, it is also clear that the plaintiff addressed the defendant in such a way invariably (and the defendant also referred himself in this way) in the WhatsApp messages which the defendant produced.

67.  Neither can I find a single message placed before the Court that contains wordings which lovers might use.

Whether the transactions call for an explanation

68.  In the plaintiff’s affirmation, she stated that:

“All the transactions and gifts manifestly disadvantaged me as they comprised of practically the entirety of my estate. By gifting the Property to the Defendant, I deprived my only son […] of his whole inheritance.”[8]

69.  The defendant did not answer this allegation in his affirmation in opposition.

70.  The defendant’s counsel argued that:

(1)  Insofar as it is asserted by the plaintiff, inter alia, that she only earned an annual salary of around $300,000 at the material time, this should not be considered because this matter was only raised in the plaintiff’s affirmation in reply, and as a result, the defendant could not deal with the matter in his affirmation in opposition;

(2)  The transaction can be explained by their relationship as lovers, together with the gratitude that the plaintiff had for the defendant and the plaintiff’s desire to form a family.

71.  In my view, the defendant’s argument on the “new evidence” point is a red herring, for the plaintiff had apparently adduced evidence that the gifts “comprised of practically the entirety of [her estate]”. As aforesaid, this was not disputed by the defendant at all.

72.  It is noted that the plaintiff said that the Property and the Payments “comprised of practically the entirety of [her estate]”.  She did not explain why she qualified her statement by the word “practically”.  It may well be because, apart from the Property, she also owned the Chelsea Heights Property.  Indeed, she still put down the address of the Chelsea Heights Property in her 2^nd Affirmation (filed on 12 October 2022) as her address.  Therefore, for the sake of completeness, I should also consider whether the existence of the Chelsea Heights Property would materially change anything.

73.  In my view, it would not, because it should be noted that:

(1)  she had taken out the Mortgage on the Chelsea Heights Property on 21 February 2017 so as to borrow $2 million for payment of the balance of the purchase price of the Property;

(2)  she had taken out another loan on 30 September 2019 for $800,000 on the Chelsea Heights Property to pay for the living expenses of herself and of the Son.

74.  In respect of the defendant’s argument that the transaction can be explained by their romantic relationship, it is bound to fail as discussed in the earlier part of this Decision.

75.  The defendant further relied on the gratitude that the plaintiff had to the defendant.  In my view, the existence of such gratitude in the circumstances of the present case only reinforces that there should be a presumption of undue influence.

76.  Having taken all the above matters into account, I am of the view that there is no arguable defence that the transfer of the Property (which cost the plaintiff $6.2 million in September 2016) calls for an explanation. 

Rebuttal of the presumption of undue influence

77.  At this point, this Court must bear in mind what Lord Bingham held in Royal Bank of Scotland plc v Etridge (No.2) (supra) as follows:

“20. Proof that the complainant received advice from a third party before entering into the impugned transaction is one of the matters a court takes into account when weighing all the evidence. The weight, or importance, to be attached to such advice depends on all the circumstances. In the normal course, advice from a solicitor or other outside adviser can be expected to bring home to a complainant a proper understanding of what he or she is about to do. But a person may understand fully the implications of a proposed transaction, for instance, a substantial gift, and yet still be acting under the undue influence of another. Proof of outside advice does not, of itself, necessarily show that the subsequent completion of the transaction was free from the exercise of undue influence. Whether it will be proper to infer that outside advice had an emancipating effect, so that the transaction was not brought about by the exercise of undue influence, is a question of fact to be decided having regard to all the evidence in the case.” (emphasis added)

78.  Both parties have also referred this Court to the work of Snell’s Equity (34^th Ed., 2020) in which the learned author stated in §8-033 thereof that:

“If a court finds that there is a relationship of influence and a transaction calling for explanation, the doctrine of undue influence will apply unless A can show that, in fact, B’s entry into that transaction was not procured by undue influence. To do so, A must present evidence to justify a finding that, in relation to the transaction in question, B was in fact sufficiently independent of A and so was able to, and did, consent to the transaction free from any undue influence. The presumption of undue influence arises only if there is no explanation for B’s entry into the transaction other than the exertion of undue influence, so, technically, evidence rebutting the presumption does not go to the question of whether there was an understandable reason for which B entered the transaction, but to the different question of whether B’s admittedly poor decision-making was the product of undue influence. A must convince the court that B’s decision to enter the transaction was made as a result of ‘full, free and informed thought about it’. The presence of such thought is not, of course, a general requirement for the validity of a transaction; but it must be remembered here that, ex hypothesi, there is a relationship of influence between A and B and the transaction is one which, in its nature, can only be explained as a result of undue influence. Those concerns can only be met, in effect, by A’s showing the procedure through which B formed his or her consent. If the presumption of undue influence is rebutted, then the court has found that B’s consent to the transaction was not procured by undue influence and so the doctrine cannot apply.

The question of whether the presumption of undue influence has been rebutted is a question of fact to be determined on all the evidence. It is not sufficient for A to show simply that B understood what he or she was doing and intended to do it: undue influence consists not of a lack of understanding or an absence of consent but of a lack of sufficient independence in relation to the transaction. Nor is it enough for A to show that his or her behaviour prior to and at the time of B’s entry into the transaction was free from any moral blame […] Nor will it necessarily suffice to show that the initial idea for the transaction was B’s […]” (emphasis added)

79.  It was argued by Mr Tang for the defendant that there is at least an arguable case that the presumption can be rebutted on the bases of the followings:

(1)  The plaintiff was represented by solicitors in respect of almost each document executed in relation to the Property, including the SP Agreement and the Assignment.  She had also been advised by solicitors regarding her negotiation with the Inland Revenue Department on the stamp duty payable for the Lease.  Hence, there must at least be a real possibility that one or more of those solicitors involved would have adequately advised her of the possibility of undue influence and her rights to rescind.  Although the plaintiff alleged that the solicitors were not apprised of the relationship between her and the defendant, the court should not accept such an allegation without sight of the relevant transaction files or correspondence which had not been placed before the Court;

(2)  It is at least arguable that the plaintiff was acting under her own free will at the material time because she was by then not subject to the alleged Indoctrinations such as “offerings”, “punishments”, “Buddhist secrecy precepts”, etc.;

(3)  It is undisputed that the plaintiff had taken the initiative to prepare almost every legal document, and it can be seen that she had planned the whole transaction with care.  In particular, the transaction was designed in a way (not conveying the Property to the defendant by a Deed of Gift but by the SP Agreement with consideration of $6 million stated) which was disadvantageous to the defendant and exposed him to the possibility of being sued for the $6 million consideration;

(4)  Insofar as it is suggested that the defendant had pressurised the plaintiff to execute the Lease and the Assignment, a reasonable interpretation of the relevant message[9] was that the defendant was only encouraging the plaintiff to be focused and determined on completing the Property transaction;

(5)  As the parties were lovers at the material time, it is at least arguable that that was the reason why the Property was gifted to the defendant.

80.  I should say outright that, as aforementioned, the defendant’s allegation that he and the plaintiff were lovers is plainly incredible. 

81.  On the other hand, my attention has been drawn by Mr Chau and Ms Szeto for the plaintiff to, inter alia, the followings:

(1)  In Enonchong, Duress, Influence and Unconscionable Dealing (3^rd edition), the learned author stated that:

“[…] the evidence required to rebut the presumption depends on the weight of the presumption in a particular case. The heavier the presumption, the more demanding the court will be of evidence necessary to rebut it. Thus, it would appear that although in the ordinary case the fact that the complainant received competent legal advice as to the nature and effect of the transaction may be enough to rebut the presumption, in a case where the weight of the presumption is particularly heavy, it may be necessary to show that the complainant was free to act on it. In Etridge Lord Scott mentioned Allcard v Skinner as an example of a case where the presumption was particularly heavy. He said that correspondingly strong evidence would have been needed to rebut it. Even independent legal advice, he said, would not necessarily have sufficed. […] Thus, where the circumstances show that the complainant is clear the victim of abuse, the court will refuse to uphold the transaction, however much independent legal advice the complainant might have received.” (at §12-011)

(2)  In Allcard v Skinner (supra), Lindley LJ opined that, of all influences, religious influence is the most dangerous and the most powerful, and to counteract it Courts of Equity have gone very far[10];

(3)  On 10 April 2018 (i.e. 4 days before the Lease was executed), the defendant sent the following message to the plaintiff:

“[…] 你應承過我啲乜嘢一定要做得到，唔可以食言，記住上師講。我要你點做你就點做，呢個係你嘅承諾，記住我講。你一切都係屬於上師嘅，呢個就係你嘅戒律。[…]”

And the plaintiff replied:

“[…] 咁至於上師頭先你同我講嘅嗰番話，其實我知道嘅，我會記住所有嘢都係屬於上師嘅 […]”

(4)  On 31 August 2018, the plaintiff further assured the defendant by saying that:

“上師我亦都多謝你相信我喇，因為呢個滿名山[11]係我一定會親自交返俾上師嘅，絕對欸…唔會違背我當日即係欸…嘅承諾喇，雖然係一間好細即係…細細嘅屋仔，咁等完咗政府綁我三年之後，咁我睇吓咩情況就再轉翻俾上師啊。”

82.  As far as the Lease is concerned, it is undisputed that the plaintiff had not obtained any legal advice in relation thereto before the execution thereof. 

83.  Mr Tang’s reliance on the legal advice sought by the plaintiff in relation to her negotiation with the Inland Revenue Department is misplaced, as the Lease had been entered into by then.

84.  There is plainly no evidence that the defendant could rely on to rebut the presumption of undue influence in respect of the Lease.  To the contrary, the defendant’s message sent on 10 April 2018 reinforces the plaintiff’s case that she must be acting under the undue influence of the defendant at the time when the Lease was entered into on 14 April 2018.

85.  Hence, I am prepared to grant summary judgment in favour of the plaintiff on the Lease.

86.  However, the SP Agreement and the Assignment were executed around 1.5 years later.  It is undisputed that the plaintiff did have the benefit of legal advice when she entered into these transactions. Having said that, the fact that the plaintiff had sought independent legal advice might not necessarily be enough, especially in the light of the particularly heavy weight of the presumption in the present case.

87.  It should also be noted that the defendant himself stated in his voice message sent on 20 August 2019 at 10:19am that he understood that the plaintiff was making an “offering” (“供養”) when she decided to gift the Property to him.

88.  In Pitamberdas Chatomal Kalwani trading as Kalwani Corporation v Jacobson Van Den Berg (Hong Kong) Ltd. [1964] HKLR 842 in which Blair-Kerr J held:

“In Hong Kong it not infrequently happens that when a defendant is asked to show cause why judgment should not be given against him, he puts forward by way of defence an allegation which, on the face of it, may strike a court as being rather farfetched, although the court may hesitate to shut him from the seat of judgment. For my part, I think that the court should not hesitate to grant conditional leave in such cases […]” (at 862)

89.  I am facing the same situation as described by Blair-Kerr J above.  In my view, the defendant’s defence is shadowy.  I am very nearly prepared to give judgment for the plaintiff in respect of the SP Agreement and the Assignment in the circumstances of the present case.  However, I hesitate to shut the defendant from the seat of judgment right now.  I am of the view that the defendant should be entitled to cross-examine the plaintiff at the trial and argue more fully on the rebuttal of the presumption, even though, on the materials placed before the Court at the moment, I have real doubt whether his argument may succeed after trial.  I therefore hold that the defendant should only be granted leave to defend on condition. 

Affirmation

90.  Mr Tang also sought to argue that, since the plaintiff had (i) executed the Lease; (ii) dealt with the Inland Revenue Department; (iii) instructed her solicitors to issue a pre-action letter to the defendant dated 20 July 2020; and (iv) filed the original endorsement of claim, all of which operated on the premise that the Property transaction was valid and subsisting, it must be at least arguable that the plaintiff had affirmed the Property transaction.

91.  As pointed out by Mr Chau and Ms Szeto, the defence of affirmation has not been pleaded in the Defence. 

92.  This defence should therefore not be considered herein.

Conditional leave to defend

93.  As indicated, I hold the view that conditional leave to defend should be granted to the defendant in relation to the plaintiff’s claim on the SP Agreement and the Assignment.

94.  What remains for this Court to consider is the condition to be imposed.

95.  In their reply written submissions, the plaintiff’s counsel invited this Court to order the defendant to pay $6 million into Court if conditional leave to defend is granted.

96.  Commentary 14/4/16 of Hong Kong Civil Procedure 2023, (volume 1) reads:

“When granting conditional leave to defend, the court is required to consider all the circumstances, which include the financial circumstances of the defendant, and for practical purposes should not impose a condition, e.g. the payment into court of such a sum of money as would make fulfilment of the condition impossible and that impossibility was known or should have been known to the court by reason of the evidence placed before it; and therefore it would be a wrong exercise of discretion to grant the defendant leave to defend on condition that he should pay into court a sum which he would never be able to pay, for that would be tantamount to giving judgment for the plaintiff, notwithstanding the court’s opinion that there was an issue or question in dispute which ought to be tried […]”

97.  I am of the view that the defendant should be given an opportunity to adduce evidence on his financial ability if he wishes to do so.  I will therefore give further directions in this regard below.  I will also consider parties’ further submissions on the condition to be imposed before making a ruling on the matter.

DIRECTIONS

98.  I therefore give the following directions on a nisi basis:

(1)  The defendant is at liberty to file and serve affirmation on his financial circumstances within 14 days hereof;

(2)  The defendant shall, within 21 days hereof, lodge and serve further written submissions on:

(a)  the condition to be imposed;

(b)  the costs of the Summons;

(c)  the directions on the further conduct of the action;

(3)  The plaintiff shall, within 7 calendar days thereafter, lodge and serve further written submissions in reply.

99.  Parties shall inform the court within 7 calendar days hereof as to whether they agree to the above proposed directions.   Reasons shall be stated if they have any objection thereto.

100.  While I have indicated that I am prepared to grant judgment to the plaintiff in relation to the Lease, I consider that I should withhold making a formal order on that at this stage, but only grant the order at one go after I have decided on the conditions to be imposed.

COSTS

101.  The question of costs will be dealt with in due course upon the Court’s consideration of the further submissions to be lodged.