CHAIROD MAHADUMRONGKUL AND ANOTHER v. BANK OF CREDIT & COMMERCE (HONG KONG) LTD

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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1. This is a claim by the Plaintiffs against the Defendant by Originating Summons issued on 23rd February 1995. On 6th November 1995, Mr. Justice Rogers gave leave to the Plaintiffs to file and serve an Amended Originating Summons. Eventually at the hearing I gave leave to the Plaintiffs to file and serve a Re-Amended Originating Summons making certain minor amendments.

THE PARTIES

2. The Defendant was a limited company incorporated and carrying on the business of a licensed bank in Hong Kong. Following the collapse of its overseas parent company. Bank of Credit and Commerce International S.A., the Defendant ceased taking deposits and closed its offices on 8th July 1991. On the same date the Commissioner for Banking assumed control of the Defendant. On 17th July 1991, a Petition to wind up the Defendant in the public interest was presented by the Government and a Provisional Liquidator and Special Managers were appointed. An Order for the winding up of the Defendant was made by the Court on 2nd March 1992 and a Regulatory Order was made on 5th March 1992.

3. The Plaintiffs are husband and wife and Thai citizens. The 1st Plaintiff controls four Thai companies by the names of Prime Box Manufacturing Limited ("Prime Box"), Serm Thamrong Company Limited ("Serm Thamrong"), Thamrong Cin Company Limited ("Thamrong Cin") and Prateep Thamrong ("Prateep Thamrong").

THE TRANSACTIONS

4. In order to avail themselves of advantages offered by the tax law in Thailand, the Plaintiffs and each of the four Thai companies entered into a series of back-to-back loan and deposit transactions with the Defendant. I shall examine and analyse the relevant documentation below. In short, the Defendant would make a fixed term loan of a certain sum of money to each of the four Thai companies. At the same time, the Plaintiffs would place two deposits with the Defendant, the larger deposit (called Deposit A) to cover the principal of the loan made to the Thai company and the interest payable on such loan and the smaller deposit (called Deposit B) to cover the spread in interest to be earned by the Defendant. The only benefit to be derived by the Defendant from out of each series of transactions was the spread in interest representing a fixed margin between the deposit rate payable to the Plaintiffs as depositors and the rate charged to each of the Thai companies as borrower. According to the 1st Plaintiff in his 1st Affirmation filed on 22nd February 1995 : "From the point of view of each of the parties concerned there would have been no question of the deposits being placed with the Defendant without the loan being made to the Thai Companies or of the Thai Companies borrowing from the Defendant in the absence of the deposits." As far as I can see, there is nothing in the evidence adduced by the Defendant to contradict this statement nor do I have reason to doubt its truth.

THE DOCUMENTS

5. The parties are agreed that each set of documents in relation to each of the Thai companies is practically identical to the next and therefore I need only examine and analyse one set of documents in detail. I do so now by looking at the documents relating to Prime Box. There are basically three documents.

6. First, by a letter dated 15th August 1989 from the Defendant to Prime Box ("the Facility Letter"), the Defendant confirmed its agreement to grant a loan facility of $60,000,000- to Prime Box upon and subject to the terms and conditions set out therein. So far as relevant to this case, they were as follows : -

7. The second document was one intituled "SECURITY OVER DEPOSIT in respect of THIRD PARTY OBLIGATIONS" also dated 15th August 1989 addressed by the Plaintiffs as the Depositor to the Defendant ("the Security Document") in which it was provided that, in consideration of the Defendant granting or continuing to grant credit facilities to Prime Box as the Customer, the Plaintiffs had deposited with the Defendant the sum of $61,500,000- as a continuing security for the punctual payment by Prime Box of all its debts owing to the Defendant. The brief particulars of the Deposit were set out in the Schedule thereto as : -

Clause 3.01 of the Security Document read as follows : -

"3.01 If the Customer has failed to pay any moneys hereby secured when due or if the Depositor is in default under any of the terms hereof or if the Customer or the Depositor is unable or admits inability to pay debts as they become due or in the event of any proceedings in or analogous to the bankruptcy, insolvency, winding-up or liquidation or composition of the Customer or of the Depositor or if legal process is levied or enforced against any assets of the Customer or the Depositor, you may, without demand, notice, legal process or any other action with respect to the Depositor, retain, apply or realise the Deposit or any part thereof, for your own benefit, at any time and in any way which you may deem expedient, free from and discharged from all trusts, claims, rights of redemption and equities of the Depositor in or towards payment and settlement of the moneys and liabilities referred to in Clause 1.01."

8. The third document was another letter dated 15th August 1989 addressed by the Defendant to the Plaintiffs ("the Agreement Letter"). The Agreement Letter had the following caption : -

The Agreement Letter began by making reference to the Facility Letter, the term loan of $60,000,000- granted to Prime Box and the Security Document. For the purpose of this judgment, it is necessary to set out a major part of the Agreement Letter in extenso as follows : -

"In consideration of your agreeing, at our request, to enter into the Security Document, we write to confirm the following : -

9. As I have mentioned above, the sets of documents in relation to the other three Thai companies were substantially in the same terms subject only to variations in the dates, amounts and account numbers.

EVENTS SINCE COMMENCEMENT OF WINDING UP

10. The winding up of the Defendant commenced on 17th July 1991 with the presentation of the Petition and the appointment of a Provisional Liquidator and Special Managers of the Defendant.

11. By a letter to the Provisional Liquidator dated 14th August 1991, Messrs. Deacons, the solicitors acting for the Plaintiffs and the That companies, demanded that the deposits made by the Plaintiffs and interest accrued thereon up to 8th July 1991 be repaid and offset against the loans to the Thai companies and interest accrued thereon also up to 8th July 1991.

12. Their reasoning was that "the deposits and the loans are inseparably linked such that performance of the Companies' obligations in respect of the loans is conditioned on the performance by you of your obligations in respect of the deposits" and that it was clear that the Defendant was no longer able to perform its obligations in respect of the deposits with effect from 8th July 1991. On their argument the balance in favour of the Plaintiffs should be in the sum of $7,561,589.73.

13. By a letter to Messrs. Deacons from the Defendant dated 4th October 1991, the latter enclosed a cheque in the sum of $500,000- with a statement of account as at 17th July 1991 in connection with the early interim distribution of 25% of the deposits of the Plaintiffs.

14. By letters addressed to each of the four Thai companies dated 6th July 1992, the Defendant demanded repayment in full of the indebtedness owing by each of them.

15. Subsequently, correspondence ensued between Messrs. Deacons and Messrs. Johnson Stokes & Master, the solicitors acting for the Defendant, in relation to this matter, up to at least the end of 1994, in which both firms of solicitors put forward legal arguments in advancing their respective clients' cases.

16. By a letter to Messrs. Deacons dated 8th October 1993, Messrs. Johnson Stokes and Master said : -

"We are instructed to inform you that, in accordance with the facility documents entered into by our respective clients, that BCCHK will set off the relevant deposit 10 days from the relevant "due date" (i.e., the days upon which BCCHK made demand upon the various borrower companies)."

In other words, the Defendant was willing to effect a set-off as at 16th July 1992. The result was that instead of there being a balance due from the Defendant to the Plaintiffs, after the set-off, there was a shortfall still due and owing to the Defendant from the Thai companies. That was and is not acceptable to the Plaintiffs and the Thai companies.

17. In December 1994, the sum of $4,349,409- was paid to and accepted by the Defendant in settlement of the outstanding indebtedness allegedly due from the Thai companies on a without prejudice basis. The money was agreed to be put in a separate interest bearing account pending the outcome of contemplated legal proceedings.

18. The Originating Summons herein was issued on 23rd February 1995. The main hearing was scheduled to take place before Mr. Justice Rogers on 6th November 1995. At the last minute, the Plaintiffs sought to amend paragraph 1 of the Originating Summons by pleading various dates in the alternative and sought leave to file and serve the 2nd Affirmation of the 1st Plaintiff. On 6th November 1995, Mr. Justice Rogers granted the application by the Plaintiffs, gave consequential directions, adjourned the proceedings and reserved the question of costs.

THE ARGUMENTS

19. Originally, one of the main contentions of Counsel for the Plaintiffs was that there was a mandatory and self-executing set-off based on the true construction of the documents (in particular, the Security Document) and on the relevant provisions of the Companies Ordinance Cap. 32 (in particular, sections 227E, 264 and 265(6)) and the Bankruptcy Ordinance Cap. 6 (in particular, section 35). In short, Counsel for the Plaintiffs would seek to rely on the decision of the English Court of Appeal in M.S. Fashion Ltd. V. Bank of Credit and Commerce International S.A. [1993] Ch. 425 and to distinguish the decision of the Hong Kong Court of Appeal in William Young Hong Yui V. Bank of Credit and Commerce Hong Kong Limited (in liquidation) (Civil Appeal No. 185 of 1993 Judgement handed down on 6th May 1994). That was certainly the position when the matter came before Mr. Justice Rogers on 6th November 1995.

20. At the outset of the hearing, Mr. Robert Tang Q.C., leading Counsel for the Plaintiffs, informed me that he was abandoning that argument in light of the recent decision of the Judicial Committee of the Privy Council in the case of Tam Wing Chuen and Another V. Bank of Credit and Commerce Hong Kong Limited (in liquidation) (Privy Council Appeal No. 34 of 1995 Judgment delivered on 26th March 1996) in which the Judicial Committee upheld the decision of the Court of Appeal in Hong Kong to the effect that the instrument in question in that case (which was similar in terms to the Security Document in the present case) did not impose a personal liability on the depositor. In the circumstances, there could be no possibility of any mandatory and self-executing set-off on the basis of the statutory provisions referred to above.

21. The remainder of the arguments of Counsel for the Plaintiffs can be summarised under the following headings : -

I shall deal with these arguments in turn below.

TRUE CONSTRUCTION OF THE DOCUMENTS

22. This argument goes as follows : -

"This can only mean that an event of default can occur in one of 2 ways:

In other words, an event of default can be triggered after failure by the borrower to pay on the due date by a written demand or by the continued failure to pay for 10 days."

"There is no event of default upon mere failure to pay forthwith on demand, a (further) written demand is required, or there has to be continued non-payment for 10 days after the relevant due date or after demand."

23. I do not agree with the construction advanced by Counsel for the Plaintiffs for the following reasons : -

DUTY ON THE PART OF THE DEFENDANT AS MORTGAGEE

24. Counsel for the Plaintiffs argue that, even if a demand for payment of the entire indebtedness was necessary, the Defendant should not have delayed in making the demand on the Thai companies because it owed a duty to the Plaintiffs who had mortgaged their deposits to the Defendant as security for the debts owed by the Thai companies. The greater the delay, the more interest would be incurred by the Thai companies on their debts and the more such liability for interest would eat into the security resulting in the diminution of the value of such security. On the other hand, the security, namely, the deposits, would not be earning interest because of the winding up of the Defendant. They rely on the cases of China & South Sea Bank Ltd. V. Tan Soon Gin [1990] 1 A.C. 536 and Palk V. Mortgage Services Funding Plc [1993] Ch. 330 for their abovementioned proposition.

25. In the China & South Sea Bank Ltd. case (supra), the plaintiff bank made an advance to the debtor and the defendant surety guaranteed repayment of the principal sum and interest. As security for the loan a company mortgaged to the plaintiff shares allegedly worth twice the sum advanced. The debtor defaulted on the date of repayment. Although the shares were then still worth more than the loan, the plaintiff did not exercise its power of sale under the mortgage. After the shares had become worthless, the plaintiff demanded payment from and sued the defendant. There was no question of any winding-up or bankruptcy involved. The Privy Council held that the plaintiff bank owed no duty to the defendant surety to exercise its power of sale over the mortgaged securities and could decide in its own interest whether to sell the same and when to do so. Counsel for the Plaintiffs rely in particular on the dictum at page 545-G-H which reads : -

"No creditor could carry on the business of lending if he would become liable to a mortgagor and to a surety or either of them for a decline in value of mortgaged property, unless the creditor was personally responsible for the decline."

They argue that in the present case the Defendant was personally responsible for the diminution in the value of the deposits by failing to make a demand.

26. In the Palk case (supra), the plaintiffs, a husband and wife, were unable to pay mortgage instalments under a mortgage of their house which they negotiated to sell at L283,000-. The amount needed to redeem the mortgage was L358,587-. The defendant mortgagee refused consent to the sale and obtained an order for possession with a view to letting the house and postponing sale to achieve a better price. The Plaintiffs applied for an order for sale under section 91 (2) of the Law of Property Act 1925. The expected rental value was significantly less than the interest that would be saved by selling the house. The Court of Appeal exercised its discretion under section 91 (2) and ordered a sale. In this case, again there was no question of winding-up or bankruptcy involved. Counsel for the Plaintiffs rely in particular on that part of the judgment of Sir Donald Nicholls, V.-C., at pages 337G-338G, which also made reference to the China & South Sea Bank Ltd. case (supra).

27. In my judgment, the crux of the principle lies in the words of the learned Vice-Chancellor at page 337 G-H :

"As Lord Templeman noted in the China and South Sea Bank case, at P. 545, a mortgagee can sit back and do nothing. He is not obliged to take steps to realise his security. But if he does take steps to exercise his rights over his security, common law and equity alike have set bounds to the extent to which he can look after himself and ignore the mortgagor's interests."

In the present case the Defendant merely chose to take steps to realise its security at a later time. Additionally, the Defendant also had to take into consideration the well being of the general body of its own creditors in the context of its liquidation. See the judgement of Godfrey J.A. in the William Young Hong Yui case (supra) at pages 10 P - 11 C.

28. This point is further laid to rest by the decision of the English Court of Appeal in the case of Morris V. Agrichemicals Ltd. (Unreported judgment delivered on 20th December 1995). In that case, the liquidators of the Bank of Credit and Commerce International S.A. ("the Bank") sought the directions of the Court in two test cases. The circumstances were as follows. In a large number of cases the bank lent money to a customer ("the principal debtor"). A third party ("the depositor") deposited money with the bank and purported to charge the deposit to the bank with repayment of the loan. The charge was by way of non-recourse collateral security; the bank did not obtain a personal covenant or guarantee of repayment from the depositor. Before the loan was repaid the bank went into liquidation. The liquidators sought directions whether they should attempt to recover the whole of the outstanding loan from the principal debtor and leave the depositor to prove in the liquidation of the bank for the amount of the deposit after the loan had been fully repaid; or whether they should set off the amount of the outstanding loan against the deposit and claim from the principal debtor only so much of the loan as exceeded the amount of the deposit. Rattee J held that the liquidators were not required to give credit for the amount of the deposit before claiming to recover the amount of the indebtedness of the principal debtor. The principal debtors appealed. One of the points taken in that case was the point now taken by Counsel for the Plaintiffs regarding the duty of the mortgagee, albeit that it was the principal debtors instead of the depositor who were taking the point in that case. It was disposed of by the Court of Appeal at pages 37 and 38 of the judgment as follows : -

"In the first place, the bank has not disposed of or improperly made away with the deposits. They are still available to the depositors. The true complaint is not that the bank has made away with the deposits or cannot restore them to the depositors, for their claims continue to exist and they may still prove for them; but that the deposits are no longer worth face value. But a secured creditor is under no duty to maintain the value of the security; his only duty is not to lose or injure it. Diminution in value of the security cannot be equated with loss of or injury to the security for the purpose of the rule under discussion, and in our opinion it does not matter that the diminution in value is the result of the creditor's own insolvency. In the present case the bank was liable to repay the deposits. Its liability to do so arose by virtue of the deposits, not of the letters of lien/charge, which limited its liability to repay the deposits. The depositors can enforce the bank's liability to repay the deposits by proof or set-off. As secured creditor the bank has no separate liability to the depositors not to become insolvent so that it cannot repay the deposits in full. If the depositors could prove both for the return of their deposits and for the loss due to the bank's failure to repay them in full, they would be proving twice for the same debt."

29. In the circumstances, I also find against the Plaintiffs on the argument of breach of duty on the part of the Defendant as mortgagee.

THE QUISTCLOSE TRUST

30. I come to the last point advanced by the Plaintiffs. The argument is based on the case of Barclays Bank Ltd. V. Quistclose Investments Ltd. [1970] A.C. 567 and on the construction of the Agreement Letter. I was told by Counsel for the Plaintiffs in argument that this document was by no means one of the standard documents used by the Defendant but that it was "tailor-made" for the occasion. Indeed, the firm of solicitors now representing the Defendant advised and represented the Plaintiffs in working out the terms of the Agreement Letter. Counsel for the Defendant appeared a bit reluctant to accept that that document was "tailor-made" for the occasion. It is, however, common ground that there was no equivalent of the Agreement Letter in any of the decided cases in England or in Hong Kong relating to the Bank of Credit and Commerce International S.A or the Defendant. On this basis, Counsel for the Plaintiffs seek to distinguish Morris V. Agrichemicals Ltd. (supra) and other cases from the present case.

31. In the Quistclose case (supra), Rolls Razor Ltd., was in serious financial difficulties. It had an overdraft with Barclays Bank, to the extent of L484,000-. Rolls Razor commenced negotiations with a certain financier with a view to obtaining a loan of $1,000,000-. It was suggested that such a loan might be made on condition that Rolls Razor found a sum of L209,719 from another source which was needed to meet a share divendend which it had declared earlier. Rolls Razor succeeded in obtaining a loan of that sum from Quistclose Investments Ltd.. The loan was made on the agreed condition that it would be used to pay the dividend. Quistclose's cheque was paid into a separate account opened especially for the purpose with the bank who knew that the money was borrowed and who agreed with Rolls Razor that the account would only be used for the purpose of paying the dividend. Before the dividend had been paid, Rolls Razor went into voluntary liquidation. Quistclose brought an action against Rolls Razor and the bank claiming that the money had been held by Rolls Razor on trust to pay the dividend; that the trust having failed, it was held on a resulting trust for Quistclose; and that the bank had had notice of the trusts and was accordingly a constructive trustee of the money for Quistclose. It was held by the House of Lords, inter alia, that : -

32. The Quistclose case was followed by Peter Gibson J. in Carreras Rothmans Ltd. V. Freeman Matthews Treasure Ltd. [1985] 1 Ch. 207. The Plaintiff in that case was a manufacturer of cigarettes and advertised extensively. The defendant was an advertising agency which provided services to the plaintiff. One of the services provided by the defendant to the plaintiff was to incur debts as a principal to third parties in respect of advertisement spaces booked and certain technical services. Each month the plaintiff would pay to the defendant, inter alia, a sum equivalent to the amount of the invoices received by the defendant from third parties for liabilities incurred the previous month. The defendant was in a financial difficulties and, at the suggestion of the plaintiff, it agreed in July 1983 that a special account should be opened into which the plaintiff would pay a sum equivalent to the moneys due to the third parties. Under that July agreement the plaintiff paid into the special account a sum of money to meet the invoices for the June liabilities payable by the defendant at the end of July. The defendant drew the cheques necessary to pay the third parties on that account but on 3rd August the defendant went into a creditors' voluntary liquidation and its liquidator arranged for the special account to be frozen before the cheques were cleared. The plaintiff paid off the third parties and sued the defendant and the liquidator for a declaration that the moneys in the special account were held on trust for the sole purpose of paying the third party creditors and for an order for those moneys to be repaid to the plaintiff. It was held by the learned Judge, inter alia, that under the terms of the July agreement the moneys paid by the plaintiff into the special account to meet the June debts owed by the defendant to third parties were never held by the defendant beneficially; that since the moneys had been placed in a special account for a specific purpose, equity required that the moneys were used only for that purpose; that, accordingly, the July agreement did create a trust and the plaintiff had a right to enforce the payment over if moneys in the special account to the third parties and the third parties had an interest in the orderly administration of those trust funds. At page 221, in rejecting the argument that, in order for there to be a trust, there must be the conventional elements of a settlor, trust property and a beneficiary and that such elements were not present, the learned Judge relied on that part of the judgment of Lord Wilberforce in the Quistclose case (supra) at page 581 which reads :

"There is surely no difficulty in recognising the co-existence in one transaction of legal and equitable rights and remedies: when the money is advanced, the lender acquires an equitable right to see that it is applied for the primary designated purpose."

At page 222 B - C, the learned Judge says :

"I doubt if it is helpful to analyse the Quistclose type of case in terms of the constituent parts of a conventional settlement, though it may of course be crucial to ascertain in whose favour the secondary trust operates (as in the Quistclose case itself) and who has an enforceable right. In my judgment the principle in all these cases is that equity fastens on the conscience of the person who receives from another property transferred for a specific purpose only and not therefore for the recipient's own purposes, so that such person will not be permitted to treat the property as his own or to use it for other than the stated purpose."

At page 224 D, the learned Judge says :

"In my judgment therefore a trust was created by the July agreement, the trust was completely constituted by the payment of moneys into the special account and the plaintiff as the provider of the moneys has an equitable right to an order for the carrying out by the defendant of the trust."

33. Counsel for the Plaintiffs argue as follows : -

34. Counsel for the Defendant argues that there could not be any trust because the Deposits had not been put in a segregated account and that the exact notes had not been kept. The latter part of that argument was dealt with in that part of the judgment in Toovey V. Milne (1819) 2 B. & Ald. 683 cited by the Court of Appeal in the Quistclose case. See Quistclose Investments Ltd. V. Rolls Razor Ltd. [1968] Ch. 540 C.A. at p. 552 E - 554 E. At page 554 D - E, Harman L.J. also says : -

As regards the first part of that argument, if a "segregated account" is necessary for the purpose of establishing a Quistclose trust, I find that the effect of the Agreement Letter is to cause Deposit A and Deposit B to be put into a segregated account or two segregated accounts.

35. Counsel for the Defendant also relies on the Morris V. Agrichemcials Ltd. judgment (supra) at page 39 and the decision of Hoffmann J., as he then was, in Omer Mohammed El-Tyeb V. Bank of Credit and Commerce S.A. (Unreported judgment delivered on 21st October 1991) in which the trust argument was advanced and rejected. The short answer is that these two cases can be distinguished on the facts. There is no suggestion that there was any equivalent of the Agreement Letter in either of those two cases.

36. In the result, I agree with the Plaintiffs that on the true construction of the Agreement Letter each set of deposits, Deposit A and Deposit B, made by the Plaintiffs with the Defendant was for a special purpose, namely, in respect of Deposit A, as money to be applied only in settlement and discharge of any principal and base rate interest due from the relevant Thai company and not paid within 10 days of the relevant due date, and, in respect of Deposit B, as money to be applied only in settlement and discharge of the interest spread due from the Thai company and not paid within 10 days of the relevant due date. See paragraph 2 (a) and (b) of the Agreement Letter. In my judgment, the Agreement Letter created a trust and the monies in Deposit A and Deposit B were imposed with the character of a trust. Such monies amounted to more than just security for the repayment of the loans to the Thai companies in general. I find that upon the winding up Petition being presented (the date of commencement of the winding up), the Defendant was under a duty to apply the deposits in setting off the indebtedness owed by the Thai companies and return any excess to the Plaintiffs. Such a duty arose both out of the special purpose of the trust as well as the principle that a trustee or fiduiary should not act or omit to act resulting in detriment to the beneficiaries.

37. In case I am wrong in deciding in favour of the Plaintiffs on the trust point, I still find that paragraph 2 (c) of the Agreement Letter had been triggered in relation to the interest payable by the Thai companies. In the second affirmation made by the 1st Plaintiff, he exhibited a true copy of a letter dated 7th June 1991 from the Defendant to Serm Thamsong, Thamrong Cin and Prateep Thamrong making a demand for accrued loan interest in the sum of $1,562,739.73 to be paid on or before 28th June 1991. Those three companies failed to make payment of such interest on 28th June 1991 or at all. He also deposed to the fact that interest was payable by Prime Box annually in arrears. In 1991, interest became due on 24th August 1991 and Prime Box defaulted. In my judgment, in the circumstances, the provision for automatic application of the Deposits for setting off the indebtedness by the Thai companies had been triggered. This, however, is irrelevant in view of my earlier finding on the trust point.

CONCLUSION

38. I therefore declare that the Defendant is and was bound to apply and/or set off the principal and interest due and owing by the Defendant to the Plaintiffs in respect of the respective deposits, particulars whereof are set out in the Schedule to the Re-Amended Originating Summons, to the extent necessary to satisfy or extinguish the respective liabilities to the Defendant of Prime Box, Serm Thamrong, Thamrong Cin and Prateep Thamrong in respect of the loans, particulars of which are also set out in the said Schedule, with effect from a date earlier than 16th July 1992, namely, 17th July 1991.

39. I order that an account be taken to determine the amount for which the Plaintiffs are entitled to prove in the compulsory winding up of the Defendant in respect of the balances of their respective deposits on the basis that such balances have never formed part of the Defendant's assets which are available to the general body of creditors. I have been told by Counsel that they would most probably be able to work out the calculation without difficulty depending on the basis of my ruling.

40. On the question of costs, I take the view that the Plaintiffs should pay the costs thrown away and occasioned by the adjournment granted by Mr. Justice Rogers on 6th November 1995. Despite the fact that the trust argument was never expressly advanced in the correspondence or in the evidence, in my judgment, there was no obligation on the Plaintiffs to formulate and present the legal arguments at an earlier stage and costs should follow the event. I therefore make an order nisi that the Plaintiffs do have the costs of these proceedings with the exception of costs previously ordered (if any) and with the exception of the costs thrown away and occasioned by the adjournment granted by Mr. Justice Rogers on 6th November 1995 which should be borne by the Plaintiffs. Such order will be made absolute unless my clerk is notified within 14 days of the date of this Judgment that either party wishes to make further submissions to me. For the assistance of the Taxing Master, I certify that the case is fit for two Counsel, unless I am persuaded to the contrary in any subsequent argument on costs.

41. I give the parties general liberty to apply for the purpose of working out the formal order.