SAND AIRE LTD v. JIN ZHANJIE AND ANOTHER

HCA 643/2019

[2020] HKCFI 3015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 643 OF 2019

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DECISION

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INTRODUCTION

1.  This is the 1^st Defendant’s appeal against the following decisions of Master Dick Ho:

(1)  The decision dated 4 September 2019 (the “Summary Judgment Decision”) to grant summary judgment against the 1^st Defendant for the sum of RMB270,000,000 together with interest and costs; and

(2)  The decision dated 20 January 2020 (the “Striking Out Decision”) to strike out the counterclaim against the Plaintiff as set out in the Defence and Counterclaim.

2.  The present action concerns a written settlement agreement (the “Settlement Agreement”) under which the 1^st and 2^nd Defendants shall pay RMB 270,000,000 (the “Settlement Sum”) to the Plaintiff in full and final settlement of all and any claims arising out of, in connection with or in respect of the 7% bonds (the “7% Bonds”) issued by the 2^nd Defendant, which in turn were issued in exchange for the 12% bonds (the “12% Bonds”) issued by the 2^nd Defendant’s sister company.

3.  It is pertinent to note that there is no dispute that the Settlement Agreement is valid and the Plaintiff is entitled to the Settlement Sum which remains outstanding.

4.  The 1^st Defendant first pleads an oral agreement (the “Oral Agreement”) made between the Plaintiff, himself and China Resources & Investment Vehicle Limited (“CRI”), to set-off the Plaintiff’s claim for the Settlement Sum. The details of the Oral Agreement will be discussed below.

5.  Secondly, the 1^st Defendant contends that the Plaintiff entered into the Settlement Agreement only as agent for the holders of the 7% Bonds and therefore has no standing to sue.

6.  In relation to the issue of standing to sue, the bondholders have, by summons dated 10 August 2020 (the “Joinder Summons”), applied before this Court to be joined as co-plaintiffs in this action. I see no serious objections for an order to be made in terms of the Joinder Summons. Mr Lam SC, for the 1^st Defendant, has no objection to the granting of an order in terms of the Joinder Summons. He also sensibly agreed that given that the bondholders are joined as co-plaintiffs in the present action, there cannot be any issue on the standing to sue.

7.  As far as I see it, the key issue in the present appeals is the sustainability and credibility of the Oral Agreement.

MATERIAL FACTS

8.  The Plaintiff is an investment firm founded in 1996, and is authorised by the Financial Conduct Authority in the United Kingdom to carry out a range of investment activities, including advising on investments, managing investments, and dealing in investments as agent. All investments made by the Plaintiff on behalf of its clients as investment manager are required to follow an internal review and approval process.

9.  The 1^st Defendant is the ultimate sole shareholder of CRI, which is the 2^nd Defendant’s sole shareholder from 26 March 2015 until present and was the 2^nd Defendant’s sole director until 29 May 2019.

10.  CRI was also the sole shareholder of Cre8tive Capital China Limited (“CCC”). CCC and the 2^nd Defendant were the issuers of the 12% Bonds and the 7% Bonds respectively. CRI also has a number of subsidiary companies incorporated in the People’s Republic of China, Hong Kong and the BVI.

11.  In December 2009, the Plaintiff on behalf of its clients acquired a total of 9,072,450 redeemable preference shares in CRI (the “CRI Shares”).

12.  On 22 August 2013, the Plaintiff on behalf of its clients sold the CRI Shares (held under the name of custodian or nominee companies) to Rich Concept Assets Management Limited (“Rich Concept”), a company of the 1^st Defendant, at a total consideration of GBP22,484,488, pursuant to various share transfer agreements dated 19 August 2013 made between the custodians or nominee companies as seller and Rich Concept as buyer.

13.  The only other transaction that the parties entered into in 2013, after the repurchase of the CRI Shares by the 1^st Defendant, was the Plaintiff’s subscription of the 12% Bonds in the total sum of RMB353,000,000 on behalf of its clients.

14.  The 12% Bonds, which bore interest at the rate of 12% p.a. payable quarterly, with a maturity date on 5 August 2018, were issued by CCC on 5 August 2013 on the Euro MTF Market of the Luxembourg Stock Exchange.

15.  The terms and conditions of the 12% Bonds can be found in Section 4 of the prospectus of the 12% Bonds dated 5 August 2013 (“Prospectus”). Clause 2.3 of the 12% Bonds provides that CCC shall apply the proceeds from the issuance of the 12% Bonds as follows:

(1)  RMB200,000,000 shall be applied towards the purchase of the shares of Virtue Investment Holdings Limited (“Virtue Investment”). Virtue Investment was the owner of an office building in Hong Kong known as Hongkong Offshore Centre. It was owned by a BVI company, whose ultimate beneficial owner was the 1^st Defendant.

(2)  RMB153,000,000 shall be applied towards the purchase of 45% shares of Malim Enterprise (HK) Limited (“Malim Enterprise”). Malim Enterprise was the owner of a hotel located in Changchun, the PRC known as Maxcourt Hotel.

16.  It is also pertinent to note that pursuant to Clause 2.2 of the 12% Bonds, the aggregate principal amount of the 12% Bonds might be increased with a further RMB147,000,000 within 1 month of the issue date at the option of the issuer, i.e. CCC.

17.  It is common ground that CCC did not exercise this over-allotment option within the 1 month period or otherwise.

18.  On 4 March 2015, CCC issued a Disclosure notifying the holders of the 12% Bonds of the occurrence of the following events of default:

(1)  RMB200,000,000 of the bond proceeds was not applied towards the purchase of the shares of Virtue Investment.

(2)  RMB153,000,000 of the bond proceeds was not applied towards the purchase of the 45% shares of Malim Enterprise.

(3)  Instead, of the total amount of RMB353,000,000, RMB126,885,000 was used to acquire the parent company of Virtue Investment from the 1^st Defendant; whilst RMB240,000,000 was lent to the 1^st Defendant as an unsecured and interest-free loan.

19.  On 16 April 2015, the 2^nd Defendant issued an exchange offer (revised on 15 June 2015) (“Exchange Offer”) to exchange the 12% Bonds for the 7% Bonds, which had a total amount of RMB401,429,000 with maturity date on 5 August 2018, and which bore interest at the rate of 7% p.a. payable half-yearly.

20.  The 7% Bonds were guaranteed by 3 property-holding companies ultimately owned or controlled by the 1^st Defendant, namely, Sanjin Electronic Group Company Limited (“Sanjin”), Beijing Dingyuan Changtong Investment Company Limited (“Dingyuan”), and Virtue Investment pursuant to 3 Deeds of Guarantee.

21.  Mr Dawes SC reminded this Court that Clause 2.2 of the Exchange Offer provides that the 7% Bonds were issued in full and final settlement of the 12% Bonds.

22.  On 16 June 2015, the Exchange Offer was accepted and the 7% Bonds were issued by the 2^nd Defendant.

23.  The first coupon of the 7% Bonds was due on 30 September 2015. The 2^nd Defendant failed to pay on time. It was only paid on 12 January 2016.

24.  The second coupon of the 7% Bonds was due on 31 March 2016. The 2^nd Defendant failed to pay it and has since failed to pay all subsequent coupons.

25.  The parties thereafter entered into rounds of negotiation in connection with the 2^nd Defendant’s default on the 7% Bonds.

26.  On 4 April 2017, the Plaintiff and the 1^st Defendant entered into a memorandum of understanding (“MOU”), under which the parties agreed that the settlement sum would be RMB270,000,000, and the 1^st Defendant would pay RMB50,000,000 to the Plaintiff out of his own funds and procure the sale of the 3 real properties owned by Sanjin, Dingyuan and Virtue Investment in order to pay the balance.

27.  On 7 November 2017, the Plaintiff (on behalf of the 7% bondholders), the 1^st Defendant and the 2^nd Defendant entered into the Settlement Agreement. The 1^st and 2^nd Defendants were legally represented by Han Kun Law Offices in the negotiation and execution of the Settlement Agreement.

28.  Under the Settlement Agreement,

(1)  The 1^st and 2^nd Defendants would be jointly and severally liable to pay the Settlement Sum in full and final settlement of all and any claims arising out of, in connection with, or in respect of the 7% Bonds, the Exchange Offer and the Deeds of Guarantee (Clauses 2.1, 6.4(a));

(2)  On or before 28 February 2018, the 1^st Defendant shall pay RMB50,000,000 out of his own funds to the Plaintiff (Clause 2.1(a));

(3)  The 1^st and 2^nd Defendants would sell or procure the sale of the 3 real properties owned by Sanjin, Dingyuan and Virtue Investment and pay the proceeds to the Plaintiff (Clause 2.1(b));

(4)  The balance of the Settlement Sum shall in any event be paid by 30 November 2018 (Clause 2.1(c)).

29.  It is also common ground that the 1^st and 2^nd Defendants have failed to pay the Settlement Sum or any part thereof to the Plaintiff. As such the Plaintiff legitimately takes out the present action and applies for summary judgment against the 1^st Defendant.

THE ORAL AGREEMENT

30.  The 1^st Defendant’s pleaded oral agreement is set out in his Defence and Counterclaim dated 22 May 2019. The following paragraphs are material:

“19. In about July 2013 (during the time when CCC was applying to list its bonds on the Luxembourg Stock Exchange), with an aim to convert its interest in CRI into listed bonds, Mr. Hendrics on behalf of the Plaintiff relayed the following messages to the 1^st Defendant through Mr. Levine:

(1) The Plaintiff requested the 1^st Defendant to purchase the CRI Shares;

(2) The Plaintiff promised that it would re-invest the entire amount of proceeds of sale of the CRI Shares into the PRC Projects;

(3) The Plaintiff promised that it would make a further investment of RMB500,000,000 into the PRC Projects;

(4) The Plaintiff would not make any further investment into the PRC Projects unless the 1^st Defendant agrees to purchase the CRI Shares.

…

21. In about late July 2013, Mr. Levine on behalf of the 1^st Defendant and CRI and Mr.Hendrics and/or Mr. Offergelt on behalf of the Plaintiff entered into an oral agreement (“the Agreement whereby the parties agreed that:

(1) The 1^st Defendant shall (whether by himself or his corporate vehicle) purchase the Plaintiff’s CRI Shares;

(2) Upon selling the CRI Shares to the 1^st Defendant, the Plaintiff shall re-invest the entire proceeds of sale into the PRC Projects;

(3) The Plaintiff shall invest an additional RMB500,000,000 into the PRC Projects, whether by subscribing for the bonds to be listed on the Luxemburg Stock Exchange or by other means.

22. It is an implied terms of the Agreement that the Plaintiff shall perform its obligations pleaded in paragraph 21(2) within a reasonable time, and in any event no later than 1 week after it received the proceeds of sale of the CRI Shares.

23. It is an implied term of the Agreement that the Plaintiff shall perform its obligations pleaded in paragraph 21(3) above within a reasonable time, and in any event no later than 5 September 2018, being 1 month after the issue date of the bonds (see paragraph 24 below)

…

27. However, in breach of the term pleaded in paragraphs 21(3) and 23 above, the Plaintiff failed to invest RMB147,000,000 (being RMB500,000,000 – RMB353,000,000) into the PRC Projects by 5 September 2013, whether by subscribing for the Bonds or at all.

28. Further, in breach of the term pleaded in paragraphs 21(2) and 22 above, the Plaintiff failed to re-invest any part of the proceeds of sale of the CRI Shares it received (i.e. GBP22,484,488) into the PRC Projects, whether by 1 week after it received the proceeds of sale or at all.”

31.  PRC Projects is defined to mean “the investment projects held by CRI include the ownership and operation of coal mines and water plants, sale of timber, real estate investment, designing of mobile phone application, provision of financing service and provision of food and beverage service.” (See §6 of the Defence and Counterclaim)

32.  In §29 of the Defence and Couneterclaim, the 1^st Defendant pleads his loss as follows:

“As a result of the Plaintiff’s breaches of the Agreement as pleaded in paragraphs 27-28 above, the 1^st Defendant, CRI and some of the corporate vehicles holding the PRC Projects had to obtain the following loans to meet the Financial Needs. The 1^st Defendant provided personal guarantee for some of the loans. The 1^st Defendant paid the interests of all of the loans personally. As of the date of the Defence and Counterclaim, the 1^st Defendant had paid interests in the sum of at least RMB185,674,307.”

SUMMARY JUDGMENT – ASSESSMENT

33.  The legal principles in relation to an application for summary judgment are well established and I do not propose to rehearse them here. (See Hong Kong Civil Procedure 2020, Vol.1, at §§14/4/4, 14/4/9)

34.  I am of the view that the Oral Agreement is both unsustainable as a matter of pleading and not capable of being believed.

35.  First, in relation to the additional investment of RMB500,000,000 into the PRC Projects, the 1^st Defendant’s claim is the failure to invest the balance of RMB147,000,000. However, as set out in the 12% Bonds, CCC had the option to issue further bonds up to the amount of RMB147,000,000 within 1 month from 5 August 2013, i.e. by 5 September 2013. The fact is that CCC had never issued any further bonds.

36.  As to by other means, the 1^st Defendant has not offered or even suggested how the Plaintiff should invest another RMB147,000,000 into the PRC Projects and if so on what terms. That should be the end of this asserted obligation under the Oral Agreement.

37.  Secondly, as to the reinvestment of the entire proceeds of the sale of the CRI Shares into the PRC Projects, I am of the view that even if such an oral agreement exists, the same is unenforceable. It is at most an agreement to agree. Like the 12% Bonds, there must be some concrete terms before there can be an enforceable agreement. For example, what is the rate of return? What is the duration of the investment? Mr Lam SC submitted that this is an umbrella agreement. Whatever label one may deploy, the fact remains that even if there is such an umbrella agreement, the essential terms of any reinvestment have to be agreed before the same is capable of being enforced.

38.  I do not see how the plea of “upon selling the CRI Shares to the 1^st Defendant, the Plaintiff shall re-invest the entire proceeds of sale into the PRC Projects” is capable of being enforced. There is no plea as to any specific agreement to reinvest in which PRC Projects and on what terms.

39.  Mr Dawes SC is right in submitting that the Plaintiff obviously would not invest by interest-free loans. What was intended to be the “other” means of investment? If the investment was to be made by way of loans, what would be the interest or coupon rate? I agree that it makes little sense for a professional investment firm like the Plaintiff to contractually commit to a very substantial investment by such undefined and vague terms. The Plaintiff is a regulated entity and investments on behalf of clients had to go through a review and approval process. I agree that whether the 1^st Defendant had knowledge of the Plaintiff’s need to obtain approval is beside the point. The point is that as a matter of inherent probability and factual assessment, the Plaintiff as a regulated investment firm would have never entitled into the Oral Agreement with the 1^st Defendant or CRI without the necessary approval.

40.  The same vice applies to the investment of an additional sum of RMB500,000,000 into the PRC Projects. The investment into the 12% Bonds has detailed terms capable of being enforced. But for the existence of such detailed terms, I am of the view that the same is unenforceable as a matter of law.

41.  Thirdly, it is clear to me that the 1^st Defendant is not entitled to claim RMB185,674,307 as his loss. It is not even pleaded that the reinvestment and the additional investment of RMB500,000,000 should have a zero rate of return. Without an agreed rate of return, it is difficult to see how the 1^st Defendant could start to claim for the entire sum of his interest payments under various loan agreements. Mr Lam SC for the 1^st Defendant submitted that this is a matter for trial and further discovery. I disagree. The duty rests on the 1^st Defendant to condescend on particulars as to the precise loss that he has suffered at the present stage.

42.  Fourthly, I am of the view that the Oral Agreement is not capable of being believed. First and foremost, on the 1^st Defendant’s case, the Plaintiff would have breached the Oral Agreement by September 2013. However, there was no even one piece of documentary evidence which can point to the fact that the 1^st Defendant has ever complained about the breaches of the Oral Agreement by the Plaintiff since September 2013.

43.  Given the fact that had the Oral Agreement really exists, the 1^st Defendant would have suffered loss or damages given the Plaintiff’s breaches, it defies common sense that the 1^st Defendant has not claimed for the same until the filing of the Defence and Counterclaim dated 22  May 2019. The limitation period could have easily expired had the present action been commenced after 5 September 2019. There is the conspicuous absence of any letter of demand for the loss or damages that the 1^st Defendant suffered as a result of the Plaintiff’s breaches of the Oral Agreement.

44.  I find it extremely odd that for a period of nearly 6 years, there is not even one letter of complaint or demand to the Plaintiff mentioning about the existence and breaches of the Oral Agreement. This is against the background of the 1^st Defendant’s pleaded case that he has to personally borrow various loans to militate against the Plaintiff’s breaches of the Oral Agreement. I am of the view that this fact points to the inherent improbability and incredibility of the Oral Agreement. 

45.  Although in paragraph 36 of the 1^st Defendant’s affirmation, he deposed that he did raise the issue of the breaches of the Oral Agreement orally with the Plaintiff, there is no credible explanation as to why following the 1^st Defendant’s disappointment, he has not taken any action against the Plaintiff. I should also mention that such oral discussions were denied and rejected by Mr Offergelt in §22 of his affirmation.

46.  Further, I agree that on the 1^st Defendant’s own case, the breach of the Oral Agreement must be a serious matter to the 1^st Defendant and CRI, given the financial needs in the PRC Projects. In such circumstances, it is inconceivable that the failure of the Plaintiff to honour the Oral Agreement was not brought up for discussion or documented after the 2^nd Defendant defaulted on the 7% Bonds and the parties entered into negotiation which resulted in the signing of the Settlement Agreement.

47.  The uncontradicted evidence is that:

(1)  When the 2^nd Defendant defaulted in paying the first coupon on 30 September 2015, it claimed to the Plaintiff that due to restriction of foreign exchange in the PRC, money transfer would take more time than expected but it would make the payment as soon as it could. There was no reference to the Oral Agreement in the parties’ correspondence, or the Plaintiff’s breaches thereof.

(2)  After the 2^nd Defendant defaulted in paying the second and subsequent coupons on 31 March 2016, there was likewise no reference to the Oral Agreement or the Plaintiff’s breaches thereof, whether in the MOU, the Settlement Agreement, or otherwise.

48.  The 1^st Defendant has provided no explanation as to why the Oral Agreement was not raised or documented earlier, but was only raised for the first time when he is sued by the Plaintiff.

49.  I agree that the inevitable conclusion is that the Oral Agreement simply did not exist.

50.  Insofar as the 1^st Defendant’s reliance on the Indicative Term Sheet is concerned, I agree that the existence of such a document actually militates against the 1^st Defendant’s case. It shows that had there been binding agreement on the investment of funds of the Plaintiff’s clients in CRI’s PRC Projects other than the two specific real estate projects, there must have been some documentation to that effect.

51.  Moreover, Mr Dawes SC also submitted that the maker of the Oral Agreement on behalf of the 1^st Defendant and CRI, Mr Levine, has not given an affidavit. The assertions about the existence of the Oral Agreement are no more hearsay. The 1^st Defendant’s case is that Mr Levine is not contactable. I agree that this makes the 1^st Defendant’s case even more unbelievable. Mr Lam SC submitted that Mr Levine might be contactable if this case proceeds to trial. I am not entirely sure that the Court should proceed on this speculative basis.

52.  In contrast, both Mr Hendrics and Mr Offergelt have given affidavit evidence to deny the existence of the Oral Agreement. Other than agreeing to subscribe to the 12% Bonds in the amount of RMB353,000,000 which shall be invested into the two specific real estate projects, the Plaintiff never agreed that it would invest additional funds from its clients (GBP22,484,488 plus RMB 147 million) to meet the financial needs of unspecified PRC Projects. The Plaintiff’s case sits perfectly well with the documentary evidence and undisputed facts.

53.  In addition, Mr Dawes SC also submitted that it is unclear where and how (e.g. whether during a call or physical meeting) the Oral Agreement was entered into in late July. It is also unclear whom on behalf of the Plaintiff made the Oral Agreement. The suggestion that “Mr Hendrics and/or Mr Offergelt” entered into the contract on the Plaintiff’s behalf creates more confusion. The 1^st Defendant has failed to condescend to the necessary particulars. I am of the view that there is force in such submissions.

54.  Finally, I agree that the contemporaneous documents do not sit well with the existence of the Oral Agreement:

(1)  It is the 1^st Defendant’s case that under the Oral Agreement, the Plaintiff would invest RMB500,000,000 and GBP22,484,488 into the PRC Projects. However, regarding the RMB353,000,000 that the Plaintiff’s clients have actually invested by way of subscribing the 12% Bonds, the sale proceeds were to be applied to two specific projects pursuant to the terms of the bonds, one of which is in Hong Kong (i.e., the Hong Kong Offshore Centre) but not in the PRC.

(2)  It was envisaged that CCC might exercise the option to increase the principal amount of the 12% Bonds for a further RMB147,000,000 within 1 month of the issue date. Had the Oral Agreement existed whereby the Plaintiff or the Plaintiff’s clients were obliged to invest this additional sum, there must have been some oral or written discussion in respect of the exercise of the option. The 1^st Defendant has failed to provide any evidence of the same.

(3)  The sale of the CRI Shares was not bundled with the subscription of the 12% Bonds. In an email dated 7 August 2013, the Plaintiff’s portfolio manager described the sale of the CRI Shares as a “standalone transaction”. Further, a client of the Plaintiff in fact decided not to re-invest the potential sale proceeds of its CRI Shares into the 12% Bonds.

(4)  Apart from the 1^st Defendant’s bare assertions, there is no evidence in support of the financial needs of CRI or its subsidiaries, which on the 1^st Defendant’s case should be in the vicinity of RMB500,000,000 and GBP22,484,488. I have not lost sight that the proceeds of the 12% Bonds were not applied for the stated purposes pursuant to the terms of the bonds. RMB224,000,000 was simply lent to the 1^st Defendant by CCC as interest-free loan. This constituted an event of default under the 12% Bonds.

55.  Mr Lam SC submitted that the Oral Agreement is part of a capital re-structuring as evidence in the email dated 7 August 2013 and it makes commercial sense for otherwise there was no need on the part of the 1^st Defendant to repurchase the CRI Shares from the Plaintiff. At a very general level, Mr Lam SC might be correct. However, this is far from satisfying the Court that the parties have reached a binding and enforceable oral agreement. The 12% Bonds might be part of the capital restructuring with an option which CCC chose not to exercise. The Plaintiff’s investment into the 12% Bonds is a very substantial investment.

56.  As I have come to the view that the Oral Agreement as pleaded is unsustainable and incredible, there is no need for me to deal with the arguments on the 1^st Defendant’s set-off defence.

57.  For the purpose of completeness, it suffices for me to say that I agree with Mr Dawes SC’s constructions of Clause 2.1 of the Settlement Agreement for reasons as set out in paragraph 45 of the Plaintiff’s Skeleton Submissions and that the 1^st Defendant has failed to show with sufficient particulars the causal connection between the pleaded breaches of the Oral Agreement and his interest payments under various loans taken out by the 1^st Defendant, CRI and CRI’s subsidiaries. I note that some of the loans were dated before the Oral Agreement. Hence, I do not find it necessary to deal with the issue of reflective loss. 

58.  For all the reasons stated above, the appeal against the Summary Judgment Decision is dismissed.

STRIKING-OUT DECISION – ASSESSMENT

59.  By Summons dated 31 July 2019, the Plaintiff applied for the 1^st Defendant’s counterclaim set out in the 1^st Defendant’s Defence and Counterclaim filed on 22 May 2019 to be struck out on the ground that it discloses no reasonable cause of action against the Plaintiff.

60.  The parties have engaged in substantial submissions on whether as a result of the summary judgment, the 1^st Defendant is barred by issue estoppel from raising the Oral Agreement as his counterclaim. The argument is if the 1^st Defendant is barred, then his counterclaim should be struck out as well.

61.  I do not find it necessary to deal with this issue as I have already ruled that the Oral Agreement as pleaded is unsustainable. For the reasons stated above, I am of the view that it is plain and obvious that the counterclaim should be struck out. Mr Lam SC for the 1^st Defendant fairly agreed that if this Court comes to the view that the Oral Agreement is plainly and obviously bad and unsustainable, it is right that the Court should strike it out.

DISPOSITION 

62.  For all the reasons stated above, both appeals are dismissed.

63.  I also make a costs order nisi that the 1^st Defendant is to pay the costs of and occasioned by both appeals to the Plaintiff, to be taxed on a party to party basis and with a certificate for two counsel. Such costs order nisi will be made absolute within 14 days from the day hereof unless an application to vary the same is taken out within the 14 days period.

64.  For the Joinder Summons, I make an order in terms of the Summons dated 10 August 2020 with a costs order nisi that the applicants are to pay the costs to the 1^st Defendant, to be taxed on a party to party basis, if not agreed. Such costs order nisi will be made absolute within 14 days from the day hereof unless an application to vary the same is taken out within the 14 days period.

65.  Finally, it remains for me to thank Mr Dawes SC and Mr Man for the Plaintiff, Mr Lam SC, Ms Ho and Mr Cheung for the 1^st Defendant for their helpful assistance.