DEVONPORT LTD v. THE HONGKONG AND SHANGHAI BANKING CORPORATION LTD

HCMP 2775/2017

[2018] HKCFI 326

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2775 OF 2017

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DECISION

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Introduction

1.  This action concerns what, in the normal course, would likely be viewed as a typical Norwich Pharmacal application seeking discovery of information and documents from an innocent third party in order to support a potential action against alleged wrongdoers.  However, in the course of the application a number of issues arose, including as to how the proceedings were constituted and the evidential basis on which the application had been brought.  I raised these issues with counsel for the plaintiff during the hearing on 23 January 2018 and noting, in particular, that the defendant was not present at the hearing, I consider it appropriate that I deal with a number of the issues in this decision. 

The parties

2.  The plaintiff in the action, Devonport Limited (“Devonport”) is a Hong Kong incorporated and registered private limited company. 

3.  The defendant in the action, the Hongkong and Shanghai Banking Corporation Limited (“HSBC”) needs no introduction.  HSBC’s involvement in the matter is as an innocent third party solely as a result of Devonport holding an account with it in respect of which Devonport seeks information and documents. 

Devonport’s evidence

4.  Devonport relies on the affirmation (and the exhibits thereto) of Andrew Craig Murray (“Murray”) made on 28 December 2017 in the United Kingdom and the second affidavit (and the exhibits thereto) of Mark Andrew West (“West”) made on 16 January 2018.  Murray is a director of Devonport by virtue of his position as a partner of Milestone International Tax Partners LLP (“Milestone”).  Apparently, Milestone is a UK based tax consultancy firm which provides services to the two individuals who are the ultimate beneficial owners of Devonport.  Effectively, Murray is the nominee of the beneficial owners.  West is a partner of Hong Kong solicitors firm Kennedys, the firm on the record as representing Devonport in the proceedings. 

HSBC’s evidence

5.  HSBC has not instructed solicitors to represent it in the proceedings and did not appear at the hearing on 23 January 2018.  Nevertheless, the bank’s position is revealed by correspondence between it and Kennedys (and also Devonport) exhibited to the evidence of Murray and West as well as a letter it addressed to the court dated 22 January 2018 (copied to Kennedys).  The latter letter seeks to summarise HSBC’s position regarding the handling of the original written and in-person enquiries for information and documents made of it by Kennedys in the name of Devonport and/or Murray, and sets out its position as regards Devonport’s substantive application before the court (which HSBC did not contest).  The letter also set out the basis for HSBC’s opposition to the application of Devonport that it pay Devonport’s costs of the action.  In the normal course, the applicant for a Norwich Pharmacal order is required to pay the costs (on an indemnity basis) and the expenses of the innocent third party from which information and documents is sought.  It is an unusual feature of the application of Devonport that it sought costs against HSBC.  I will deal with this aspect later in this decision. 

Devonport’s application

6.  Devonport commenced the proceedings by an Originating Summons dated 28 December 2017 and filed on 29 December 2017. 

7.  In addition to orders for the disclosure, right to inspect and entitling it to take copies of information and documents, the summons also sought ancillary orders in the form of a “gag” order requiring that HSBC not reveal or disclose the existence of the proceedings to anyone, an order that the court file in relation to the matter be sealed and not be able to be inspected by third parties without leave (leave only to be granted after an inter partes hearing to be held in camera) and an order that the references to the parties in the published daily cause list be ‘anonymised’. 

8.  While such ancillary orders are by no means unusual in the context of an application for a Norwich Pharmacal order (or injunction), for the reasons I explain later in this decision I am not satisfied that they are necessary in the present case. 

The obligation of full and frank disclosure

9.  At the outset of the hearing I raised with counsel for Devonport the extent of the disclosure made on Devonport’s behalf in the evidence relied upon.  In A Co v B Co [2002] 3 HKLRD 111, at 116F – 118C, Ma J (as he then was) set out a number of considerations and principles that the court should have regard to on an application for Norwich Pharmacal relief.  I shall not set them out in full but refer, in particular, to:

(a) the extraordinary nature of the relief, it not being a usual order and as such not one that a court would lightly grant in the absence of powerful factors;

(b)   the need for cogent and compelling evidence to demonstrate that serious tortious or wrongful activities have taken place; and

(c) the alleged wrongdoing is not that of the target of the application but that of a person or persons against whom no action is brought or relief sought at this stage and therefore is not before the court and is not able to answer any of the, often very serious, allegations made against them. 

10.  With the above considerations in mind, I raised with counsel for Devonport whether the application for Norwich Pharmacal relief required that it make full and frank disclosure to the court as would be the case were it applying ex parte for an injunction.  As I have already observed, the ancillary orders sought in the present case include an application for a mandatory injunction in the form of a “gag” order in respect of which, certainly on an ex parte application, it would be incumbent upon the applicant to make full and frank disclosure to the court. 

11.  Counsel submitted that Devonport’s obligations in this regard were tempered or limited because the hearing was inter partes as regards HSBC (albeit the bank had chosen not to attend).  However, with respect, I do not think this is right, and certainly not as regards the matters I refer to below as to which I am of the view that the evidence relied upon by Devonport was not as complete and comprehensive as it should have been.  It is in the very nature of a Norwich Pharmacal application that the defendant/respondent is an innocent third party not involved with and therefore likely to be unknowing of the background to the alleged wrongdoing that is the basis for the application.  Whether or not HSBC participated in the hearing it could not have been expected to put before the court information known only to Devonport. 

12.  In my view, the evidence relied upon on behalf of Devonport ought to have explained, either at all or more clearly, the following:

(a) the structure of the shareholdings in Devonport, both legal and beneficial;

(b)   the origins and intended purpose of the monies remitted by the two individuals which after being deposited in the account of Devonport with HSBC were the subject of the alleged fraud; and

(c) the authority of the firm of Kennedys to act for and bring the present proceedings in the name of Devonport.  

13.  Murray’s affirmation describes the background to and the establishment of Devonport in paragraphs 17 to 22.  That which is described, of itself, does not appear unusual.

14.  As is set out, the structure was intended to result in each of the two individuals being beneficially entitled to 50% of the shares of Devonport, namely 12,500,000 fully paid ordinary shares of HK$1 out of a total of 25,000,000 issued shares, their beneficial interests being held on trust for them by the sole registered legal shareholder.  Originally, the registered shareholder was an entity by the name ITCS Holdings Limited (“ITCS”) but later the shares were transferred to a second entity called Ganton Special Opportunities Fund Limited (“Ganton”).  Each of ITCS and Ganton were made available for this purpose by the alleged principal fraudster, Matthew James Davies (“Davies”), who apparently runs a Hong Kong corporate services provider and was known to Milestone. 

15.  Murray and Davies were appointed the only two directors of Devonport and critically (because it appears to have facilitated the alleged fraud that is said to have subsequently occurred), the only two signatories to the account in the name of Devonport with HSBC.  They were sole signatories up to a relatively low limit and thereafter joint signatories but unfortunately it appears that the joint signatory limitation proved ineffective or inoperative in respect of transfers out of the account made electronically through online banking.  The evidence shows that the vast majority of the funds in the account were able to be removed, it is alleged by or with the involvement of Davies, and it is said without Murray and the two individuals who are the beneficial owners of Devonport even being aware until relatively recently.  It is alleged that the withdrawals were made without authorisation, fraudulently, and the Norwich Pharmacal application now made is part of efforts to trace and follow the monies withdrawn so that further proceedings to recover them might be brought. 

16.  The first issue I raised with counsel for Devonport is that the terms of the declarations of trust produced by Murray (the first example of which is at page 63 of the exhibits to his affirmation) do not appear to accord with the account set out in the body of his affirmation.  According to paragraph 1, the beneficial owner was to advance the sum of Euro 1.4 million to ITCS which ITCS would then use to “acquire” 11,892,100 fully paid ordinary shares of HK$1 each in the capital of Devonport, which shares were then to be held on trust for the beneficial owner.  The second declaration of trust appears to be in identical terms.  As can be seen, there is a mismatch between the number of shares identified by the declarations of trust and those referred to in Murray’s affirmation as intended to be held on trust for each of the two beneficial shareholders. 

17.  The terminology used, namely the reference to “acquire”, also raises an apparent issue as it appears from Murray’s affirmation, paragraph 11, that ITCS already held the shares; they were not newly issued.  Therefore, there was no necessity for the shares to be acquired. 

18.  Finally, while described as “fully paid ordinary shares”, according to the records filed with the Companies Registry the paid-up capital of Devonport is only HK$1. 

19.  It is possible that these matters can be readily explained but in my view an application of the present nature requires that issues such as this are clearly and comprehensively dealt with in the evidence (especially where they arise simply on the face of the documents or the public record).  If this is not possible, perhaps due to the limited information and documents to hand, such apparent inconsistencies should at least be identified and any potentially resulting issues drawn to the attention of the court. 

20.  The second issue I raised with counsel for Devonport was with regard to paragraph 24 of Murray’s affirmation where it is stated that it was only “Following some requisitions from the receiving bank…” that, more than three weeks after the original receipt, the sum of Euro 2.8 million was credited to the account in the name of Devonport with HSBC.  My concern expressed to counsel was that there was no explanation in Murray’s affirmation regarding the nature of the requisitions raised by HSBC.  I noted:

(a) the amount involved, the only explanation for the intended use of which, set out in paragraph 18 of Murray’s affirmation, is that it was to “… establish an investment structure through which certain medical trials could be funded in the future.”;

(b)   that following the eventual credit of the monies there was no evidence of any steps being taken to act on the stated original intention for more than a year; and

(c) that it was not until October 2017 that Murray and/or the two beneficial shareholders of Devonport appear to have started to make anything approaching strenuous efforts to investigate the present position as regards the money. 

21.  In my view, the matter of the requisitions raised by HSBC should have been addressed in Murray’s affirmation in more detail.  Counsel for Devonport submitted that the court should be sufficiently reassured by the fact that whatever requisitions were raised the later credit of the monies to Devonport’s account showed that ultimately HSBC was satisfied with whatever responses were provided.  With respect, I do not agree.  The role of HSBC as banker, following its internal procedures and performing its statutory obligations, for example, as regards matters such as anti-money laundering, cannot be equated to the position of the court dealing with the present application. 

22.  Finally, the factual issue which most concerned me was whether the firm of Kennedys had and have the necessary authority to act in the name of Devonport, including the authority to commence the present proceedings.  As I have referred to, the only two directors of Devonport at the relevant time were Murray and the alleged principal fraudster Davies.  Understandably this presented Milestone, Murray and the two individual beneficial shareholders with a difficulty; how could action be taken in the name of Devonport without alerting Davies? 

23.  The solution adopted appears from a series of board minutes exhibited by Murray to his affirmation, the first of which (at page 85 of the exhibits) is recorded as being passed on 24 October 2017.  As is clearly stated, the resolution was passed solely by Murray without any notice to Davies, relying, the resolution states, on a provision of the Articles of Association of the company that a director who has a conflict of interest in a matter cannot vote on it and should not be counted in the quorum for the purposes of the meeting.  What is not noted in the resolution is that the quorum required by the Articles of Association for a directors meeting, unless there was a sole director, is two directors.  With Davies unaware of even the holding of the meeting, only Murray was present.  Nevertheless, the resolution goes on to record that “… the board considers and acknowledges that it will be quorate in considering and passing the resolution.”  (the resolution being the appointment of the firm of Kennedys to act on behalf of Devonport). 

24.  This first resolution and a series of subsequent resolutions, including resolutions purporting to remove Davies, appoint as a director Miles Dean (“Dean”) of Milestone and change the correspondence address of Devonport (to an address other than the offices of Davies and ITCS), were later relied upon by Kennedys in correspondence with HSBC in which they stated that they act for Devonport and sought information and documents regarding the dealings with Devonport’s account. 

25.  In HSBC’s subsequent correspondence with Kennedys over the course of several weeks concerns regarding whether the various board resolutions were in fact validly passed without notice to Davies and therefore potentially without the necessary quorum were raised a number of times.  However, and despite the issue having been directly raised by HSBC, the subject of proper authorisation is not addressed in the evidence relied upon by Devonport (I note that the Articles of Association of Devonport were not exhibited to Murray’s affirmation) nor was it referred to in the submissions of counsel for Devonport at the hearing.  In the event, the articles were only placed before the court with HSBC’s letter to the court of 22 January 2018. 

26.  That the issue of authority was not addressed on behalf of Devonport I view as a clear omission. Not least it is well established that the commencement of proceedings without proper authority may amount to an abuse of process. 

27.  Counsel for Devonport sought to explain and justify the position on the basis of the apparent or ostensible authority vested in Murray as an undisputed director of Devonport.  In my view, that argument does not assist Devonport.  At the outset it was well known to all concerned that there was a second director, Davies and that the only reason that he was not being notified was his alleged involvement in the fraud. The board resolutions concerned are exhibited to and relied on in the affirmation of Murray.  Moreover, the issue of authority is self-evident on the face of the resolutions, whether or not it had been raised by HSBC.  But even after the issue was raised by HSBC, there was no apparent renewed consideration as to whether there was appropriate authority to act and ultimately these proceedings were commenced on behalf of Devonport.  As I have noted, the Articles of Association of Devonport were only belatedly before the court, and then only through the efforts of HSBC. 

28.  A further justification relied upon by counsel for Devonport (and in particular as regards the application that HSBC should bear Devonport’s costs) is that Murray as a designated signatory to the account was entitled to the information and documents sought from HSBC in any event.  In Murray’s affirmation he explains that he personally attended at a branch of HSBC in Hong Kong on 14 November 2017 (having flown from the United Kingdom for the purpose) where apparently he proved his identity to the satisfaction of the HSBC staff concerned (this is supported by the fact that they provided certain information to him on the spot) and he made a written request for the production of additional documents and information.  The request was apparently signed by him in the same manner as the signatory mandate held by HSBC. 

29.  This argument has more force, and I had particular regard to it when, in the exercise of my discretion and notwithstanding the concerns I have identified, I resolved to grant (with a number of amendments) the Norwich Pharmacal order sought by the application. However, a review of the history of the matter and the course of the correspondence between all concerned, in particular between Kennedys and HSBC, shows that the issue of the personal authority of Murray was closely interwoven with and as a result quite possibly lost sight of or at least did not have prominence over the issue regarding the authority of Murray (and of Kennedys) to act in the name of Devonport.  I also observe that the present application was not brought relying on any right vested in Murray as a signatory to the account but in the name of Devonport. 

Is the plaintiff the proper claimant? 

30.  A further point relied upon by counsel for Devonport was that the fraud concerned Devonport’s money and therefore it was the proper party to make the present application. However, I view this analysis as incomplete (and, in any event, no answer to the question of proper authority).  The monies were not part of the paid-up capital of Devonport and there is no evidence that Devonport had given any consideration for receipt of the monies.  Whether the monies represent any part of the assets of Devonport itself is unclear even though at the time of the alleged fraud they were held in an account in the name of Devonport.

31.  As I have previously observed, the origins of the monies are not dealt with in Murray’s affirmation and their apparent intended purpose does not appear to have been acted on.  However, it appears clear that the ultimate interest in the monies lies with the two beneficial shareholders of Devonport who remitted them to Hong Kong in the first place.  Despite this there is no evidence before the court as to whether any consideration was given to alternative options, for example commencing an action on a derivative basis, or if it was but no other feasible approach was identified, as regards the perceived difficulty of proceeding on any other basis. 

Norwich Pharmacal order

32.  Notwithstanding the concerns I have identified in this decision, I consider it appropriate to make an order for discovery, inspection and access to documents and information regarding Devonport’s account with HSBC.  During the course of the hearing I reviewed with counsel for Devonport a draft order intended to clearly identify the scope of the information and documents sought and a draft in those terms has since been provided to the court under cover of Kennedys letter dated 8 February 2018.  I order in the terms of the draft save for the deletion of paragraph 4 (which provides for future references in the daily cause list to be ‘anonymised’) and paragraph 5 (which provides that leave is required to make use of the documents and information for particular purposes).

33.  Norwich Pharmacal relief is part of the equitable jurisdiction of the court and ultimately the grant of such relief is a matter in the court’s discretion.  The evidence in this case in support of alleged wrongdoing is strong, even though as yet untested.  The information and documents sought also concern a company the ultimate ownership of which lies with the two beneficial shareholders from whom Kennedys’ instructions presumably derive, even if they are obtained and routed through Murray and/or Milestone.  It is also information to which Murray being the beneficial shareholders’ nominee as director and a bank signatory would likely be entitled to in the normal course. The court also has regard to the fact that substantial costs and expenses will have already been incurred reaching this point.  Finally, the substantive application is not contested by HSBC (only the costs order sought). 

Implied undertaking

34.  During the course of the hearing, I raised with counsel for Devonport whether an applicant for a Norwich Pharmacal order is subject to an implied undertaking as regards the future use of the documents and information obtained by virtue of the order.  That such an implied undertaking exists in respect of discovery in the course of substantive litigation inter partes is well-established. 

35.  Discovery obtained by way of a Norwich Pharmacal order is necessarily different from discovery inter partes.  The very purpose of the application is to obtain information and documents that might allow for the commencement of separate proceedings against those identified as alleged wrongdoers or caught up in acts of wrongdoing.  While there is a long practice of including with a Norwich Pharmacal order wording of a permissive nature indicating that the information and documents obtained may be used in future proceedings to pursue matters as regards the alleged wrongdoing it does not follow that an implied undertaking would arise in the absence of express words.  As counsel for Devonport observed, such wording does not appear in the order made by the court in A Co v B Co [2002] 3 HKLRD 111 which is frequently relied upon as a precedent. 

36.  Hong Kong Civil Procedure 2018 includes two seemingly inconsistent references:

(a) in the note at 24/14A/1 on page 646 there appears:

“ However, the principles [being, it appears, the limitation regarding the use of material obtained on discovery] do apply in respect of material disclosed as a result of a Norwich Pharmacal order, and the restrictions in relation to such material could not be any more stringent than in relation to materials disclosed on discovery.”; [underlining added]

(b)   while in the note at 29/8/30 on page 748 there appears:

“ Where information is obtained pursuant to an Anton Piller or a Norwich Pharmacal order for the purpose of pursuing third parties, there is no implied undertaking …” [underlining added]

37.  The former note, which in any event is somewhat ambiguouslyworded, references the Court of Appeal decision in Kensington InternationalLimited v ICS Secretaries Limited (Long Beach Limited and Ors intervening) (No 3), Court of Appeal [2008] 4 HKC 137.  However, the note appears to be a misreading of the judgment of the Honourable Rogers, Vice President, (paragraph 33) where it is clear that His Lordship was observing (the comments are obiter) that the inclusion of express permissive words in a Norwich Pharmacal order could not impose any greater restriction on the subsequent use of documents than would be the case in respect of discovery obtained by virtue of Order 24 and subject to an implied undertaking.  The context was an issue regarding the alleged misuse of documents obtained by way of a Norwich Pharmacal order which were later read out in open court.  His Lordship had, in any event, previously observed in his judgment that he viewed the inclusion of express words as unnecessary though he recognised that it was a common practice. 

38.  For my part, and while I am not required in the present matter to making any finding, I agree with the observations of the Honourable Rogers, Vice President regarding the nature of a Norwich Pharmacal order and thus with the note in Hong Kong Civil Procedure 2018 at 29/8/30.  Therefore, I do not propose to incorporate any form of permissive wording in the order to be made in this matter and it will be for the intended plaintiff in any future action to consider whether, in the particular circumstances of that matter, an application for leave is required. 

39.  I have separately considered whether, in the particular circumstances of this matter, I should require as a condition of ordering discovery an express undertaking to the effect that further proceedings should not be commenced in the name of Devonport without the court’s leave.  On balance I have resolved not to do so but I trust that both counsel and Kennedys will take note of my concerns as identified in this decision. 

Is a “gag” order appropriate? 

40.  Such an order is commonly ancillary to a Norwich Pharmacal application, the purpose being to reduce, preferably avoid, the risk that the innocent third party to whom the order is directed will inadvertently or deliberately (perhaps pursuant to a pre-existing obligation) alert the alleged fraudsters that they may face action.  However, in the circumstances of the present matter I do not consider that a “gag” order as applied for is appropriate.  In this regard, I note:

(a) According to the information already obtained from HSBC, by far the largest part of the monies were withdrawn from the account as far back as 2 May 2017.  While the last withdrawal was on 15 September 2017, it is already known that the monies concerned were sent to a United Kingdom incorporated and registered company with potential connections with Davies.  Similarly, the recipients of two other earlier substantial withdrawals are also already identified and again their potential connections with Davies known. 

(b) Kennedys’ letter to HSBC of 30 October 2017 exhibited to Murray’s affirmation directly refers to the possibility of an urgent application to the court to compel HSBC to produce information yet it was only nearly two months later that these proceedings were commenced. 

(c) In the meantime, on 13 November 2017, HSBC addressed a letter to Devonport at its then registered office, the office of the alleged fraudster Davies and ITCS, responding to (and enclosing) a letter received from Kennedys dated 6 November 2017, which letter described the concerns that give rise to these proceedings and provided a copy of the board resolution of 24 October 2017.  There must be a strong likelihood that this letter will already have come to the attention of Davies. 

(d) Further, by a Form ND2A, Devonport, acting through the person of Murray, gave notice to the Companies Registry of the removal of Davies as a director, the form states by way of “Resignation/Others”. The form dated 14 November 2017 will be publicly available to anyone searching the file of Devonport and as a result, again, there must be a strong likelihood that it will already have come to the attention of Davies. 

(e) These proceedings were commenced and became a matter of public record on 29 December 2017 and while an application for a “gag” order and sealing up is included in the relief sought no such applications were made on an interim basis prior to the issue of the proceedings. 

(f) Finally, the order sought is directed to HSBC with whom Murray and/or Kennedys have been in correspondence and communication regarding the very same matters for what is now several months without the benefit of any form of “gag” order.  In the normal course, HSBC, as a bank owing obligations of confidence to its customers, will jealously guard their confidential information and the only persons entitled to it will be those who are appropriately (in the eyes of the bank) authorised.  Save for the letter I have referred to at (c) above, it would appear that HSBC have already gone quite a long way to accommodating the requests of Murray as regards changing Devonport’s banking correspondence address and providing him with information and documents in his capacity as an account signatory.  Therefore, I do not consider any purpose would be served by now imposing a “gag” some four months later. 

Sealing up of the court file and anonymous naming of parties

41.  Immediately prior to the hearing on 23 January 2018, in response to what I have to note was a somewhat belated written request from Kennedys, I directed that the daily cause list for that day not show the names of the parties.  I did so noting that this was an order sought by the application to be heard the following day.  However, for the same reasons I set out above for declining to make a “gag” order, I also decline the applications for both sealing up of the court file and the use of anonymous names in any future cause list. As to the first, as I have noted, the court file was unsealed when the proceedings were filed on 29 December 2017.  The sealing of the court file is something only ordered when absolutely necessary and for no longer than necessary.  In my view there is nothing about this matter that justifies sealing up.  Similarly, if any further proceedings are required within the present action I consider that they should show the names of the parties. 

Costs

42.  The last matter arising from the hearing on 23 January 2018 I need to deal with is the subject of costs.  As I noted previously, an unusual feature of the present application is that Devonport sought costs against HSBC rather than the usual order which would be in favour of HSBC (on indemnity basis).  Counsel for Devonport argued that HSBC had either unnecessary delayed or had taken an inappropriately adversarial position in response to the efforts of Devonport through Murray and/or Kennedys to obtain information and documents.  Counsel in particular referred to the separate (to Devonport) entitlement of Murray as a signatory and the meeting Murray attended with HSBC on 14 November 2017. 

43.  In all the circumstances, I am satisfied that HSBC conducted itself reasonably and, in particular, I do not view it as having adopted an adversarial position beyond the limits of what is appropriate for a bank which has an obligation to protect the confidence of its customer, which is the corporate entity Devonport.  This must include ensuring that at all times the proper authorisation is presented before information and documents are provided or the account particulars, including correspondence address, are changed.

44.  As is noted in HSBC’s letter of 22 January 2018, a letter from Kennedys to HSBC dated 28 December 2017 threatened proceedings if the bank did not provide the requested information and documents within seven days.  However, these proceedings were commenced the following day without giving HSBC an opportunity to respond.  Had the seven day ‘grace period’ been allowed, it is possible that these proceedings would not have been necessary.

45.  As I have observed, and while it may have taken longer than Murray would have liked, a certain amount of information and documents have already been obtained from HSBC over several months.  HSBC has also already indicated in correspondence, most recently to the court on 22 January 2018, that it will not oppose the making of an order requiring that it produce any remaining information and documents (and has stated that it is already taking steps in this regard).  Accordingly, I order that Devonport pay HSBC the costs of this action and the costs of compliance with any order made on an indemnity basis and further reimburse HSBC for all other reasonable costs of compliance with the order, all such costs to be taxed if not agreed. 

Publication

46.  Finally, I direct that this decision be published after the expiry of 30 days from the date of handing down the decision but I give leave to Devonport to apply in writing through my clerk if it considers that publication should not take place or that a longer time period is appropriate.