RE K&R INTERNATIONAL LTD

HCMP 99/2021

[2021] HKCFI 561

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 99 OF 2021

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DECISION

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Introduction

1.  This is the application of K&R International Ltd for an order to pay a sum of about $3,600,000 into court pursuant to section 62 of the Trustee Ordinance, Cap 29.  The application is made by way of an ex parte originating summons dated 21 January 2021.

2.  The applicant is a company incorporated in Hong Kong.  Since 2014, it has been engaged in the business of prepaid card service, marketed in the name of “K&R Global Express Card”.  The cards issued under this service are “stored value facilities” under the Payment Systems and Stored Value Facilities Ordinance, Cap 584.  Under that Ordinance, any person issuing and operating a stored value facility is required to obtain a licence from the Hong Kong Monetary Authority (“the HKMA”)and is subject to its oversight.  The applicant is licensed by the HKMA to issue and operate prepaid cards.

3.  In August 2020, the applicant decided to cease the card business.  Since then, it has launched a redemption exercise inviting holders of individual prepaid cards to redeem the outstanding value stored on the cards. 

4.  As of the date of the originating summons, there remained a sum of $5,051,034.22 which was yet to be redeemed.  According to an update affirmation filed shortly before today’s hearing, the unredeemed amount was reduced to $3,671,025.79 as of 22 February 2021.  The reduction was due to the redemptions which took place in the one month since the present application was made.

5.  The applicant says that it holds the above unredeemed sum on trust for the holders of the cards.  It now seeks an order to pay the sum into court so that it can complete the cessation of its card business.

6.  The application is supported by the affirmation evidence of Mr Lu Zhenwei, the applicant’s alternate chief executive.

7.  In this decision, I shall use the term “the Card” or “the SVF business” to refer to the prepaid card business operated by the applicant.  The term “the cards” shall mean the individual prepaid cards issued and held by its customers, whom I shall call “the cardholders”.

The cards

8.  The cards issued by the applicant are preloaded (or prepaid) with value.  The holders can use the cards for payment at merchants which accept UnionPay card.  The cards can be used in Hong Kong and overseas, in particular Mainland China.  The use of the cards is subject to the applicant’s terms and conditions, which are published on the applicant’s website.  The version updated as of 22 November 2018 is included in the evidence.

9.  The applicant issues three types of cards – anonymous cards, personal cards and co-brand cards. 

10.  One can purchase an anonymous card with a face value (or pre-stored value) from $500 to $8,000.  No personal information is required from the customer for the purchase.  If a customer wishes to purchase an anonymous card with a face value of over $8,000 (and up to $25,000, being the maximum amount), he will have to provide personal information for identification purpose.  An anonymous card cannot be topped up.  It means that once the prepaid value is used up, the card can no longer be used.

11.  The personal card is a reloadable card with a maximum stored value of $120,000.  A customer is required to provide valid address proof for the purchase.  That is what the terms and conditions provide for.  However, in his affirmation, Mr Lu states that for cards of which the holders can be identified, the applicant does not have their addresses.  I will have to come back to this point in the discussion below.

12.  While the terms and conditions also refer to the co-brand cards, Mr Lu has not referred to this type of cards or explained how they operate, in particular whether and what personal information is required for the purchase.

13.  According to the terms and conditions, the cards expire 24 months after activation.  The outstanding value can be redeemed but a monthly management fee will be deducted from the card.

14.  The applicant maintains accounts with Bank of Communications Trustee Ltd.  The purchase money received from the cardholders are deposited into segregated trust accounts which are separate from the applicant’s own house account.

The legal framework

15.  In relation to the money received from the cardholders, the terms and conditions provide as follows:

“2. We will maintain an account (“Account”) for each Card issued by us [ie the applicant]. Where the Card is used for purchasing goods and services, cash withdrawal, or when K&R service fees, administration fees, and/or other Card related fees are charged by us, and/or when the Card is reloaded, the Account balance will be adjusted accordingly.

3.    Funds Management

(a)    Your money [ie the purchase money paid by a cardholder] in your Account will be held in segregated trust accounts (collectively, the “Trust Accounts”) which are separate from the house account of K&R for your benefit until such funds are either returned to you at your request or paid for your transactions.

(b)    By maintaining your funds in the Trust Accounts on your behalf, we undertake to:

(i)    Secure your funds free from any lien, charge, pledge, mortgage or other encumbrance, equity or thirty party right of any nature; and

(ii)    Keep proper records relating to the Trust Accounts.

(c)    You will only be entitled to all monies standing to your Account and you will not be entitled to any interest in any other Trust Account.

(d)    K&R may, but shall not be obliged to, invest the funds in the Trust Accounts in accordance with applicable laws, rules, regulations, codes, guidelines, circulars and K&R’s policies.

(e)    If K&R decides to invest the funds in the Trust Accounts, K&R shall be entitled, as remuneration for the services which it provides in its capacity as a trustee, to retain the net profits generated from time to time by the appreciations of value of the investment for its own use absolutely.” (italics added)

16.  The above terms are given effect by a Declaration of Trust executed by the applicant on 17 October 2016, and a SVF Custodian Deed executed on the same date by the applicant and Bank of Communications Trustee Ltd as the custodian.

17.  In broad terms, under the Declaration, the applicant becomes the trustee of the outstanding stored value on the cards (referred to as “the Float”) for the benefit of the cardholders.  The operative provisions are contained in clauses 3 and 4 of the Declaration.

18.  Under the SVF Custodian Deed, the applicant appointed Bank of Communications as the custodian of the Float.  Separate accounts were opened and maintained for receiving the Float.  See clauses 2.1 to 2.4.

Exit from the Card business

19.  On 17 August 2020, the applicant decided to exit from the Card business. 

20.  By an announcement published on its website on 11 September 2020, the applicant informed the cardholders of its decision.  The announcement stated:

“… K&R shall exit from stored value facility business in an orderly manner. K&R shall execute the “Redemption Arrangement” stated below with its prepaid card holders in phases. If you are holding one of our co-brand prepaid cards, please contact your distributor as soon as possible for more assistance” (italics added)

21.  As announced, the redemption exercise would proceed in three phases.

22.  Phase 1 would start from the date of the announcement and end on 30 November 2020.  Under this phase, the cards, if valid, would remain usable.  The cardholders are however encouraged to use up the remaining value of their cards.

23.  Phase 2 would start from 1 December 2020 and last for 5½ months, ie until 15 May 2021.  All cards would be terminated on 1 December 2020.  They can no longer be used even though the 24-month period has not yet expired.  The cardholders should apply to the applicant to redeem the remaining value.  That can be done in person, or by post, courier or email. The redemption service would cease on 15 May 2021.

24.  Phase 3 would start from 1 June 2021 onwards. The announcement stated as follows:

“If you would like to redeem your card balance on or after 1 June 2021, you may apply to the designated law court and will need to bear the relevant charges. Detailed procedures will be published before 31 May 2021.”

25.  I pause here to note that by stating the above, the applicant seems to be assuming that a court order for payment in will be granted as a matter of course.

26.  In his affirmation, Mr Lu said that not all the cardholders had provided their personal information to the applicant and that has posed a major difficulty to the applicant when it came to informing them of the redemption exercise.  This is particularly true of anonymous cards where no information was required at all for the purchase if the prepaid value did not exceed $8,000.  Furthermore, even for holders whose identity had been previously recorded by the applicant, the applicant does not have their addresses such that the applicant is not able to notify these identified cardholders individually by post.

27.  For these reasons, the applicant considers that the best way to notify all the cardholders, whether identified or not, is to publish the announcement on newspapers in Hong Kong and Mainland China. Adduced in the evidence are copies of the newspaper announcements appearing in South China Morning Post and the Hong Kong Economic Journal on 18 September 2020.  That would be the first round of announcement published by the applicant on its website and newspapers in September 2020.

28.  What then happened was that the HKMA, who has supervision over the applicant’s SVF business, wrote to the applicant on 30 November 2020 expressing concerns over a number of “major issues” in relation to, among other things, compliance with the licensing conditions. 

29.  Among other issues, the HKMA was clearly concerned that the applicant should complete the redemption exercise in a smooth and orderly manner.  It therefore requested the applicant to take additional actions to expedite the redemption process.  The applicant was asked to “take proactive measures to successfully contact all verified users by 14 December 2020 (e.g. reach individual user by multiple phone calls and WeChat messages, plus seeking help from co-brand partners to reach the user) with a view to completing the float redemption … by all users by end-December 2020” and “[s]tart making immediate preparations with the Custodian and Administrator for the payment into court arrangement with a view to achieving maximum readiness (i.e. residual user float transferred or ready to be transferred to court) by end of January 2021, and providing weekly progress updates to the HKMA” (italics added).

30.  Apparently driven by the measures imposed by the HKMA, the applicant then issued another announcement on its website on 14 January 2021, significantly altering the redemption timetable previously announced and effectively bringing forward the redemption deadline to 29 January 2021.  Cardholders were advised to redeem their cards before that date, referred to as “the Closing Date”.  The announcement said:

“… It is expected that shortly after the Closing Date, the Company will transfer all the remaining prepaid card balance to a Hong Kong law court which will hold such remaining balance as judicial trustee. Upon such an occurrence, the Company will not be in a position to accept any redemption requests and the only means for you to redeem your remaining prepaid card balance is through the Hong Kong judicial process which means you may incur additional costs and may be required to take certain judicial procedures in order to redeem your remaining prepaid card balance. …”

31.  There is also an announcement published in International Business Daily, a newspaper circulating in Mainland China, on 6 January 2021 stating to the effect that after the Closing Date of 29 January 2021, the applicant would not process any redemption application.

32.  It will be recalled that in the first round of announcements published in September 2020, the deadline for redemption was scheduled to be on 15 May 2021.

33.  It is against this background that the present application was taken out on 21 January 2021.

The redemption activities

34.  There is no evidence before me as to how many cardholders were redeeming their cards in response to the applicant’s announcement since 11 September 2020.

35.  As of about 21 January 2021, the remaining unredeemed sums amounted to just over $5,000,000, involving about 2,900 cards.  The outstanding cards included all three types of cards.  The stored value remaining on the anonymous cards ranged from less than $1 to about $4,000.  For other cards, the range was from tens of dollars to about $59,000.  The majority were, however, in sums of a few hundred dollars or a few thousand dollars.

36.  As revealed from Mr Lu’s update affirmation filed one month later, the total unredeemed amounts dropped to about $3,600,000 and the number of outstanding cards to just over 2,000.

37.  In other words, in the last month, about 900 cardholders had come forward to redeem.  It is apparent from the above that significant redemption activities have been going on and are likely to continue to go on. 

38.  Against this backdrop, the applicant asks for leave to pay the remaining sum into court now.

Legal principles

39.  Section 62 of the Trustee Ordinance provides:

“62. Payment into court by trustees

(1) Trustees, or the majority of trustees, having in their hands or under their control money or securities belonging to a trust, may pay the same into court, and the same shall, subject to the rules of court, be dealt with according to the orders of the court.

…

(5) Every transfer, payment and delivery made in pursuance of any such order shall be valid and take effect as if the same had been made on the authority or by the act of all the persons entitled to the money and securities so transferred, paid or delivered.”

40.  When considering whether to make an order under the section, the court generally goes through a two-stage process.  First, the court needs to be satisfied that the property which forms the subject-matter of the payment in application is trust property held by the applicant as trustee.  If so, the court then proceeds to consider whether it should exercise its discretion to allow the payment in.

41.  The section is largely based on section 63 of the Trustee Act 1925 in England.  In the modern day context, it is from time to time invoked in liquidations or cessation of businesses.  Orders for payment in have been made to enable the relevant liquidation or cessation of business to proceed, and come to a conclusion: Re RBC Investor Services Trust Hong Kong Ltd [2018] 5 HKC 80 at para 8.  This applies where the company in liquidation or the company ceasing business holds trust assets, eg client assets, which remain unclaimed, notwithstanding that reasonable steps have been taken to identify the beneficiaries and return the trust assets to them.

42.  In these circumstances, it is recognised and accepted that allowing these trust assets to be paid into court is a “flexible and pragmatic” solution to the situation.  In the context of cessation of business, it enables the company in question to properly cease its business and at the same time protects the interests of the beneficiaries: see, eg, Re Drake and Morgan Ltd HCMP 1490/2009, 27 August 2009 at para 16, per Deputy High Court Judge Au (as he then was).  See also a line of authorities where section 62 is invoked in the context of cessation of stockbroking businesses where the stockbrokers were not able to return client assets, even having exhausted all reasonable means to do so.  The cases are set out in Re X Ltd [2018] HKCFI 15 at footnote 1 to para 4.

43.  It is clear from the above cases and the other authorities cited by Mr Avery Chan, counsel for the applicant, that in a section 62 application, it is incumbent on the applicant to demonstrate by proper evidence that it has taken all reasonable steps to try to identify and locate the beneficiaries (in most cases, the applicant’s customers) and notify them of the cessation and take the necessary step to return the assets to them.  What is reasonable must depend on the circumstances of each case, including the nature of the business, the circumstances in which the assets were received by the applicant in the first place and the information it has in respect of the beneficiaries.

44.  The rationale for this requirement is plain.  Where a company elects to cease its business involving client assets, it bears the primary responsibility to return the assets entrusted to it by the clients.  Where it has difficulties in doing so, eg due to loss of records by reason of long lapse of time, or lack of client contact information, and such difficulties prove to be insurmountable notwithstanding that reasonable efforts have been made, it is quite legitimate for it to seek the assistance of the court, which may grant leave for payment in as a solution to resolve those difficulties.

45.  While it is understandable that the company in question would wish to exit the business as soon as possible, it ought to recognise that it is primarily responsible for an orderly wrap-up of its business.

46.  In this regard, it is for the applicant to satisfy the court that proper and sufficient notice is given to its clients and by reasonable means before it comes to any conclusion that a particular client can be said to be not contactable or untraceable.

47.  Just as in this case as suggested by the HKMA, multiple efforts should be made to track down the clients.  In the application which is typically made ex parte (as there is no one to be served with), the applicant should put together evidence of such efforts.

48.  Apart from the above, in exercising its discretion, the court would, where appropriate, take into account the implication of a payment in order both from the perspective of the untraceable clients and from that of the court.

49.  Once the client asset is paid into court, a client who has not claimed back its assets will have to apply to the court for leave for payment out.  The governing rule is Order 92, rule 5.  The client will have to incur time and/or expenses (if a lawyer is engaged) to obtain a payment out.  The client may well consider that he is unduly inconvenienced as he is forced to get back his own asset from the court with the incidental costs, instead of from the applicant, as a result of the unilateral cessation of the applicant’s business.

50.  However, where the applicant has exhausted all reasonable means to trace the clients and is still not able to find them, the practical likelihood of any client later coming to the court for payment out would not be high.  And if that happens, given that the applicant has made reasonable efforts, the inconvenience of the individual client is perhaps something that has to be tolerated.  These considerations reinforce the need of the requirement that the applicant bears the burden of showing that reasonable steps have been taken to return the assets. 

51.  As far as the court itself is concerned, the practical implication flowing from a payment in order should, where appropriate, be taken into account. 

52.  Once paid in, the assets would be managed and administered by the court under the Suitors’ Funds Rules with the consequence that the cost of administering such assets would be defrayed out of the general revenue of Hong Kong.  This effectively shifts the costs burden from the applicant (who would otherwise have to continue to administer the assets) to the court and thus the taxpayer: Re RBC Investor Services Trust Hong Kong Ltd at para 36.  In the event that payment out applications are made, judicial resources in the form of judges’ or masters’ time would be deployed.  

53.  I should add here that in Re RBC Investor Services Trust Hong Kong Ltd, Deputy High Court Judge Le Pichon commented that by virtue of rule 23(1) of the Suitors’ Funds Rules, where a sum of money remains unclaimed in the court for a period of five years, the Chief Justice may, on application by the Registrar, order such sum to be transferred to the general revenue of Hong Kong.  If the court is to make an order under section 62, at the end of the five years, it would be open to the Registrar to apply for an order that the unclaimed assets be dealt with accordingly.  In that case, the judge observed that the amount likely to be added to the general revenue would far exceed any administration costs.  

54.  In light of all these, when considering a payment in application, the court needs to consider whether there is sufficient justification for such use of the court resources, both judicial and administrative.  This is clearly warranted by virtue of the underlying objective set out in Order 1A, rule 1(f), namely that the resources of the court are to be distributed fairly. 

55.  Lastly, I would consider that, depending on the circumstances, the applicant should give some thought to any viable alternative solution other than a payment in order.

Discussion

56.  In the present case, I am satisfied that the applicant is a trustee holding the remaining sums stored on the unredeemed cards, ie the Float, on trust for the benefit of the cardholders.  The trust arises out of the express provisions of the Declaration of Trust as supplemented by the Custodian Deed and the terms and conditions applicable to the cards, all described in the section “The legal framework” above.

57.  Accordingly, the Float comes within section 62 of the Trustee Ordinance.  The court has jurisdiction to make an order of payment in.

58.  However, I am not satisfied that I should exercise my discretion (or at least not at this stage) to grant the order sought.  In gist, I am not satisfied that the applicant has demonstrated that it has exhausted all reasonable means to trace and contact the cardholders for the purpose of returning the stored value to them.  The redemption timetable, as altered, appears to be unreasonably and unnecessarily tight.  There are gaps in the evidence in that it is not clear to me precisely what personal information of the cardholders is in the possession of the applicant, in particular in the cases of personal cards and co-brand cards.  Equally importantly (if not more so), given that there are ongoing redemptions taking place even as of now, the real likelihood is that after the payment in (if allowed), there would be imminent applications made by the cardholders to the court for payment out. This would put these cardholders to the trouble and expenses of getting back what are effectively their assets.  It is also not a proper use of the court resources.

59.  While the court recognises that there is a legitimate reason for the applicant to invoke the payment in mechanism, the application before the court now is premature.  I shall elaborate on the matters affecting the exercise of the discretion below.

60.  First, the evidence adduced on the availability of the personal information of the holders of personal cards and co-brand cards.

61.  According to the cards’ terms and conditions, a customer wishing to purchase a personal card is required to produce valid address proof.  However, Mr Lu stated in his affirmation that the applicant does not have the addresses even for those customers whom it can identify.

62.  I consider that there is a discrepancy here which needs to be explained by the applicant more fully.  It may be the case that the applicant had collected the personal information but had not kept it as records.  But the applicant has not presented a full picture on this issue to the court. 

63.  Mr Lu’s affirmation is also silent on co-brand cards.  More specifically, what personal information, if at all, would be required from the customers?  In the first round of announcements made in September 2020, the applicant asked the holders of co-brand cards to contact their “distributor” as soon as possible.  Mr Lu has not deposed to any effort made by the applicant to try to get contact information of the holders of these co-brand cards from the “distributor”.  As to whether that is a viable means to obtain contact information of these cardholders, we do not know.  Mr Lu did not say anything in his affirmation.  But it will be recalled that in its letter to the applicant in November 2020, the HKMA requested the applicant to take “proactive measures”, including seeking help from the co-brand partners to reach the cardholders.  Hence, it seems to be a potential means to track down this group of cardholders.

64.  The other measure required by the HKMA was to reach the cardholders by multiple phone calls and WeChat messages.  This seems to suggest that the applicant has in its possession telephone numbers of the cardholders (or at least some of them).  Again, there is no mention at all on this potential means of contact in Mr Lu’s affirmation.

65.  I should add that given that it is an ex parte application, the applicant is required to give full and frank disclosure of all material matters relevant to the application.

66.  Subject to the above observations, I am of the view that where no contact information can be found, an announcement regarding the redemption arrangements published on the applicant’s website and in newspapers is a reasonable means to bring the matter to the attention of the cardholders.

67.  The second difficulty I have is the reasonableness of the redemption timetable.

68.  The initial timetable set out in the first round of announcements made in September last year allowed the cardholders to redeem the cards up to 15 May this year.  That is to say, the applicant built in a period of about eight months for cardholders to come forward to redeem from the applicant, which should be a simple and straightforward exercise.  Cardholders should be given sufficient time for the whole redemption exercise.  One cannot reasonably expect the cardholders to check the applicant’s website frequently and even if they do so, they cannot be reasonably expected to act at once.

69.  As mentioned above, the timetable was then significantly changed.  The applicant announced on 14 January 2021 on its website that all redemptions would have to be done by the 29^th of the same month.  If not redeemed, the cardholders would have to go to the court for redemption.  The redemption period was drastically cut short by 3½ months with no apparent reason given.  The applicant only allowed two weeks from the time of the announcement for the redemption.  And that is on the assumption that the cardholders would find out about this change immediately, which is plainly unrealistic.  This arrangement is clearly unsatisfactory. 

70.  The new arrangement seems to be have been prompted by the HKMA’s comments made in November 2020 – see para 29 above.  The HKMA was clearly concerned that the winding down of the applicant’s business should be done in an orderly manner and, further, that the cardholders’ assets must be fully protected. 

71.  I do not have sufficient information before me to, and I therefore would not, comment on whether the HKMA’s request that the Float should be transferred or ready to be transferred to the court by the end of January 2021 was a sound or reasonable one, particularly from a regulatory standpoint.

72.  However, purely in the context of a section 62 application, the request did not apparently take into account the implications such an early payment in order would have on both the cardholders and the court.

73.  The applicant has clearly taken the HKMA’s request at face value.  Hence the altered timetable requiring all redemptions to the applicant to be done by 29 January 2021.  After that, the cardholders would have to go to the court instead, which would be much more time-consuming and costly.  It is at least slightly ironic that the measure designed by the HKMA to protect the interests of the cardholders might turn out to work to the disadvantage of the cardholders.

74.  Thirdly, my main concern in this application is that it is looking very likely that there will be cardholders coming to the court for payment out if a payment in order is made now.

75.  In the one month from 21 January 2021, a total of about 900 cardholders have redeemed their cards.  The total redemption amounts were about $1,400,000.  There is every reason to believe that this trend will continue and more cardholders will continue to come forward to redeem.  But as time goes by, the number will be expected to decline.

76.  If I make the payment in order today, the outcome is that there will be payment out applications coming to the court soon.  While those cardholders who only have very little money left on their cards, like a few dollars or a few hundred dollars, may not think it worthwhile to make a court application, those having stored value of a few thousand dollars or tens of thousands of dollars would have more incentive to come.  So, starting potentially from tomorrow (or after the payment in is made), the court will have to entertain what are effectively redemption applications from the applicant’s customers. 

77.  This is plainly not acceptable.  It is effectively shifting the burden of returning client assets from the applicant to the court.  The High Court Registry is not an extended back office of the applicant.  Given the expectation of there being more redeeming customers coming forward, the application for payment in is clearly premature.

78.  Fourthly, from the cardholders’ perspective, they have not been given a reasonable amount of time to redeem their cards.

79.  One should bear in mind that some of these cardholders had already had their cards terminated unilaterally before the scheduled expiry.  For those who only have little money left on the cards, they may not think it worthwhile to spend time to go through the court process to get back the money.  That would be understandable.  I consider that if a court order is made today, it would cause prejudice to these customers, both in money terms and also as a matter of principle and fairness.

80.  Lastly, in my view, the applicant should give serious thought to whether there are other options apart from paying the Float into court.

81.  It has to justify why there is the urgency to part with these sums of money now.  Is it possible for it to maintain a bare bone operation solely to deal with the unclaimed moneys?  Towards the end of Mr Chan’s submissions, he informed the court that the reason why the applicant made this application last month was because the HKMA had requested it to do so.  That is consistent with the content of the HKMA letter in November 2020. 

82.  In the course of his submissions, when asked about the implication for a payment in order for the cardholders, Mr Chan referred to a draft notice which has been prepared by the applicant in consultation with the HKMA.  Subject to some minor changes, that notice is to be published.  It seeks to explain the steps the cardholders should take to apply for a payment out order from the court pursuant to Order 92, rule 5.

83.  I have to say I am taken a little by surprise by this latest development as it seems to suggest that the HKMA has taken it for granted that a payment in order will be made today.

84.  As said, I am not in a position to comment on the approach pursued by the HKMA without having heard submissions from them.  I would only say that when considering the exercise of its discretion, the court’s task is to evaluate all the relevant factors.  That exercise I have sought to undertake just now.

85.  Where the HKMA is concerned with any non-compliance of licensing conditions, there ought to be powers provided for in the Payment Systems and Stored Value Facilities Ordinance to address their specific concerns.

86.  Much as the applicant (or the HKMA) wishes to have a clean cut or swift exit from the Card business, the applicant must remember that it has the primary responsibility to look after those client assets, including taking all reasonable steps to return them in a responsible manner, with minimal inconvenience to the customers and without unjustifiably burdening the court with totally foreseeable applications.

Conclusion

87.  For the above reasons, it is not a proper case for the court to exercise the discretion to allow the payment in of these unclaimed sums, or at least not at this stage.  I therefore dismiss the originating summons.

[Submissions on costs]

88.  I make no orders on costs.