CHUA MING YUEN v. HENTRON INVESTMENTS LTD AND ANOTHER

CACV 50/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 50 OF 2005

(ON APPEAL FROM HCA 3140 of 2002 and

HCA 2930 of 2002 [consolidated])

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HCA 2930/2002

 BETWEEN

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Reasons for Judgment/Judgment

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Hon Yeung JA (giving Reasons for Judgment/Judgment of the Court):

1.  On 10 November 2005, we dismissed L.H. Kwan & Co.’s appeal against the judgment in favour of Messrs Rowland Chow, Chan and Co (‘RCC’) with costs, and reserved our judgment on its appeal against the damages awarded to Ms Chua Ming Yuen. We indicated we would give our written reasons and hand down our judgment in due course, and this we now do.

Background

2.  By a Provisional Sale and Purchase Agreement dated 7 May 2002, Ms Chua agreed to purchase a flat with a car park in Hanking Court, Cloud View Road, Hong Kong (‘the property’) from Hentron Investments Limited for $6.98 million. An initial deposit of $200,000 was paid.

3.  Ms Chua instructed Messrs Kwan Lai Hung trading as LH Kwan & Co (“LHK”) to act for her.

4.  A formal agreement (‘the agreement’) was executed on 21 May 2002 when a further deposit was paid to Hentron’s then solicitors – Messrs Chan and Partners. Hentron then instructed RCC in place of Messrs Chan and Partners to be its solicitor.

5.  The agreement stipulated that completion should take place on or before 5 p.m. on 21 June 2002 and time was of the essence. It provided for a paper completion on Solicitors’ undertakings according to Law Society procedure.

6.  Ms Chua obtained from Industrial and Commercial Bank of China (‘ICBC’) a $2 million loan, secured by a mortgage on the property and on 17 June 2002 she paid a further $4.3 million to LHK.

7.  ICBC made available the $ 2million by way of a bankers draft at 11.30 a.m. on the date of completion, i.e. 21 June 2002 (a Friday). LHK received the bankers draft and then drew a cheque for the same amount on his clients’ account as part payment of the purchase price.

8.  The transaction appeared to have been completed on 21 June 2002 and Ms Chua was given the keys of the property.

9.  However, the $2 million cheque issued by LHK was dishonoured as the bankers draft issued by ICBC could only be cleared on 24 June 2002 and there were insufficient funds in LHK’s clients’ account to meet the cheque.

10.  When it was learnt that the $ 2 million cheque was dishonoured, an inter bank transfer of $2 million was made to Hentron’s Bank – the Hang Seng Bank on 22 June 2002.

11.  By the 24 June 2002, Hentron had received the entire purchase price, including the $2 million, and had in fact used part of the monies to pay off the outstanding mortgages on the property. However, Hentron did not want to complete the transaction and alleged that the dishonour of the $2 million cheque constituted a breach of the agreement.

12.  Through Messrs Chan &Partners (RCC having by then been disinstructed) and by a letter dated 24 June 2002, Hentron purported to forfeit the money paid by Ms Chua. Hentron refused to release the executed assignment and demanded the return of the title deeds and the keys. Ms Chua was unable to obtain legal title to the property.

The Proceedings

13.  Ms Chua commenced proceedings in the High Court for specific performance and damages against Hentron, and for negligence and breach of contract against LHK (HCA 3140/2002).

14.  LHK then commenced proceedings against RCC for an order that it perform its undertakings and damages for breach thereof (HCA 2930/2002) and Hentron was brought in as a third party.

15.  The two consolidated actions went before Deputy Judge Mayo for a five-day trial in October 2004.

The Judgment

16.  In his judgment dated 17 December 2004, the judge found for Ms Chua with costs against Hentron. The judge accepted that the dishonour of the $2 million cheque entitled Hentron to repudiate the agreement, however, as Hentron had not exercised the right to repudiate and had in fact affirmed the agreement, Hentron was obliged to complete.

17.  In the circumstances, Ms Chua was entitled to specific performance of the agreement and damages.

18.  The judge also held that it was Ms Chua’s intention to rent out the property and her attempts to do so were frustrated by the intransigence of Hentron’s director – Mr Hui.

19.  The judge concluded that the damages which Ms Chua suffered in term of loss of rent, and associated expenses were reasonably foreseeable and were recoverable.

20.  Based on the agreed open market rental of the property at the material times, the judge awarded Ms Chua damages of $782,800 and $91,978, being loss of rent, and management fees, rates and Government taxes for 28 months – the period from the time when Ms Chua was reasonably able to rent out the property until the conclusion of the case.

21.  The judge further granted Ms Chua interest and costs of the action to be taxed on a party and party basis against Hentron.

22.  The judge also ruled in favour of Ms Chua against LHK. The judge concluded that the difficulties faced by LHK on 21 June 2002 “were largely attributable to his leaving important matters outstanding until a very late stage”.

23.  The judge opined that when LHK drew the $2 million cheque in the afternoon of 21 June 2002, there was a grave and unacceptable risk that it would be dishonoured.

24.  The judge pointed out that LHK failed to satisfactorily explain why the outstanding matters required by ICBC were not dealt with earlier, having received instructions for a long time.

25.  LHK also did not acquaint Ms Chua of the situation and thus did not allow her the chance to take any remedial action. Instead, a conveyancing clerk was tasked with the difficult job of liaising with RCC on the proposed variation of the payment terms.

26.  The judge rejected LHK’s claim against RCC of breach of undertakings with costs. The judge found that RCC was justified in not honouring the undertakings when LHK failed to pay the purchase price in accordance with the agreement.

27.  As Hentron was just a shell company and had divested itself of all substantial assets, the judgment in favour of Ms Chua was unlikely to be satisfied by Hentron. The judge ordered that should Hentron fail to pay Ms Chua the damages, interest and costs or any part thereof, LHK would have to indemnify her against them or make good any shortfall. The judge did not independently deal with the question of damages that LHK had to pay Ms Chua.

28.  On 9 June 2005, the judge varied the costs orders. The judge divided Ms Chua’s costs into two parts, one relating to her claim against Hentron for breach of contract and one relating to her claim against LHK for negligence.

29.  On the first part, the judge ordered Hentron to pay Ms Chua costs to be taxed on a party and party basis and should Hentron fail to satisfy such costs order, LHK had to indemnify her.  The judge made LHK primarily liable for Ms Chua’s costs for the latter part to be assessed on an indemnity basis.

30.  The judge’s view was that LHK’s professional negligence was so obvious that liability should have been admitted at an early stage so as to reduce the costs of the litigation.

The Appeal

31.  It is against the judge’s aforesaid decisions that LHK appeals.

32.  LHK is not challenging the judge’s primary findings that he had been negligent and is therefore liable to Ms Chua for damages.

33.  The suggestion simply is that LHK’s liability for damages should be confined to the brief period from the scheduled completion date to the time when Hentron affirmed the agreement by receiving the purchase price. It is suggested that what happened thereafter was caused by the unreasonable conduct of Hentron and LHK should not be liable.

34.  In any event, LHK suggests that Ms Chua’s loss was not attributable to his negligence and she had failed to mitigate her loss.

35.  It is further suggested that there should be deductions from her claimed damages, for expenses such as renovation charges, additional interest upon obtaining rental permission from ICBC, commission payments to estate agents and property tax, as she could not have earned the rental income without incurring those expenses.

36.  LHK also challenges the judge’s indemnity costs order and said he was justified in defending an action of professional negligence and that the way he conducted the case was reasonable.

37.  LHK contends that the judge was wrong in concluding that RCC was discharged from its undertaking by reason of the dishonoured cheque.

38.  The suggestion is that such finding is inconsistent with the conclusion that Hentron had affirmed the agreement by accepting all the purchase price and that specific performance of the agreement should be ordered.

39.  RCC’s undertaking, set out in a letter from LHK on 21 June 2002, contains inter alia the following:

“On behalf of our client and in order to complete the purchase of the above property today, we enclose herewith the cheque(s) for the total sum of HK$6,282,000.00 representing the balance of the purchase money as set out in the Schedule attached hereto payable to complete the purchase of the said property and to obtain possession thereof….

The said cheques are sent to you against your firm’s personal undertaking…

As the undertaking follows strictly the draft form of undertaking approved by you and the amount sent is exactly as per your letter your undertaking will be deemed given.

In the meantime and subject as aforesaid you may present the said cheques for payment…”

40.  Mr Malcolm Merry, counsel for LHK, relying on “The said cheques are sent…against your…undertaking”, argues that the undertaking given by RCC depended, not on price being paid, but on the delivery of the cheques for payment. He suggests that delivery of the cheques, and not honouring them, constituted the satisfaction for the undertakings.

41.  Mr Merry even suggests that the tendering of dishonoured cheque did not constitute a breach of the agreement on the part of Ms Chua and to that extent, the judge was wrong in holding that Hentron was entitled to repudiate the agreement.

42.  Mr Merry contends that there are good reasons for a vendor to accept solicitors’ cheques as equivalent to cash as those cheques are highly unlikely to be dishonoured and even if they are, it is likely to be unintentional and quickly repaired.

43.  Mr Merry refers to Chapter 14 – Professional undertakings in “The Hong Kong Solicitors Guide to Professional Conduct Vol 1” and in particular the following qualification at page 154:

“If for any reason the party whose execution of a document…is required by the undertaking is unable or unwilling to execute the same, all moneys sent against the undertaking must immediately and in any event not later than the period prescribed in the undertaking be returned from whence they came and the undertaking given would thereupon automatically stand discharged without prejudice however to the rights of the parties to the transaction in question.”

44.  Mr Merry therefore argues that RCC’s undertaking would only be discharged if upon their dishonour the cheques were returned; otherwise not only must Hentron be deemed to have affirmed the contract and was obliged to proceed with the assignment, RCC’s undertaking would continue or be revived.

Discussion

45.  It is true that payment by solicitors’ cheques are regarded as a reliable alternative to cashier’s orders, but that does not mean that their dishonour would not lead to the consequence of a breach of contract.

46.  If Mr Merry’s argument is correct, then a vendor’s solicitor is obliged to deliver title deeds of a property even if the cheques for payment for the entire purchase price are all dishonoured. We fail to see why a vendor has to take any risk of not receiving the entire purchase price, however small such a risk may be. Such an approach would have far-reaching consequences.

47.  RCC’s undertaking was given in the letters exchanged between the parties, including the one from LHK dated 21 June 2002 and primarily, the nature and effect of the undertaking should be determined with reference to those letters.

48.  The letter dated 21 June 2002 from LHK refers to the cheque(s) for the $6.282 million “representing the balance of the purchase money…payable to complete the purchase of the said property and to obtain possession thereof…” (Emphasis added). The undertaking, if one were to consider the contents of the letter as a whole, was given for the payment of the purchase price by the cheques, rather than the mere delivery of the cheques.

49.  The reference to “As … the amount sent is exactly as per your letter your undertaking will be deemed to be given” also clearly indicates that the undertaking was given on the basis that the balance of the purchase price was paid in accordance with the terms of the agreement.

50.  Clause 2 of the agreement clearly stipulates that the purchase price… shall be paid and satisfied (at the time of completion).

51.  When the $2 million cheque, being part payment of the purchase price, was dishonoured, the very condition for the undertaking failed and the undertaking did not arise at all. RCC, in our view, was not then subjected to the undertaking. There was no question of any undertaking that needed to be discharged.

52.  The subsequent payment of the $2 million by inter bank transfer on 22 June 2002 was not something approved or acknowledged by RCC.

53.  It must be remembered that RCC’s undertaking was quite separate and independent of Hentron’s rights and obligations under the agreement.

54.  The affirmation by Hentron of the agreement, as found by the judge, only gave rise to the contractual dispute between Ms Chua and Hentron, and had nothing to do with RCC’s undertaking which was never given, or lapsed when the purchase price was not paid fully on 21 June 2002.

55.  In any event, we are not persuaded that the alleged breach of undertaking on the part of RCC had in any way caused or contributed to Ms Chua’s damages. In the circumstances, LHK could have no actionable cause of action against RCC at all.

Conclusion on LHK’s Appeal Against RCC

56.  The judge was right in dismissing LHK’s claim against RCC and we affirmed his decision. We therefore dismissed LHK’s appeal against that part of the judgment with costs to be taxed if not agreed. 

Damages to Ms Chua

57.  Ms Chua succeeded against Hentron on a contractual claim. The judge ordered specific performance and damages in favour of Ms Chua.

58.  On the other hand, Ms Chua succeeded against LHK on the basis that LHK was guilty of professional negligence. As LHK provided legal services to Ms Chua for a reward, LHK was prima facie liable to Ms Chua in both contract and tort.

59.  LHK’s liability towards Ms Chua was independent of and separate from Hentron’s contractual liability towards her.

60.  The general object of the award of damages to Ms Chua is to compensate her for her loss – in the present case, only pecuniary, sustained as a result of LHK’s professional negligence.

61.  The loss for which damages could be awarded must be caused by, and be not too remote a consequence of LHK’s professional negligence, be it a breach of contractual duty or a tort.

62.  Ms Chua was also under a duty to mitigate her loss and failure to discharge such a duty would entail a reduction in the damages awarded.

63.  Mr Merry argues that Ms Chua could have occupied the property as she had informed ICBC or could have rented out the property anyway without obtaining the legal title from Hentron.

64.  Despite the stipulation in the mortgage deed to the contrary, clearly Ms Chua would have been able to obtain permission from ICBC to let out the property. Her evidence to that effect was not challenged. Moreover, we also take the view that it was unrealistic to expect Ms Chua to be able to successfully let out the property in the light of Hentron’s unreasonable attitude and the prevailing litigation.

65.  Ms Chua’s causes of action against LHK were different from those against Hentron and the bases of the assessment of damages would not be the same. Ms Chua succeeded against Hentron on a contractual claim and against LHK on negligence. The loss of 28-month rent might be within Hentron’s contemplation when it refused to complete and refused to allow Ms Chua to rent out the property. However, such a loss might not be reasonably foreseeable arising out of LHK’s negligence.

66.  Ms Chua’s case against Hentron and LHK should be separately and independently dealt with. We see no valid basis for the judge just to order LHK to indemnify Ms Chua for the damages, interest and costs that Hentron failed to pay or to make any shortfall without finding LHK also primarily liable to Ms Chua.

67.  The judge should have assessed Ms Chua’s damages recoverable from LHK based on his professional negligence.

68.  Nevertheless, the primary issue we have to decide is whether the loss of the 28-month rent was reasonably foreseeable arising out of LHK’s negligence.

69.  The classic statement on foreseeable damages can be found in the judgment of Viscount Simonds in Overseas Tankship (UK) v Morts Dock and Engineering Co (The Wagon Mound) [1961] AC 388 at p 422-423:

“It does not seen consonant with current ideas of justice or morality that for an act of negligence, however slight or venial…, the actor should be liable for all consequences, however unforeseeable and however grave, so long as they can be said to be ‘direct.’ It is a principle of civil liability, subject to qualifications which have no present relevance, that a man must be considered to be responsible for the probable consequences of his act. To demand more of him is too harsh a rule, to demand less is to ignore that civilised order requires the observance of a minimum standard of behaviour.”

70.  Ms Lisa Wong, counsel for Ms Chua argues that LHK cannot deny that Ms Chua’s damages were caused by his negligence. She further submits that LHK cannot raise the issues of the remoteness of damages and Ms Chua’s failure to mitigate, as those issues had not been pleaded.

71.  The duty to mitigate loss imposes upon the plaintiff a duty to act reasonably to reduce the extent of the damages as “…the plaintiff…cannot recover for a loss avoidable by reasonable action on his own part, because, if he could reasonably have avoided it, it would not be regarded as caused by the wrongdoer” (per Robert Goff J in Koch Marine Inc v D’Amica Societa di Navigatione, The Elena d’Amico [1980] 1 Lloyd’s Rep. 75).

72.  “The criterion for reasonableness, stated concisely in the words of James L.J. in Dunkirk Colliery Co v Lever (1878) 9 Ch D 20, which were cited with approval by Viscount Haldane in British Westinghouse Co v Underground Ry [1912] AC 673, is that the claimant is not ‘under any obligation to do anything other than in the ordinary course of business’. This terminology, with its reference to business, is geared more to contract than to tort, and, although most of the cases are contract cases, it is better, in order to include tort, to speak simply of the ordinary course or of the ordinary course of events.” (McGregor on Damages para. 7-067)

73.  The issue of mitigation of loss must be properly raised and proved by a defendant. LHK never alleged in his defence that Ms Chua had failed to mitigate her loss. The steps suggested by Mr Merry that she should have taken in mitigation of loss, such as application for summary judgment to avoid delay, self-occupation of the property or refurbishing and letting the property against the will of Hentron, were never raised and the judge had made no findings thereon. LHK cannot raise such an issue on appeal.

74.  Ms Wong relies on the following paragraph of Jacob & Goldrein on Pleadings, Principles and Practice (1990), p. 136:

“Positive averments as to a loss – to be pleaded in defence If the defendant intends to raise at trial any question as to the causation or remoteness of the damage alleged, he must give fair warning of his intention to do so and such allegation should be specifically raised in the defence.”

75.  In a defence of failure to mitigate where the defendant agrees that his negligence caused the damage but asserts that there are reasonable steps that the claimant has failed to take to mitigate the loss, the defendant must raise and prove the issue.

76.  On the other hand, the claimant has the onus of proving damages, and that such damages are attributable to the defendant’s negligence. The claimant must prove that the damages are reasonably foreseeable.

77.  In Bristol and West Building Society v Mothew [1998] Ch 1, the Court of Appeal had to deal with the question of damages recoverable from a solicitor who gave incorrect advice or information in a conveyance transaction. The court held that the plaintiff must prove that it had relied on the solicitor’s report in advancing the loan to establish the causal link between the solicitor’s negligence and the loan, and that the loss was attributable to the solicitor’s negligence. Millett L.J. said at p 12 of the judgment:

“It does not, however, follow from the fact that the defendant’s negligent statements caused the society to make the mortgage advance that the whole of the society’s loss is attributable to his negligence. Having regard to the date of the advance, some part at least of the society’s loss may well be attributable to the fall in the property values which had occurred by the time that it was able to sell the property…

Accordingly, in this class of case the plaintiff must prove two things: first, that he has suffered loss; and , secondly, that the loss fell within the scope of the duty he was owed. In the present case the society must prove what (if any) loss was occasioned by the arrangements which the purchasers had made with the bank.”

78.  McGregor on Damages makes a similar observation at paragraph 6-003:

“These various dicta were considered by Lord Merriman P. in The Guildford [1956] P. 364, and, without attempting to resolve the divergence of opinion in the House of Lords, he favoured the view that it was the claimant’s onus….Since a claimant must prove his case, it seems undoubtedly correct that he must prove for which items of damage he may properly recover. Although these cases only deal with tort, with causation, and with the consequences following upon a new intervening act which is generally that of the claimant, there is no reason why the rule that the onus of proof is on the claimant should not apply to all issues of remoteness.”

79.  In his re-re amended Defence, LHK in para. 14A put forward the following:

“…It is denied that the Plaintiff is entitled to her alleged loss and damage against the 2^nd Defendant. If, which is denied, the Plaintiff has suffered any loss and damage as alleged at Paragraph 25A of the re-re-re amended Statement of Claim or at all, the 2^nd Defendant denies that they are caused by the 2^nd Defendant (which is denied) and avers that the same are caused or contributed to by the 1^st Defendant’s and or its agents’ acts or omissions and are to be recovered from the 1^st Defendant, if at all. Further, insofar as the Plaintiff failed to recover such loss and damage from the 1^st Defendant, and in any event, they cannot seek to recover the same from the 2^nd Defendant.”

80.  The issue of causation or remoteness of damage had been properly raised and it fell upon Ms Chua to prove that the rental loss of 28 months was attributable to LHK’s negligence and was reasonably foreseeable, and therefore recoverable.

81.  In a case of a solicitor’s negligence in a conveyancing transaction leading to a repudiation of the agreement and ensuing litigation, the loss of the use of the property by the purchaser, be it for self-use or for rental purpose, is common, if not inevitable. Twenty-eight months is not a short period to allow a flat to remain unoccupied. However, the reality of litigation is that it takes time.

82.  Ms Chua did not obtain judgment from the judge until towards the end of December 2004, thirty months from the scheduled completion time. The judge had made allowance for the time required to rent out the property.

83.  We are not persuaded that the 28-month loss of rental was unforeseeable. Such loss, though contributed to by Hentron’s unreasonable attitude, was attributable to LHK’s negligence and is thus recoverable from LHK.

The Deductions

84.  This issue has caused us considerable anxiety and difficulty. Ms Chua had the burden of proving her loss and if the notional rental could only be earned after incurring certain expenses, then those expenses should be deducted from the notional rental to arrive at the damages to be awarded to Ms Chua.

85.  There was evidence that the property needed to be refurbished before it could be let out and the extent and costs of such refurbishment varied. There were quotations of about $500,000 for extensive refurbishment requested by a potential tenant who was willing to pay a substantially higher rent.

86.  It was certainly possible that Ms Chua might have to pay ICBC a higher interest rate to obtain permission to rent out the property, to pay commission to estate agents to secure a tenant, and to pay property tax on the rental income.

87.  However, none of those matters was canvassed at trial. Instead, the parties agreed on the open market rental of the property and invited the judge to assess damages on such agreement. LHK did not raise and Ms Chua was not questioned on any of the alleged deductions.

88.  The agreed open market rental of the property could be interpreted as the rental that could be obtained with no or little refurbishment. And if the matter had been raised at trial, there could have been explanations leading to the conclusion that Ms Chua might not have to pay additional interest, commission or property tax.

89.  Ms Chua had fairly premised her claim on the total loss of rental and the parties had agreed on the open market rental. If LHK alleged that certain deductions should be made, he should have raised the issues at trial so that the judge could deal with and adjudicate on the issues. In this connection, we have sympathy with Ms Wong’s submission that Mr Merry was attempting to conduct a quantum assessment within the appellate context, these issues not having been canvassed in the court below.

90.  The appellate court should, of course, only interfere with the award of damages by a judge if the award is outside the permissible range or if “the judge has acted upon a wrong principle of law, or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damages suffered” (per Wright LJ in Davies v Powell Duffryn Collieries Ltd [1942] AC 601 at p 607).

91.  On the evidence before us, we are not persuaded that the damages awarded to Ms Chua are outside the permissible range. We see no other basis for interfering with such damages.

Indemnity Costs

92.  The issue of indemnity costs was examined by the Court of Final Appeal in Town Planning Board v Society for Protection of the Harbour (No 2) [2004] 2 HKLRD 95. The Court of Final Appeal held that “an award of indemnity costs was not confined to cases brought with an ulterior motive, or for an improper purpose, or where there was some deception or underhand conduct on the part of the losing party. It was undesirable to attempt to define the circumstances in which such order would be made, and the discretion was not be fettered beyond the requirement that indemnity costs must be ‘appropriate’.”

93.  The Court of Final Appeal also endorsed the proposal that the following general principle in relation to the award of costs applied with equal force to the exercise of the discretion to award indemnity costs:

“…the grounds [upon which costs are awarded] must be connected with the case. This may extend to any matter relating to the litigation and the parties’ conduct in it, and also to the circumstances leading to the litigation, but no further.”

94.  The judge’s reason for awarding indemnity costs was that LHK’s professional negligence was so obvious that he should have admitted his liability at a much earlier stage.

95.  Ms Wong emphasizes that LHK had pursued an ill-advised defence, which was fought unreasonably. She relies on the unreported decision in Disney v Plummer in which Kerr LJ made the following comment:

“…I wholeheartedly agree with the course which the judge took in relation to this ill-advised and – if I may say so – stupidly conducted piece of litigation. It is the sort of robust attitude which should be taken to pieces of litigation of this kind. The defendants still suffer, even when they win. But they should at any rate have been given such assistance as can be provided by the Rules. I do not accept, as Mr. Mackay submitted, that indemnity costs are only appropriate if there is some deception or underhand conduct on the part of the losing party, but not if the litigation is merely fought bitterly or even unreasonably. In the latter type of cases judges can still exercise their discretion under O.62 r3(4)(c).”

96.  We have been taken to evidence relating to how LHK handled the transaction in question and in this regard we share the sentiment expressed by Ms Wong.

97.  The indemnity costs order against LHK is a harsh order and we probably would not have made such an order ourselves. However, it is a discretionary matter for the judge and we cannot conscientiously say that there was no basis upon which the judge could have made the order or that it is not “appropriate”.

98.  That being the case, we have concluded that we should not interfere with the judge’s discretion.

Conclusion

99.  LHK’s appeal against the award of damages to Ms Chua is also dismissed with costs to be taxed if not agreed. The costs order is an order nisi and will be made absolute 14 days after the handing down of this judgment.