A & M MANUFACTURING AND MARKETING LTD v. IU PO SHING

DCCJ 2153/2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2153 OF 2003

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BETWEEN

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JUDGMENT

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1.  By a Summons dated 1^st April 2010, the Defendant applied to dismiss or strike out this action for want of prosecution and/or on the ground of abuse of process. The Summons was heard by Master B. Mak who dismissed the application. By a Notice of Appeal dated 22 June 2010, the Defendant appealed against the Master’s decision.

The Plaintiff’s Case

2.  This is a simple claim for repayment of the balance of a loan.  According to the Statement of Claim, on or about 25 June 1999, by a loan agreement made between Mrs. Sonia Ng (“Mrs. Ng”) acting for the Plaintiff with the Defendant, the Plaintiff agreed to lend $700,000.00 to the Defendant.  The Defendant shall repay the loan (with interest) within 3 months. 

3.  Mrs. Ng is a director of the Plaintiff.  In her 2^nd Affirmation filed herein, she says the Plaintiff was incorporated by her for the purpose of obtaining credit facilities to finance the business operations of her other companies.  She is and was at all material times the only active director in the Plaintiff.

4.  The Plaintiff claims to have paid the said loan to the Defendant by a cheque dated 25 June 1999 drawn in favour of the Defendant and was duly met on presentation.  The Defendant has signed on a copy of the cheque to acknowledge receipt as a personal loan to him.

5.  The Defendant failed to repay the loan by the due date. 

6.  Plaintiff claims that in part repayment of the loan, the Defendant repaid to the Plaintiff a sum of $250,000.00 on 15 March 2000.  The secretary of the Defendant, Ms. Amy Leung sent a copy of the pay-in-slip to Mrs. Ng by fax. 

7.  The Defendant has failed to pay the balance of the loan.  The Writ herein was issued on 14 April 2003 claiming the balance of the loan being $450,000.00 with interest and costs.

The Defence

8.  The Plaintiff claims that there was difficulty in locating the Defendant and the Writ was only served on the Defendant by end of 2005.  A Defence was filed in February 2006. 

9.  According to paragraphs 1 & 2 of the Defence, the Defendant denies that he has entered into any loan agreement with the Plaintiff.  He admits receiving a cheque for $700,000.00 from Mrs. Ng, but no admission is made to whether the cheque is from the Plaintiff.

10.  For the cheque he received from Mrs. Ng, the Defendant claims that it is a personal dealing between him and Mrs. Ng.

11.  The Defendant denies that he had repaid $250,000.00 to the Plaintiff and, as an alternative plea, if he had paid $250,000.00 to the Plaintiff the amount was paid to the Plaintiff as agent for Mrs. Ng at the oral request of Mrs. Ng made to the Defendant on or about 15 March 2000.

12.  The Defendant denies that he is indebted to the Plaintiff.

The Chronology of Action

13.  Mr. Remedios, counsel for the Defendant has prepared a chronology of events.  There is no disagreement with his chronology.  I extract the following more important procedural steps taken by the parties in this action: -

25 June 1999	Date of loan
15 March 2000	Date of partial repayment
14 April 2003	Writ issued
8 June 2005	First application for extension of the validity of the Writ
20 December 2005	Second application for extension of the validity of the Writ
28 December 2005	Writ served
6 January 2006	Acknowledgement of Service filed
3 February 2006	Defence filed
18 June 2007	Plaintiff give Notice of Intention to Proceed
July – August 2007	Summons & Order for direction
20 August 2007	Defendant filed his List of Document
21 August 2007	Plaintiff filed its List of Document
18 December 2007	Plaintiff filed its Supplemental List of Document
1 March 2010	Plaintiff filed another Notice of Intention to Proceed

Delay in Proceeding with the Case

14.  It can be seen from the above chronology that, after the Defendant filed its Defence in February 2006, no action has been taken by the Plaintiff to advance the case until July 2007.  This is the first period of delay, a period of about 16 months. 

15.  A Summons for direction was taken out by the Plaintiff on 30 July 2007.  By consent, on 6 August 2007, Master Poon (as he then was) ordered that the parties to file and serve their respective List of Document within 14 days, i.e. on or before 28 August 2007, to exchange signed witness statement within 56 days from date of Order, i.e. on or before 9 October 2007, and the Plaintiff to apply for a Pre-trial Review within 3 months from inspection of documents, i.e. on or before 3 December 2007.

16.  Mr. Lam Fai Tak, solicitors for the Defendant filed an Affirmation herein on 1 April 2010.  He said after the exchange of List of Document, he had written on 24 August 2007, 17 September 2007 and 29 September 2007 to the Plaintiff’s then solicitors Messrs. Li & Partners requesting for copies of the documents disclosed.  No reply was received.

17.  And on receipt of the Plaintiff’s Supplemental List of Document on or about 18 December 2007, Mr. Lam requested for the copy documents from Messrs. Li & Partners, but received no reply.  On 25 March 2008, Messrs. Kenneth C.C. Man & Co. replaced Messrs. Li & Partners as the solicitors for the Plaintiff.  Mr. Lam followed up with Messrs. Kenneth C.C. Man & Co. for the copy documents.  It was only by 27 June 2008 when Messrs. Kenneth C.C. Man & Co. supplied Mr. Lam with all the copy documents.  In return, Mr. Lam provided the Plaintiff with all the copy documents listed in the Defendant’s List of Document.

18.  The parties have not exchanged Witness Statements at all.  In particular, no Pre-trial Review as directed by Master Poon has been taken out.  Save as mentioned above, there was no progress in 2008 and 2009.  For the period from 18 December 2007 to April 2010, I call this the second period of delay.  There is a delay of about 27 months. 

19.  It is conceded by Mr. Chong, counsel for the Plaintiff that there is inordinate and inexcusable delay from December 2007 to April 2010.

The Basis of this Application

20.  It is not disputed that the Plaintiff’s claim is statute barred and could not start afresh if I strike out the action.

21.  Mr. Remedios submits that the said 2 periods of delay are inordinate and inexcusable.  Mr. Remedios seeks to strike out the action on 3 limbs.  Firstly, he submits that the Defendant suffers serious prejudice as a result of the inordinate and inexcusable delay on the part of the Plaintiff and the case should be strike out for want of prosecution.

22.  Secondly, Mr. Remedios refers me to the case Grovit v. Doctor [1997] 2 AER 417.  He submits that the Court would be more ready to strike out an action when it can be shown that a Plaintiff has no intention of proceeding the case to Trial.  The requirement of prejudice is unnecessary.  Mr. Remedios submits that the Plaintiff has been advancing its case at its pleasure and does not intend to bring the action to Trial, and is an abuse. 

23.  Thirdly, he seeks to rely on the Judgment of Reyes J. in Nanjing Iron & Steel Group International Trade Co. Ltd. V. STX Pan Ocean Co. Ltd. HCAJ 177 of 2006, when Mr. Justice Reyes said “under the present CJR regime, that would seem to me to be sufficient cause to strike out the claim.  In the absence of compelling reason, it is contrary to the underlying objective in Order 1A Rule 1(b) … for a party to allow an action to languish for 2 years once the same has been commenced.”  It is submitted that the Plaintiff has delayed in proceeding with the action and there is no compelling reasons for the delay. 

24.  Mr. Remedios submits that the action should be struck out on anyone of the said 3 limbs and I shall take these arguments one by one.

Birkett v. James Principle

25.  I believe it is not in dispute that the leading case on application to dismiss an action for want of prosecution is Birkett v. James [1978] AC 297.  It is said by Lord Diplock in his Judgment that: -

“The power should be exercised only where the Court is satisfied either (1) that the default has been intentional and contumelious, e.g. disobedience to a peremptory Order of the Court or conduct amounting to an abuse of the process of the Court; or (2)(a) that there has been an inordinate and inexcusable delay on the part of the Plaintiff or his lawyers; and (b) that such delay would give rise to a substantial risk that it is not possible to have a fair Trial of the issues in the action or is such as is likely to cause to have caused serious prejudice to the Defendants either between themselves and the Plaintiff or between each other or a third party.”

26.  In Birkett v. James, their Lordships were concerned with the application of principle (2) only.  In most cases, the parties relied on principle (2) to argue if a case should be dismissed when there is inordinate delay on the part of the Plaintiffs and for this part of the application, Mr. Remedios is relying on principle (2) only.

27.  As Mr. Chong concedes inordinate and inexcusable delay for the second period of delay, the issue before this Court is whether the Defendant suffers serious prejudice. 

28.  Mr. Remedios submits that the Defendant suffers serious prejudice.  In the Affirmation of the Defendant, he claims that as a result of the delay, he cannot get in touch with one witness, namely, his secretary, the said Miss. Leung.  And even if he could locate Ms. Leung now, he cannot be sure if she could have any recollection of the facsimile transmittal record relied upon by the Plaintiff and whether she could say from her memory how and why the alleged payment of $250,000.00 was paid to the Plaintiff and not to Mrs. Ng.  He therefore suffers from serious prejudice. 

29.  Mr. Remedios also refers to the Judgment of Reyes J. In Nanjing Iron & Steel Group International Trade Co. Ltd. v. STX Pan Ocean Co. Ltd. HCAJ 177 of 2006, when His Lordship commented that “over 2 years (or more if one takes the time needed to get this matter to the Trial), memories are bound to dim. There is a substantial prejudice which can be assumed simply because of the passage of time.”  Mr. Remedios further adds that for the current case, the alleged loan has been advanced in June 1999.  The alleged loan transaction took place 10 years ago.  The prejudice to the Defendant is serious.

30.  Mr. Chong argues that an Order to strike out is one of the most draconian Orders.  The Plaintiff would be deprived of an opportunity to have the case determined on its merits. Accordingly, the prejudice which is required to justify a striking out is a serious prejudice.

31.  Mr. Chong submits that the only potential prejudice which the Defendant managed to identify is his inability to contact Ms. Amy Leung.  But the Defendant said he could not locate Ms. Leung since December 2005, when the Writ was served on him.  His failure to contact Ms. Leung could not be caused by the delay.  Further, the Defendant has only tried to locate Ms. Leung by calling one clerk of his former firm.  This is not sufficient to justify the assertion that the Defendant cannot locate Ms. Leung.

32.  Mr. Chong also submits that the material terms of the agreement are well documented in a document under the Plaintiff’s letterhead and signed by the Defendant (“NLSW-11”). The crux of the parties’ argument would be the nature of the document, and the explanation of the Defendant that the $700,000.00 was a personal loan or dealing between him and Mrs. Ng.

33.  Mr. Chong says the repayment of $250,000.00 is merely an ancillary evidential matter to support the Plaintiff’s case.  Mr. Chong submits that the Plaintiff is prepared to undertake not to rely on the repayment of $250,000.00 as part of their case, if the Court finds that the Defendant suffers potential prejudice in relation to his ability to answer the nature of the $250,000.00 repayment.

34.  I shall rule on this argument first. The prejudice that a Defendant relies on is a matter of fact and degree, and can take different form.  The lapse of time that impair the memory of witnesses, the witnesses may die or move away or become untraceable are the most usual factors. “Their importance depends on the circumstances, the issues and the other evidence that can be given. Thus the lapse of time may be very prejudicial if the circumstances of an accident or oral contracts or representations are in issue, but is of much less importance in a heavy, well-documented commercial action” (see Hong Kong Civil Procedure 2009 Vol.1 para.25/L/7 at page 576).

35.  I agree that the evidence of Ms. Leung only relates to the alleged partial payment of $250,000.00.  There is no suggestion that Ms. Leung knew about the original loan arrangement.  But I could not agree that the lack of her evidence on the reason of the partial repayment does not cause any prejudice to the Defendant. The reason for the re-payment could shed light on the nature of the original loan of $700,000.00.

36.  But I have to agree with Mr. Chong that, according to the evidence of the Defendant, he lost contact with Ms. Leung since December 2005.  Accordingly, the failure to contact this witness is not caused by any of the said periods of delay.  But I cannot rule out the submission of the Defendant that even if he could now locate Miss Leung, Ms. Leung could not recall the incidence due to fading memory.  Mr. Chong submits that the Plaintiff is prepared not to rely on the $250,000.00 repayment to support their case that the loan was between the Plaintiff and the Defendant.  But it could not help the potential evidence from Ms. Leung on the reason for the repayment which could assist the Defendant’s defence.

37.  Another point of prejudice would be the fading memory of the witnesses including the Defendant.  Mr. Chong submits that the loan is well documented, which is a document signed by the Defendant (“NLSW-11”).  If one takes a look at the document, it is not a loan document.  It is a copy of the cheque photocopied onto a letter with the Plaintiff’s letterhead and signed by the Defendant acknowledging receipt.  It remains unclear as to whether this is a personal loan from the Plaintiff or Mrs. Ng to the Defendant. 

38.  The case would turn on the oral evidence of the parties, and on the part of the Defendant, the Defendant himself, and Miss Leung.  Then the longer the delay, the greater difficulty would be for the witnesses to have good memory of the event. 

39.  Further, credibility of the Defendant would be at issue when he would be cross examined on the reason for the payment he received from Mrs. Ng.  It is clear from the 2^nd Affirmation of Mrs. Ng that the Defendant was a long standing family friend and a business partner of her.  She has business/investment with the Defendant, which includes Caran Limited.  There is real possibility that at the Trial, the Defendant could be challenged on his credibility by cross-examination on all his previous business/investment with the Plaintiff.  Any loss of memory to his past dealing with Mrs. Ng and/or the Plaintiff would be a serious prejudice to the Defendant. 

40.  I accept that the Defendant has not stated in his Affirmation that he has difficulty with memory.  I think this could go without saying.  I agree with Mr. Justice Reyes when His Lordship said in the Nanjing Iron & Steel’s case that “over 2 years (or more if one takes the time needed to get this matter to the Trial), memories are bound to dim.  There is a substantial prejudice which can be assumed simply because of the passage of time.”  

41.  I also refer to the Judgment of Mr. Justice Yeung in Herbert Hauster v. FPB Asia Limited & Others HCA 7459/1992:-

“As demonstrated in the case of Shtun v. Zalejska [1996] 1 WLR 1270 and Hornagold v. Fairclough Building Co. [1993] 2 PIQR 400, it is not essential that there should be evidence of the particular respects in which potential witnesses’ recollection were impaired, nor did the impairment have to be attributed to any particular period of delay. In an appropriate case, the Court was entitled to draw an inference that by reason of the delay complained on, serious prejudice would be caused to the Defendant as a result of impairment of witnesses’ recollection.

A judge should not always be precluded from drawing inference favourable to the Defendant in the absence of specific evidence expressly particularising the risk of prejudice.

Having said that it is also fair to say that if a Defendant can actually pinpoint evidence showing the impairment of witnesses’ recollection, how such impairment is attributed to a particular period of delay and how such impairment affects the issues in dispute, then prejudice and/or unfair Trial can be more readily established.”

42.  Given the fact above mentioned, I am prepared to infer from the long lapse of time that the Defendant would have a fading memory and thus suffer serious prejudice.  I disagree with Mr. Chong that this is a case well documented.  With my analysis above, I agree with Mr. Remedios that the Defendant suffers from serious prejudice from the second period of delay which is inordinate and inexcusable. The action should be dismissed for want of prosecution.

Grovit v. Doctor

43.  For today’s hearing, Mr. Remedios also relies heavily on the principle as set out in the House of Lords in Grovit v. Doctor. 

44.  As said by Lord Woolf in Grovit v Doctor [1997] 1 WLR 640 at 647F: -

“Even without this surprising late development, I am satisfied that both the deputy judge and the Court of Appeal were entitled to come to the conclusion which they did as to the reason for the appellant’s inactivity in the libel action for a period of over two years. This conduct on the part of the appellant constituted an abuse of process. The Courts exist to enable parties to have their disputes resolved. To commence and to continue litigation which you have no intention to bring to conclusion can amount to an abuse of process. Where this is the situation against whom the proceedings is brought is entitled to apply to have the action struck out and if justice so requires (which will frequently be the case) the Courts will dismiss the action. The evidence which was relied upon to establish the abuse of process may be the Plaintiff’s inactivity. The same evidence will then no doubt be capable of supporting an application to dismiss for want of prosecution. However, if there is an abuse of process, it is not strictly necessary to establish want of prosecution under either limb identified by Lord Diplock in Birkett v. James [1978] AC 297. In this case once the conclusion was reached that the reason for the delay was one which involved abusing the process of the Court in maintaining proceedings where there was no intention of carrying the case to Trial the Court was entitled to dismiss the proceedings...”

45.  It is recognised that there is a separate and long established ground that the Court could dismiss an action for abuse of process by virtue of their inherent jurisdiction, and it is an abuse if the Plaintiff has no intention to bring the case to Trial.  And in exercising this discretionary power of the Court, no prejudice has to be shown.

46.  Mr. Remedios submits that the Plaintiff has not only failed to proceed with the case, it has delayed in completing the process of discovery, did not complied with the Order given by Master Poon for exchanging of Witness Statement and did not apply for a Pre-trial Review.  Looking at the way how the Plaintiff prosecutes the case, it shows that it has no intention to bring the case to Trial and is an abuse.

47.  Mr. Chong refers me to the Judgment of the Court of Appeal in New China Hong Kong Group Ltd. (in liquidation) v. AIG Asia Infrastructure Fund LP [2005] 1 HKC 281 when the Grovit v. Doctor principle has been considered.  He submits that mere delay without more would not amount to an abuse.  And the Defendant has failed to demonstrate that, apart from the delay, the Plaintiff has no intention to bring the proceeding to a conclusion.  He submits that the explanation of the Plaintiff, while it may not be sufficient to excuse the inordinate delay, may nonetheless be sufficient to show an intention to proceed so as to defeat an application to strike out.

48.   In New China’s case, Mr. Justice Woo concluded that the ratio decidendi of Govit v. Doctor is “maintaining an action when there is no intention of carrying it to Trial is an abuse of process rendering the action liable to be struck off.” 

49.  Mr. Justice Woo also considered a few other cases on abuse.  And His Lordship ruled that mere delay without more would not amount to abuse of process.  What is needed is inordinate delay or a serious of inordinate and inexcusable delays in complete disregard of the rules of the Court and with full awareness of the consequences. Further, despite the Court being satisfied the Plaintiff’s conduct amounts to any abuse, it is necessary for the Court to consider whether it is fair to strike out the action.

50.  On what amount to lack of intention to proceed, as ruled by Mr. Justice Au in Cheung Sai Kit v. Wong Chiu Kit, Eric HCA 1611 of 2005, “the inactivity of [the Plaintiff] in not taking any step in the action for 32 months (which is a long period) amounts to prima facie evidence of his lack of intention to continue the action to a conclusion.”  The burden is on the Plaintiff to rebut the prima facie evidence. 

51.  Mr. Remedios’s main complaint is that the Plaintiff has been inactive for over 4 years in total, taking both periods of delay into account.  And more important, the Plaintiff is proceeding with the case at the leisure of Mrs. Ng. 

52.  Given the 2 periods of inactivity, there is prima facie evidence that the Plaintiff does not intend to proceed the case to Trial.  I have to consider the explanation given by Mrs. Ng to see if these are sufficient reasons to rebut the prima facie evidence.

53.  Taking the first period of delay, I note from the 2^nd Affirmation of Mrs. Ng that she was diagnosed to have an aneurysm on October 2005 and had an operation to remove an aneurysm in March 2006.  She was diagnosed to have another aneurysm in mid-2006 and another operation was scheduled in October 2006, which was abandoned due to complication arising from the blood vessels surrounding the aneurysm.

54.  On 20 December 2006, the Plaintiff changed its solicitors and served Notice of Intention to Proceed on 18 June 2007.  For the first period of delay, I could accept the explanation that it is caused by the health condition of Mrs. Ng. 

55.  For the second period of delay starting from December 2007, the Plaintiff concedes that it is inordinate and inexcusable.  In her 2^nd Affirmation, Mrs. Ng explains the reasons for her inactivity in the second period of delay.  The first explanation is again her medical conditions.  But it must be noted that the discovery of her second aneurysm was in mid-2006.  And in October 2006, her doctor has opined that it is too risky to remove the second aneurysm by operation.  Her condition has to be monitored by MRI scan every 6 months.  And she has been advised to keep good control of blood pressure and to avoid stress psychological conditions, which I presume to include litigation.  Her condition was stablised, or there is no evidence that it worsens after October 2006.

56.  While still sick, but stable, the health condition of Mrs. Ng does not justify inactivity for a period of 27 months.  I would have thought that after the first period of delay, and when she gave Notice of Intention to Proceed in June 2007, she should have given due consideration to her health condition.  It is encumbered upon the Plaintiff to make arrangement to pursuit the case speedily in such manner as not to affect her health.  She was at all material time assisted by solicitors.  If her health condition affects the progress, those advising her should apply to the Court for time, when the Defendant would have a fair chance to object.  No application for time has been taken out.

57.  Mrs. Ng states in her Affirmation that it has always been her intention to proceed with the present claim once she has recovered [my emphasis].  While I have every sympathy for the misfortune of Mrs. Ng, there is no justification for leaving the progress of this action to be deciding entirely by her health.  Her conduct is that of warehousing the case until it is a convenient time to pursuit, and is an abuse (per Deputy Judge Au in Cheung Sai Kit’s case).  The medical reason is not an explanation to rebut the prima facie evidence of no intention to proceed.

58.  The other explanations given by Mrs. Ng for the inactivity in the second period of delay is that she had been advised and did attempt to locate some documents in relation to Caran Limited for discovery. The Defendant has for some unknown reasons disclosed documents of Caran Limited.  Mrs. Ng and the Defendant had been directors and investors in Caran Limited.  She was advised that while Caran Limited had not mentioned in the Defence, the Defendant’s case might involve the argument that the loan in issue is in fact to settle some outstanding financial interest which the Defendant may have generated from his involvement in Caran Limited.

59.  Mrs. Ng deposed that the documents of Caran Limited have been kept in the Plaintiff’s office. The Plaintiff has moved offices 3 times since 2000 and a lot of documents, including those of Caran Limited had been transferred to storage.  There was difficulty in locating documents and it was only on 22 April 2010 when she finally managed to find the relevant documentations.

60.  I am not convinced the search for document has to take the whole of the 27 months’ delay.  And even if she had difficulty, this is not a reason for complete inactivity.  She should apply to Court for time.  The Plaintiff has not rebutted the prima facie evidence that they have no intention to bring the action to Trial.

61.  Further, the complaint against the Plaintiff is not merely the delay.  No explanation has been offered for not complying with the Order of Master Poon for exchange of Witness Statement and to apply for Pre-trial Review, which before April 2009 is a material step to prepare for Trial.  The Plaintiff and Mrs. Ng are represented by solicitors in this period and there is no reason to doubt that her lawyers should have advised her on the need to comply with the Order of Master Poon and the Rules of the District Court.  That is a total disregard of the applicable Rules and Order of Court, which is an abuse.

62.  Taking all the matters discussed above, the inactivity of the Plaintiff amount to an abuse. Taking all the matters into account, I consider it is fair to strike out the action.

Abuse of Proceeds – Post CJR position

63.  Mr. Remedios also seeks to rely on a comment by Mr. Justice Reyes in the Nanjing Iron’s case that “under the present CJR regime, that would seem to me to be sufficient cause to strike out the claim.  In the absence of compelling reason, it is contrary to the underlying objective in Order 1A Rule 1(d) ….for a party to allow an action to languish for 2 years once the same has been commenced.” And Mr. Remedios calls this the position after the CJR.

64.  Mr. Chong submits that the comment was disapproved by the Court of Appeal in The Liquidators of Wing Fai Construction Co. Ltd. (in compulsory liquidation) v. Yip Kwong Robert & others CACV 273/2009.  In the Court of Appeal, it was argued before Mr. Justice Rogers that the well-established rules relating to dismissal for want of prosecution were now superseded by the new CJR rules.  Counsel for the appellant, Mr. Barlow referred to Order 1A rule 1(b).  And Mr. Justice Rogers ruled that “Order 1A, rule 1(b) is not a Rule that requires a specific act to be done as such, it is one of the “underlying objectives” of the Rules namely to ensure that a case is dealt with as expeditiously as is reasonably practicable…. There is no specific Rule relating to striking out for want of prosecution in the current High Court Rules.  The matter is still one of the exercise of the inherent jurisdiction of the Court.”

65.  I consider myself bound by the Judgment of the Court of Appeal.  While this comment by Mr. Justice Reyes has been disapproved by the Court of Appeal, there is no comment the other rulings of Mr. Justice Reyes in the same case.  Anyway, I do not have to consider this line of argument in details since I have found in favour of the Defendant in the above 2 limbs of argument.

Conclusion

66.  In summing up, I allow the appeal and set aside the Order of Master Mak.  I grant Order in terms of the Defendant’s Summons to dismiss the action with costs of this application and the action be to the Defendant with certificate for counsel for this application and the application before Master Mak. 

67.  As for the costs of the Action, I summarily assess it at $175,000.

68.  Finally, I thanks counsels for their assistance.