ULTIMATE PC AND MAC GALLERY LTD v. WU KA YAN DOROTHY AND OTHERS

DCCJ 1320 & 2681/2015

(Consolidated)

[2018] HKDC 915

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1320 OF 2015

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CIVIL ACTION NO 2681 OF 2015

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(Consolidated pursuant to the Order of
Master M Lam of the District Court
dated 31 July 2015)

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JUDGMENT

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INTRODUCTION

1.  The plaintiff in DCCJ 1320/2015 (“P”) is the former employer of the 1^st to 3^rd defendants in DCCJ 1320/2015 (“D1, D2 & D3” respectively and “Ds” collectively).  In essence, it’s claim against D1-3 in DCCJ 1320/2015 arises from a sum of $662,800 transferred from P’s HSBC Account (No 809- 4365993-001) to D1’s Personal Account (No 047-5-066049) on 12 October 2012, alleging that it was without any approval or authorisation and hence a misappropriation. 

2.  P further claims against D2 a sum of $8,432 as overpaid subsidy to D2 for a staff trip to Japan organised by P in January 2012.

3.  There was originally a pleaded claim based on “unauthorised removal and retention of confidential information” but it was dropped by P at opening.

4.  D1 and D3 (husband and wife and jointly represented) and D2 (acting in person) all deny P’s claim.  D1 and D2 further counterclaims against P for alleged loans they had advanced to P in the sums of $320,000 and $185,000 respectively in DCCJ 1320/2015.

5.  DCCJ 2681/2015 was originally LBCT 827/2015, wherein D1 and D3 claims (as the 1^st and 2^nd plaintiffs therein) against P (as the defendant therein) for long service payment and payment in lieu of notice of termination of employment.

6.  A substantial amount of disputes arising from P’s dealing with Strong Hope and iMobile appear on pleadings and evidence.  I understand that these are part of the subject matter in another related action HCA 2412/2016, parties have sensibly agreed during opening that these disputes should not be dealt with by this court.  I shall therefore only deal with disputes arising from the alleged misappropriation, the alleged loans to P, the alleged overpaid subsidy for the trip to Japan and the issues in DCCJ 2681/2015.

7.  The originally scheduled 9-day trial in March 2018 had to be adjourned on the 7^th day as a result of discovery of new documents by P[1] and the need to file further witness evidence to speak to the same.  The trial resumed on 15 May 2018 for another 3 days.

CORE UNDISPUTED FACTS AND DOCUMENTS

8.  D1 started working for P in 2000, as an accounts clerk.  Through the years she had worked her way up in P and became its General Manager in July 2011.  In September 2012 her monthly salary was $50,000.

9.  D3 started working for P in 2002, as a driver.  In October 2011 he was promoted to the position of Merchandising Manager.  In September 2012 his month salary was $40,000.

10.  D2 started working for P in July 2010 as its Financial Controller.  In September 2012 his monthly salary was $60,000.

11.  P at all material times used an accounting system called “Dynamic”. Various employees as well as its directors had access to this system through their own login name and password, albeit with different system authority level.  This system kept, among others, records of P’s sales, expenses and current account with directors; it formed the basis of preparing P’s management accounts and ultimately its audited accounts.

12.  D1-3 all had their respective login name for accessing Dynamic, namely “Dorothy”, “Kelvin” and “Choi”.  D2 further could login as the “admin”, i.e. the highest system authority level[2].

13.  In 2010 P was trading at a loss but it turned to be profitable in the following financial year.  Its business continued to grow and in the 2011/2012 financial year its turnover was around $110 million.

14.  In January 2012 P organised a trip to Japan for its staff (the “Japan Trip”), all members of staff were offered to join and P offered subsidies to different extents.  There was an email sent by “Annie” on 8 November 2011, an administrative clerk and subordinate of D2, to “staff@upcmac.com.hk” and “Office Staff” and addressed to “all colleagues” (“各同事”) setting out the scale of subsidy according to length of service[3].

15.  In P’s records, there were 3 consecutively numbered “Sales Memo Customer Copy” issued by Oriental Watch Company (“Oriental Watch”) all dated “3-10-2012”[4] (the “Sales Memos”).  They all stated “Ultimate PC & MAC Gallery Limited” next to “Customer Name” and were issued for the purchase of 3 Rolex watches priced at $269,300, $269,300 and $214,600 respectively, making a total of $753,200 (the “3 Watches”). 

16.  As shown by her Citibank Premier Miles credit card statement of 2 November 2012, D1 made 3 payments to “Oriental Watch Co” on 3 October 2012 of $200,000, $200,000 and $262,000, making a total of $662,800[5].

17.  A sum of $662,800 was transferred from P’s HSBC Account to D1’s Personal Account on 12 October 2012.  There is no longer any dispute that it was D1 who made this transfer as Mr Chan for D1 and D3 confirmed that to be the case at opening.

18.  The said transfer of $662,800 appeared in P’s accounting records in the following way:-

(a)   In a “Bank Payment–Voucher” bearing serial number “BNK-P00492” apparently printed on 20 June 2013 but showing “Date” and “Document Date” of “2012.10.12”[6] (“Voucher BNK-P00492”):-

Account Name	Particulars	Debit (HKD)	Credit (HKD)
C/A-Lung Ho Wah (Director)	Gift	538,600
HSBC C/A #809-435993-001	BNKP00492		662,800
Staff Welfare	Gift	124,200

(b)   Director’s current accounts of Lung Ho Wah apparently printed on 17 Apr 2014[7] :-

Date	Document Date	Journal	Tran	Debit (HKD)	Credit (HKD)	Description	Reference
2012.10.12	2012.10.12	BNK-P	00492	662,800		BNK-P00492	9

19.  In August 2013, one of the shareholders and directors of P, Su Peng Fei (“Aki Su”), wrote to Lung Ho Wah (“Lung”), the other shareholder and director of P, and stated “… having studied the information available to me from the Dynamic Accounting System, I discovered a number of irregularities in the figures of the past 2 years.  These irregularities are set out in Annex 1…”[8]. Annex 1 thereto at point 7 stated that: “Per General Ledger of Dynamic Accounting System (Director Current A/C-Lung), the following payments have been made to Mr. Lung or at Mr. Lung’s direction without the approval by Mr. Su or the board…(a) HK$538,600 paid on 12.10.12 as “Gift”…”[9].

20.  D2 in his answer to the $538,600 matter raised by Aki Su in the above said Annex 1 stated that: “No such item has been found”[10].

21.  On 4 April 2014, D2 transferred $100,000 from his personal bank account to P’s HSBC Account.

22.  On 8 April 2014 D1 transferred $135,000 from her personal bank account to P’s HSBC Account.

23.  On 8 April 2014, there was another cash deposit of $185,000 made into P’s HSBC Account.

24.  On 7 May 2014 D2’s employment with P came to an end.  There was no payment in lieu of notice made to him by P arising from this and there is no claim by D2 arising from this.

25.  On about 17 July 2014 D1 was informed by Lung that D1 and D3’s duties were to be suspended with immediate effect until further notice.  They also returned the keys to the BMW saloon car they were using to P in July 2014.

26.  On 26 September 2014, P summarily dismissed D1 and D3 by letters.  The letters cited various reasons for dismissal[11] but did not mention misappropriation.

27.  By a letter dated 7 November 2014, P’s solicitors wrote to D1 and D2 and made the allegation of misappropriation of $662,800[12]. There is no substantive reply thereto appearing in the trial bundle.

DCCJ 1320/2015

MISAPPROPRIATION AND LOANS

Parties’ cases and determinations required

28.  P’s case is simply that the transfer was without authorisation and thus amounting to misappropriation; D1’s case is that it was reimbursement for the 3 Watches she bought on 3 October 2012 from Oriental Watch for each of D1 to D3, as D2 told her that Lung had offered to each of them such a gift as reward.

29.  Mr Chan for D1 correctly accepted that the burden is on D1 to prove that she was entitled to retain the said sum, as it is admitted that the sum was paid to her and the circumstances do not suggest a presumption of advancement (Sheldon v Davidson [1968] 1 WLR 1083).  In essence, D1 has to prove the story of Lung “gifting” the 3 Watches to each of Ds, on balance of probability.

30.  If I should accept D1’s case then P’s claim would fail; however, if I should reject D1’s case, i.e. finding that the transfer did amount to misappropriation (as there was no other basis offered to justify the transfer), I would have to determine the involvement (if any) and liability of each D in that connection.

31.  As for the alleged loans, P’s case is that they were partial refunds for the 3 Watches, as D1 and D3 allegedly promised Lung to do and procure D2 to do.  D1 and D2, on the other hand allege that the monies were loans to P pursuant to oral requests made by Lung.

32.  Substantial amount of collateral and side issues arise from the context, and were subjects of extensive cross-examination during the trial.  I do not propose to deal with each and every single one of them; I will deal with those issues that are determinative of the overall dispute.  For this reason, although I have considered all the evidence, I will not recite the same herein in full.

Analysis and findings

33.  On this gifting of the 3 Watches story there is only the evidence of Ds to turn to and analyse, as P’s case is simply that there was no such “gifts”. I find the following major inconsistencies and deficiencies in D1 and D2’s cases and evidence:-

(a)  The pleaded case of D2, the supposed messenger regarding the “gifts”, is that Lung at the beginning already mentioned Rolex watches and that was what he told D1; however, D1 in her witness statement seems to suggest that Rolex came as a final decision and only “a gift with value of about HK$200,000” was initially relayed by D2, and in her live evidence she seemed unsure even as to whether “watch” was mentioned by D2 initially;

(b)  Both D1 and D2, in particular D2, spoke of the “budget” for the watches in a way that was not firmly capped at $200,000 (e.g. “二十多萬”、”大約二十萬”) and if that was the case then the total discounted price of $662,800 would be within “budget”, not over budget as they stressed time and again, and there was no actual need for another approval from Lung, as they stressed time and again;

(c)  D2 pleaded also that Lung had told him that Ds could buy the 3 Watches in advance and then get reimbursement, but not only was this alleged pay-then-reimburse arrangement not supported by his written evidence (herein or in his statement filed in LBTC 827/2015) or D1’s written evidence, neither D1 nor D2 explained the way the 3 Watches were paid for that day (i.e. paid by D1 first and then get reimbursement) by reference to D2 being told by Lung to do so, instead they both said it was per “usual practice”;

(d)  There can be no doubt that the 3 Watches were substantial “gifts” to Ds and D2 even emphasised during live evidence how much he appreciated and treasured the sentimental value (“心意”) of this gift, and still does now; and yet none of them went to thank Lung in any way after receiving such hefty “gifts”; not to forget of course, according to them, Lung should be a rather traditional Chinese (he cares about image/presentation and acknowledges Rolex being a status symbol among Chinese people etc.) so it is strange, to say the least, that they would not even mention the 3 Watches after the purchase, not to mention expressing their gratitude to Lung;

(e)  When taken together the close working relationship between D1, D2 and Lung, and indeed personal relationship between D2 and Lung (D2 was the Best Man at Lung’s wedding), the total silence after the purchase becomes truly unfathomable;

(f)  The above also brings into doubt the alleged way of communication with Lung before actually buying the 3 Watches: they were all through D2, which is rather unbelievable given the substantiality of the “gifts”, the close working relationship between D1 and Lung (she had worked for P much longer than D2) and indeed the close physical proximity of their offices, which were right next door to each other; even if Lung did not come in very often, there can be no doubt that at least D1 and D2 would know when he did;

(g)  D2 in his witness statement stated that Lung instructed D1 to transfer from P’s HSBC Account to D1’s Personal Account for the reimbursement, but this is not supported by D1’s evidence at all; as indeed, D1’s evidence is contrary to D2’s: she said she just followed the usual claims procedure, i.e. putting the supporting documents on Lung’s desk for his approval and when approved Lung would return the documents to her or another colleague;

(h)  Yet, D1 did also say that this reimbursement was not a usual one, and in fact was the first time something like this had ever happened; this begs the question: why did she not even speak to Lung about how to handle it?

(i)  Then there is the question of who made what filing of physical records into P’s accounting files; in short the evidence of D1 and D2 in this regard do not sit well with each other, both claiming to have filed the Sales Memos but each offered a different account as to whether the filing included a bank statement or a printed copy of the relevant Dynamic voucher.

34.  Further, specifically to D1, I see also the following inconsistencies in her case and evidence that also tarnish her credibility:-

(a)  She pleaded a non-admission to having made the transfer of $662,800 from P’s HSBC Account to her account, but then during opening and in evidence she admitted to it; in any event, and in reality, it could not have been anyone else, bearing in mind that she also pleaded that she had obtained reimbursement;

(b)  She also pleaded and stated in her witness statement that she did not make the entry of $662,800 in P’s management account of Dynamic but then in live evidence she admitted that she did make such an entry, including even the details of the credit/debit and subsequent amendment in June 2013;

(c)  Further, in an affirmation filed in HCA 1360/2015, D1 specifically affirmed that in relation to the $662,800 reimbursement, “the transaction was recorded in the “Dynamic” in accordance with the instruction of [D2]”[13]; this of course is inconsistent with both her and D2’s case and evidence.

35.  Substantial time and effort was spent on how the figure of $662,800 in the reimbursement record in Dynamic was actually recorded, i.e. whether it was in one single sum or in 2 separate sums of $538,600 and $124,200.  However at the end of the day this is just a peripheral matter, the issue is whether the reimbursement was authorised (irrespective of how it was to be credited/debited) and that in turn goes back to the credibility of the story of the 3 Watches being “gifts” offered by Lung.

36.  The above said, the evidence does show that at least at some point prior to August 2013, i.e. prior to Aki Su enquiring about a sum of $538,600 in Lung’s Director Current Account, the record in Dynamic did contain such a sum as otherwise Aki Su could not and would not have asked about it.

37.  Just so to be clear, apart from D1 admittedly changing the figure from $753,200 to $662,800 in June 2013, I am not making any finding as to who made what changes and when on Dynamic entry BNK-P00492, because the evidence suggests that except the serial number, all the contents of a Dynamic entry could be changed after its creation, as long as the record had not been “locked” after completion of audit for that period.

38.  With the above inconsistencies and deficiencies, I find myself unable to accept the story of Lung “gifting” the 3 Watches to Ds.  It therefore follows that D1 has failed to justify the transfer of $662,800 from P’s HSBC Account to her own account.

39.  My rejection of the 3 Watches “gifting” story inevitably also affects my analysis of the liability of each D and the alleged loans issue.  I shall deal with them in the following order.

40.  Dealing first with the alleged loans of $135,000 and $185,000 by D1 and $185,000 by D2: given my analysis above, they were more likely partial repayments of the money D1 took to reimburse the purchase of the 3 Watches than ad hoc loans to P from D1 and D2 as alleged.

41.  In this connection, I note the following matters which also lend support to these payments being partial repayments instead of ad hoc loans:-

(a)  For the 3 Watches, 2 of them were more expensive and of the same price (being the models with bracelets and for D2 and D3, according to D1) and 1 was less expensive (being the model with leather strap and for D1, according to D1); the 3 payments were of the exact same pattern: 2 larger and equal sums and 1 lesser sum and with one of the more expensive sum coming from D2;

(b)  Other than pure coincidence, neither D1 nor D2 offered any explanation for this matching pattern; I have borne in mind also their evidence that Lung did not specify any figure when allegedly asking them for loans;

(c)  P raised the issue of these payments in its solicitors’ letter to D2 and D1 of 7 November 2014[14] but from the papers available neither seemed to have given any substantive reply[15] and the first occasion where D1 said these payments were loans was during the hearing of LBTC 827/2015 on 13 April 2015[16];

(d)  Had these payments been truly loans, I see no reason why D1 or D2 could not have pointed this out right at the outset.

42.  Lung’s evidence on events leading to these payments, i.e. the alleged confession by Ds, is not without inconsistencies, but overall and on balance I still prefer Lung’s evidence to that of D1 and D2.

43.  I next deal with the roles of D1 and D2 in this 3 Watches saga: it is highly unlikely that either of them could be an innocent participant.  The burden of proof is on P to prove its pleaded case that there was either a conspiracy among them to injure P by unlawful means or D2 had rendered dishonest assistance to further D1’s fictional story concerning the 3 Watches. However, any finding must necessary be made by inference to be drawn from available evidence, in this context primarily coming from Ds instead of P.

44.  For D2 obviously there is no room for him to say that he did not know the truth or was misled into thinking that the “gifts” story was genuine: he was the one who claims to have directly communicated with Lung on this matter and he admittedly was the one who relayed the fake story to D1.

45.  For D1, theoretically she could say she was misled by D2 into thinking that Lung was giving each of them a watch as gift, but given my analysis above it is inconceivable that she was in fact kept in the dark by D2 throughout.  If nothing else and without reciting my analysis above, she should/could have spoken to Lung directly and/or thanked him if she did genuinely believe that Lung was giving her and her husband such substantial gifts.

46.  There is accordingly no room for either of them to argue that there was no combination among them, with the common intention to take P’s money to fund the 3 Watches without the alleged authorisation by Lung, and thereby causing loss to P.  I therefore draw these inferences and make such findings against them.  All the elements of the tort of unlawful means conspiracy, as formulated in Xiamen Xinjingdi Group v Eton Properties Ltd [2016] 2 HKLRD 1106, are present.

47.  The upshot of the above is that D1 and D2 must be jointly and severally liable to P for damages to the net extent of $157,800[17].

48.  What remains under this topic is the less straight-forward position of D3.  P’s case against D3 is on the basis of him being another co-conspirator or rendering dishonest assistance to D1/D2’s breach of fiduciary duties.  There is of course no evidence that D1 or D2 had ever told D3 that the 3 Watches story was false so there is no direct evidence of D3’s knowledge of what D1 and D2 conspired to do.  Also, there is no direct evidence that D3 actually took part in conjuring up the “gift” story, in the selection or decision making process or in the subsequent accounting entry making; his only involvement on direct evidence was that he drove D1 and D2 to Oriental Watch on 3 October 2012.

49.  What P seeks to establish by inference, in essence, is that D3 must have known the plan given both his close relationship with D1 and also his own suspicious conduct, e.g. denying participation in the selection process and decision despite claiming to be a Rolex collector, clam reaction when D1 told him about the “gift”, overall detachment in the whole purchase etc.

50.  Theoretically D3 could run a case of being kept in the dark and subjectively believing D1/D2’s story about the 3 Watches but I find that the circumstantial evidence, viewed through the spectacles of common sense, tips against him:-

(a)  The detachment/disinterest he portrayed in evidence is rather contrived and even over the top: unlike D1 and D2 (or even Lung for that matter) Rolex watches do mean something to him, as he has “collected” (“收藏”) two of them;

(b)  He had worked for P for about 10 years by then and was promoted just the year before, I cannot think of any possible reason for him not to in some way express just a little gratitude after receiving it, or even just mention it to Lung acknowledging his receipt, as after all he had had no direct communication with Lung in relation to the 3 Watches;

(c)  Not only that, in his evidence it is apparent that he did not even think about expressing gratitude in any way;

(d)  A “gift” like this was admittedly not a usual occurrence, as indeed there is no evidence that he had ever been given a “gift” by P or Lung, his purported reaction in general was as if nothing out of the ordinary had happened, i.e. totally inconsistent.

51.  As indeed, I do not think D1’s evidence of the source of watch models, pricing and discount offered by Oriental Watch makes sense in the circumstances:-

(a)  She knew that D3 at least knows a thing or two about Rolex watches and she knew that D3 had purchased watches from Oriental Watch before; it does not make sense for her not to go to D3 as her first port of call for information, especially given the ignorance in this regard on her and D2’s part;

(b)  The source she cited, a male friend, could not have been a more direct and ready source than her own husband, whom she saw everyday and at least also just a phone call away;

(c)  She was anything but forthcoming with the identity of this male friend, adding to the doubt of the veracity of the whole story.

52.  I therefore do not accept that D3 was completely “insulated” as he and D1 would have me believe.  He must have known the plan and participated at least in the selection process.

53.  Based on the above and on balance, I find that D3 was also a co-conspirator and thus jointly and severally also liable for the $157,800 in damages.

54.  It follows also that the counterclaim by D1 and D2 for the alleged loans must be dismissed.

JAPAN TRIP

P’s pleaded case

55.  Subsidy of the Japan trip was offered according to seniority, and to get 100% subsidy an employee had to have worked for P for 6 years.

56.  According to this policy, D1 and D3 were entitled to 100% subsidy and D2 was only entitled to 20%.

57.  Since P had initially paid for all the employees, it is claiming D2 for 80% of the cost on his part, being $8,432.

D2’s pleaded case

58.  Regardless of the subsidy scheme, employees of “managerial level” were not subjected to this scheme. 

59.  The basis of this “exemption” is said to be an oral approval by Lung at the end of 2011.

Relevant evidence

60.  In his witness statement, D2 stated that Lung at the time had said that due to the contribution made by the managerial level employees to improvement of P’s business, Lung “specifically” decided that managerial level employees, i.e. including D1 and D2, would be fully subsidized for the Japan trip.

61.  During cross-examination by P, D2 was put, and disagreed with, the case that Lung never offered full subsidy to him and that the email sent by Annie on 8 November 2011 applied to everybody including him.

62.  Lung in his evidence, written and oral, simply said that he never offered full subsidy as alleged.

63.  D1, when cross-examined by D2, said that she and D3 did not have to pay for the Japan trip as they were “managerial level” (“管理層”).

Analysis and findings

64.  On contemporaneous document, i.e. the email sent by Annie on 8 November 2011, the picture was clear: the scaled subsidy scheme applied to everyone, because the email was sent to everyone and addressed to “all colleagues”.  D2 therefore has to persuade me that there was a separate and specific full subsidy approval granted by Lung to him as “managerial level” employees.

65.  There is not only insufficient evidence for me to make such a finding, the evidence and circumstances in fact contradict D2’s case:-

(a)  D2 offered no particulars as to the circumstances of his alleged oral approval by Lung: no details such as date, venue, participants etc. were mentioned anywhere;

(b)  His allegation in any event does not make very much sense: D1 and D3 would have fit into the full subsidy category given their length of service so there was no need for Lung to grant them any approval by such label as “managerial level”; only D2 needed such an approval to get full subsidy;

(c)  This in turn makes D1’s evidence in support both contrived: she and D3 did not need this “managerial level” umbrella in order to get full subsidy, and indeed baseless: nobody, not even herself, has ever given any evidence that Lung had told her the alleged specific approval.

66.  I do not accept D2’s case and therefore find that P’s Japan trip claim against D2 is proved.

DCCJ 2681/2015

67.  As I have come to the above findings, as accepted by Mr Chan for D1 and D3 at closing submissions, there was accordingly proper justification for P to summarily dismiss D1 and D3.

68.  Their claim for payment in lieu of notice based on wrongful dismissal is therefore dismissed, regardless of the determination of other complaints made of them in HCA 2412/2016.

COSTS

69.  P having prevailed in DCCJ 1320/2015 and DCCJ 2681/2015 should have costs of these actions.  The only issue is the costs arising from the belated discovery from P during the March 2018 trial.

70.  An adverse costs order against P is warranted for the following reasons:-

(a)  The documents were clearly relevant to the issues in this case, namely the true nature of the alleged loans, hence they ought to have been disclosed by P during the discovery stage in the first place; the test for relevance, at least at that stage, is of course not whether either side intend to, or will eventually, rely on them or the Court will eventually rely on them;

(b)  It is indeed not open to P to argue that it never intended them to be relevant: its counsel specifically asked D1 about Dynamic entries of the alleged loans when cross-examining her, and even indicated that it would seek leave to amend its pleadings in light of these new documents;

(c)  The only explanation offered by P for non-disclosure, through its counsel, was that P did not know of their existence; this explanation is unacceptable:-

(i) All the documents in its 4^th and 5^th SLoD were either in P’s file (Voucher BNK-R00470 was printed out on 27 January 2016 and obviously kept in P’s physical file as it was disclosed in the form of a copy of that print out) or in P’s electronic records (all the entries in Lung’s director current account and “audit listing” now printed out) long before trial;

(ii) The alleged lack of knowledge, being a matter of fact, is not substantiated in any form of evidence; to accept it would be to accept evidence given from the Bar table.

71.  The late discoveries led to filing of further witness statements from both sides as well as adjournment of the March 2018 Trial.  I see no reason why P should not be held liable for such additional and thrown away costs.

72.  On the above basis, I am minded to award costs of these actions to P but only half of the costs of the whole trial.  I will not treat trial costs differently for the 2 actions as they turned on the same issue in so far as this trial is concerned.

73.  As indicated at the end of the closing submissions, I will make the above costs order nisi so that parties, if needs be, may apply to vary it and persuade me otherwise.

Disposition

74.  In summary, I make the following orders:-

DCCJ 1320 of 2015

(a)  D1 to D3 shall be jointly and severally liable to pay P damages in the sum of $157,800;

(b)  The counterclaim of D1 and D2 be dismissed;

(c)  P shall have its costs in respect of the whole action, subject to any previous costs order(s) and save that it shall only be entitled to half of the costs of the trial;

DCCJ 2681 of 2015

(a)  The action be dismissed;

(b)  P (i.e. the defendant in this action) shall have its costs of the action, subject to any previous costs order(s) and save that it shall only be entitled to half of the costs of the trial.