RE DIANOOR INTERNATIONAL LTD

HCCW 576/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES WINDING-UP NO. 576 OF 2008

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AND

HCCW 577/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES WINDING-UP NO. 577 OF 2008

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AND

HCCW 27/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES WINDING-UP NO. 27 OF 2009

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AND

HCMP 789/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 789 OF 2008

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BETWEEN

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J U D G M E N T

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Introduction

1.  These proceedings concern the affairs of three companies called Dianoor International Limited (“DIL”), Dianoor Jewelcraft Limited (“DJL”) and Checkers Limited (“Checkers”). Each of them is at present in receivership, Mr Edward Middleton and Mr Patrick Cowley of KMPG Hong Kong, and Mr Kevin Roy Mawer (“the Receivers”) having been appointed as interim receivers on an ex parte basis on 25 April 2008 by Kwan J in HCMP 789 of 2008.

2.  The companies are also the subject of winding up petitions. Creditor’s petitions were presented against DIL and DJL respectively on 3 December 2008 by former employees of those companies, on the basis of unpaid Labour Tribunal awards against them. Each of these petitions is also supported by a number of other employees, who have also obtained awards against the companies in the Labour Tribunal. Checkers is the subject of a petition for winding up on the just and equitable ground, pursuant to a petition dated 13 January 2009 that was presented by itself acting through the Receivers.

The Background

3.  The background to this matter arises out of divorce proceedings in the United Kingdom, between a Mr Mubarak and his former wife, Mrs Mubarik. It appears that Mr Mubarak was involved in the jewellery business. Having initially commenced such business in Kuwait in the early 1980s, he set up a similar business in Hong Kong as well. In about 1994, a Bermudan company called Twenty First Century Holdings Limited (“Twenty First Century”) was incorporated, and eventually became the holding company for the various Dianoor companies. It owned 100% of Checkers (whose role was to provide financial support for the companies in the group), and through another wholly owned subsidiary incorporated in Jersey called Dianoor Jewels International Limited (“DJIL”) owned 100% of DIL (which owned a workshop and office in Hong Kong and the bulk of the jewellery stocks), DJL (which was the manufacturing company), and a United Kingdom company called Dianoor Jewels Limited (“DJLL”) (which had a retail store in Bond Street in London). Initially, Twenty First Century was owned as to 98% by Mr Mubarak, while Mrs Mubarik owned the remaining 2% of its shares.

4.  In 1997, Mr Mubarak set up the IMK Family Trust (“the Trust”) in Jersey, into which he and Mrs Mubarik transferred their shares in Twenty First Century. The Trust thus became the owner of the whole of the Dianoor group of companies.

5.  In 1998, Mr Mubarak moved out of the family home, and took steps to have Mrs Mubarik excluded as a beneficiary of the Trust. Mrs Mubarik then petitioned for divorce, setting off an extensive series of litigation between them. In December 1999, Mrs Mubarak was awarded a sum of slightly under GBP 5 million and further sums for maintenance by way of financial settlement as against Mr Mubarak by the English High Court. When Mr Mubarak failed to pay, proceedings were taken by Mrs Mubarik in Jersey, in which Mr Mawer and a colleague of his were appointed receivers of the Trust (“the Jersey Receivers”).

6.  According to Mr Middleton, who has made substantially all of the affidavits on behalf of the Receivers in these proceedings, the Jersey Receivers believed that the main part of the business of the Dianoor companies was held and operated through the Hong Kong companies, and therefore took steps to secure control of these companies, with a view to operating them so as to preserve the value of the business, it being thought at that stage that the businesses were in fact substantial and valuable. This led to the commencement of HCMP 789 of 2008, in which the Jersey Receivers sought the recognition of their appointment by the Hong Kong court (and their consequent powers to act on behalf of the Trust in relation to its rights as a shareholder in the three Hong Kong companies), and injunctions restraining the directors of the companies (a Mr Wani and a Mr Aiyer) from dealing with the companies’ assets and taking part in their management. The appointment of the Receivers was made at the outset of those proceedings.

7.  The Receivers’ evidence is to the effect that following their appointment, they sought to secure the assets of the Hong Kong companies, and to operate their businesses so as to preserve their value. However, they say that they have had little cooperation from the companies’ directors in doing this. They say also that their investigations have revealed that the Hong Kong companies are now in fact insolvent, as most of the assets (consisting of stocks of jewellery) are missing, apparently having been sent to various entities on consignment, and having neither been returned nor paid for, and as debts apparently owing to the companies are unlikely for the most part to be recoverable.

8.  As a result, the companies have been unable to continue operations, and their staff have gone unpaid. This led to the institution of Labour Tribunal proceedings by the staff of DIL and DJL, and as the awards made in favour of the staff have gone unsatisfied, to the present winding up proceedings against them.

9.  The appointment of the Receivers has been opposed by the directors of the companies, acting principally through Mr Aiyer. He has filed a number of affirmations in the HCMP proceedings and the winding up proceedings, in which he takes issue with the case put forward by the Receivers. He denies that he has been uncooperative, and suggests that the companies’ business has been severely affected as a result of the appointment of the Receivers. He also suggests that the companies are not in as poor financial health as the Receivers suggest.

10.  The companies, again through Mr Aiyer, have also opposed the winding up proceedings. In the case of DIL and DJL, Mr Aiyer suggested that they would in fact be able to settle their indebtedness to the employees upon the successful mortgagee sale of the workshop premises owned by DIL, which had been mortgaged to Banque National de Paris (“BNP”), which was expected to produce a surplus in DIL’s favour after settling the outstanding balance due to BNP (it appears that BNP had earlier satisfied a part of the debt due to it by having recourse to a deposit of some HK$8 million placed with it by Checkers, over which it held security).

11.  Following the presentation of the petitions against DIL and DJL, on 13 January 2009 the Receivers took out summonses in each proceeding seeking the appointment of themselves as provisional liquidators of the companies. At the same time, they took out a winding up petition on behalf of Checkers in respect of itself, seeking its own winding up on the just and equitable ground – the basis for this being that if DIL and DJL were wound up, there was no reason for Checkers to continue in operation – and applying for their appointment as provisional liquidators in respect of Checkers also. In each case, they contended that the company in question was insolvent, as its debts were said to exceed its assets by a substantial margin. It will be necessary to look more closely at this contention later in this judgment.

12.  Although the applications for appointment of provisional liquidators were made at short notice on 14 January 2009, they were adjourned by Kwan J to a date to be fixed. Kwan J also directed that the inter partes application for the continuation of the Receivers’ appointment in HCMP 789 of 2008 should be fixed for hearing at the same time.

13.  The petitions in respect of DIL and DJL were first heard on 4 February 2009. As they were opposed, they were adjourned to 9 February 2009, when they were further adjourned to 6 April 2009. On 6 April 2009, they were further adjourned to 18 May 2009, by which time it was expected that the mortgage sale of DIL’s workshop premises would have been completed (it was in fact completed on 5 May 2009, producing a surplus of some HK$7.4 million for DIL). The petition in respect of Checkers was eventually also adjourned to be heard at the same time as the other petitions on 18 May 2009.

14.  Meanwhile, the applications for the appointment of provisional liquidators was fixed to be heard at this hearing.

15.  On 14 May 2009, DIL and DJL (acting through Mr Aiyer) applied for validation orders to enable them to settle the claims of the respective petitioners and their fellow employees. DIL sought validation orders in order to enable it to make payments to the employees and also to DJL (to which it was indebted in the sum of about HK$795,000). DJL sought a validation order to enable it to make payments to its employees. On 18 May 2009, Chu J directed that the applications for validation orders and the substantive hearing of the petitions should all be adjourned to this hearing. She also directed that the applications for validation orders should be heard first at this hearing.

The Applications before the Court

16.  There were therefore before me the following applications and matters:-

(1)  DIL’s application for a validation order in HCCW 576 of 2008;

(2)  DJL’s application for a validation order in HCCW 577 of 2008;

(3)  The Receivers’ application in HCCW 576 of 2008 for the appointment of provisional liquidators in respect of DIL;

(4)  The Receivers’ application in HCCW 577 of 2008 for the appointment of provisional liquidators in respect of DJL;

(5)  The Receivers’ application in HCCW 27 of 2009 for the appointment of provisional liquidators in respect of Checkers;

(6)  The hearing of HCCW 576 of 2008 in respect of DIL;

(7)  The hearing of HCCW 577 of 2008 in respect of DIL;

(8)  The hearing of HCCW 27 of 2009 in respect of Checkers; and

(9)  The inter partes hearing of the Jersey Receiver’s application in HCMP 789 of 2008 for the continuation of the appointment of the Receivers.

Applications for Validation Orders

17.  As I have already noted, Chu J directed that the applications for validation orders should be considered first. This was, I think, on the basis that if the proposed payments were permitted to be made, the petitions might fall away, as the claims of the petitioners and their fellow employees against the DIL and DJL could be satisfied.

18.  Mr Chan, who appeared for the companies on the instructions of their directors, submitted that the validation orders should be granted in order to enable the employees to be paid. He pointed out that the total claims of the employees were HK$2,092,545.16 in the case of DIL and HK$605,014.24 in the case of DJL. As the net balance of the proceeds of the sale of DIL’s workshop premises was some HK$7,417,181.14, this was sufficient to pay the whole of DIL’s employees’ claims, and also to enable DIL to pay to DJL the amount due from it to DJL of HK$794,745.39, out of which DJL could in turn pay the whole of its employees’ claims.

19.  Mr Chan contended that as no other creditors or alleged creditors of either DIL or DJL had filed a notice of intention to appear on the petition pursuant to Rule 30 of the Companies (Winding-Up) Rules (Cap. 32H) indicating that they wished to support the petitions, the position was similar to that in Re Alexanders Securities Ltd (No. 1) (1983) 8 ACLR 432, in which Mc Pherson J of the Supreme Court of Queensland held that it was not necessary for a company to establish its solvency when seeking the dismissal of a winding up petition against it with the consent of the petitioning creditor who had been paid the amounts owing to him.

20.  If the validation orders were granted, Mr Chan suggested that the petitions should be listed for a further hearing after a suitable time had elapsed for the necessary payments to be made to the employees, at which time they could be dismissed, assuming that no other creditor sought to be substituted as petitioner.

21.  However, in Re Shop Clothing Ltd [1999] 2 HKLRD 280, to which Mr Chan properly drew my attention, Le Pichon J (as she then was) held that the court was not bound to dismiss a winding up petition where the company was insolvent, notwithstanding that the petitioner (who in that case had not been paid) was agreeable to that course being taken so that the company could be wound up voluntarily. In the light of that decision, Mr Chan accepted that where the company was not solvent, the court retained a discretion whether or not to dismiss the petition.

22.  In addition, the Official Receiver (whose appearance at the hearing was excused, but who made certain observations on the various applications in letters addressed to the court) drew my attention to the unreported decision of Kwan J (as she then was) in Re Chungshan Commercial Association Hong Kong (CFI, HCCW 32 of 2009, 8 May 2009), in which Kwan J granted a validation order to enable a company to pay off a petitioner’s debt so as to obtain the dismissal of a winding up petition against it. In that case, it was clear that the company was solvent, having very substantial cash deposits available to it, and there were, it seems, no other creditors.

23.  In this case, the Receivers oppose the granting of the validation orders. They contend that the companies are in fact insolvent. Mr Sheppard, who appeared for them, informed me that, although they had not done so earlier, they would if necessary make an application for one of the companies under their control to be substituted as a petitioner.

24.  In my view, where it is necessary for a company to seek a validation order to enable it to settle the debt it owes to a petitioning creditor, it is appropriate for the court to seek to be satisfied that the company is solvent. If the company were not solvent, the granting of a validation order which would have the effect of enabling a petitioner to be paid the debt owing to it would mean that, in the event that another creditor successfully applied to be substituted as petitioner, and it were not possible to pay off that creditor as well, the company would go into liquidation with the original petitioners having been paid in full, rather than receiving the amount to which they would have been entitled on a pari passu distribution of the company’s assets. Although the petitioners in this case are employees, who would on a winding up be regarded as preferential creditors for part of their claim, it is not the case that the whole of the debts due to them would rank as preferential debts in the event of a liquidation.

25.  It is therefore, in my view, necessary to consider whether or not DIL and DJL are in fact solvent. As to this, Mr Sheppard submitted that they were not, relying on the Receivers assessment of the financial position of the companies.

26.  The Receivers have provided assessments of the companies’ financial position on a number of occasions. The first was contained in Mr Middleton’s first affidavit in the DIL proceedings, which he made in support of the application to appoint provisional liquidators. According to exhibit ESM-4 to that affidavit, although DIL’s books as at the date of the Receivers’ appointment suggested that it was solvent, with net assets of over HK$41 million, DIL was in fact insolvent, with net liabilities of some HK$149 million. This exhibit did not state the date as at which the assessment had been made, but the affidavit to which it was exhibited was dated 12 January 2009. The deficit was arrived at after including a debt owed to Twenty First Century of just over HK$206 million.

27.  The companies, acting through their directors, have criticised this assessment, contending that the HK$206 million debt to Twenty First Century is not in fact due and owing, as Twenty First Century had undertaken not to seek repayment of it so long as DIL was not in a position to pay it without becoming insolvent.

28.  Subsequently, in Mr Middleton’s second affidavit in the DIL proceedings dated 6 February 2009, he exhibited a revised assessment of DIL’s financial position as ESM-7, according to which the deficit was in excess of HK$234 million. Ignoring the debt said to be owed to Twenty First Century, the deficit was some HK$27 million. A comparison of ESM-4 and ESM-7 shows that the increase in the deficit is attributable almost entirely to a downward revision in the value of the accounts receivable of DIL, from some HK$87 million odd, to HK$2 million odd.

29.  Shortly before the hearing, on 9 July 2009, Mr Middleton provided a further revised assessment of DIL’s financial position in the form of exhibit ESM-47 to his 5^th Affidavit, according to which the deficit had further increased to some HK$252 million (or HK$46 million, if the debt to Twenty First Century was left out of the picture). This calculation was also the subject of criticism by Mr Chan, on the basis that there appeared to have been an element of double counting in relation to a liability of some HK$8.3 million owing to Checkers (in respect of a deposit belonging to Checkers which had been provided to BNP as security for DIL’s debts to BNP, and which had been used by BNP to offset such debts), which seemed to have been included under accounts payables and also as a separate item. The Receivers accepted that there had been an error in this regard, and provided a further revision in which the separate item was removed. This was eventually exhibited as ESM-48 to Mr Middleton’s 6^th Affidavit, which was filed after the hearing, pursuant to leave to do so given at the hearing, to correct the error in ESM-47. According to ESM-48, the deficit in relation to DIL as at 7 July 2009 was some HK$244 million, or some HK$37 million if the Twenty First Century Debt was ignored.

30.  Mr Chan submitted that the assessment of DIL’s financial position by the Receivers was not reliable. He pointed out that on the basis of the Receivers’ first assessment, leaving aside the debt to Twenty First Century, DIL was solvent, and suggested that no explanation had been given for the further writing down of the accounts receivable of DIL from HK$87 million (in exhibit ESM-4) to HK$2 million (in exhibit ESM-7). He also suggested that the double counting of the HK$8.3 million due to Checkers in respect of its deposit which had been used by BNP to satisfy part of DIL’s debts to BNP threw further doubt on the reliability of the Receivers’ figures.

31.  I do not think that the error in relation to the liability to Checkers is a significant matter. It seems to me that this was clearly an error, and one which was readily acknowledged by the Receivers.

32.  As to the reduction in the estimated value of the accounts receivable, Mr Sheppard submitted that an explanation of how the revised figure was arrived at was in fact to be found as part of ESM-47, which included a debtors list providing a breakdown of all the debtors of DIL according to its books, and an estimate of the realisable value of each debt, with brief explanations as to why it was thought that most of the debts were likely to have no realisable value. Thus, in relation to a number of debtors, it appears that the Receivers have been unable to locate or otherwise contact the debtors since their appointment – in such cases, it would seem reasonable to regard the amounts claimed as irrecoverable. In several other cases, although letters sent to the debtors have not been returned undelivered, no response at all has been received from the debtor concerned – again, it would not seem unreasonable to regard the amounts recorded as owing as being likely to be irrecoverable. In a few cases, the claim has been disputed or denied by the debtor concerned. Finally, in respect of certain Dianoor related companies which were indebted to DIL and are now in liquidation, it has been noted that the amount of any recovery is uncertain. An explanation has therefore been provided as to the basis on which the debts are regarded as unlikely to be recoverable.

33.  Mr Chan suggested that notwithstanding this, there was no explanation as to why the position was regarded as having been better, and the estimated value of the receivables greater, when a figure of HK$87 million was first put forward in ESM-4 in respect of the receivables of DIL.

34.  I note that no schedule containing a breakdown of the receivables was included as part of ESM-4. When ESM-7 was produced, a breakdown was provided, but this did not contain any explanation of the basis on which most of the receivables were thought to be worthless. ESM-47, however, does contain such explanations, and appears to have been produced in response to the criticism which has been made. While it might be said that the explanation could have been more detailed, and that more information could have been provided as to the reasons for the write down as between ESM-4 on the one hand and ESM-7 and ESM-47 on the other, I am of the view that the Receivers have provided an explanation for their regarding the receivables as being, for the most part, worthless. I also bear in mind that the Receivers have been in office since April 2008, and that it appears that they have made efforts to get in the assets of DIL, but that so far as the receivables are concerned, they have met with little success, and the prospects for further recoveries appear to be limited. Further, it would appear that there is little realistic prospect of the companies being able to continue to trade.

35.  In the circumstances, it seems to me that it would be right to have regard to the Receivers’ present assessment of the value of the receivables of DIL, and to conclude that on the evidence available, DIL does in fact appear to be insolvent in that its liabilities appear to exceed the realisable value of its assets.

36.  It also seems to me to be relevant to note that, even though no application for substitution as petitioner has yet been made, the absence of such an application is not particularly surprising when the position remains that the petitioners have not yet consented to the dismissal of the petition (even though it might in principle have been possible to apply for substitution upon an adjournment having been agreed to, this is not a course that I would expect to have been taken where the adjournment was, as here, not one which suggested that the petitioners were not interested in pursuing the petition). In the event that this were to happen, it is clear that the Receivers would seek to take steps to have another creditor substituted as a petitioner. In the case of DIL, this would seem to be possible in respect of Checkers, which is apparently owed some HK$20 million odd by DIL – HK$12 million according to DIL’s records, plus the further HK$8.3 million resulting from BNP having had recourse to Checkers’ deposit with it to settle DIL’s debt to BNP. There has been (and can be) no suggestion that DIL has the means to meet such a liability. Even if the receivables were regarded as having some value, there is nothing to suggest that they are capable of being realised so as to enable the debt to Checkers to be paid in the foreseeable future.

37.  That being so, it would not seem appropriate to grant a validation order to enable the employees to be paid in full, when this would have the effect of enabling them to receive more than they would be entitled to on a pari passu distribution of DIL’s assets.

38.  I should add that Ms Cheung, appearing for the petitioners, submitted that notwithstanding that DIL may not be solvent, the employees should be paid in full as their claims arose under an award of the Labour Tribunal. In support of this contention, she relied upon the decision of Chu J in Fuji Photo Film Co. Ltd v Jazz Photo (Hong Kong) Ltd (unreported, CFI, Chu J, HCCW 1165 of 2003, 24 February 2004), in which Chu J suggested (at paragraph 29 of the judgment) that a validation order should be granted in respect of sums awarded to employees by the Labour Tribunal, notwithstanding that not the whole of such sums would be regarded as a preferential debt on liquidation. It appears that in that case, Chu J considered that the company was in a difficult situation, since it was contended that it should be downsizing its operations, and was at the same time being criticised for agreeing to make payments to staff who had been made redundant as part of such a process. It may be that the decision is explicable on the basis that it was in the company’s interests to reduce the size of its staff, and was therefore justified in seeking to pay staff who lost their positions as a result. However, to the extent that it was suggested that such payments should be validated on the basis that they were an award of the court, I would respectfully disagree that this provides a basis for making a validation order – were that the case, there would seem to be no reason why any judgment should not be the subject of a validation order, notwithstanding that the payment of the judgment debt would not benefit the creditors of the company as a whole.

39.  I therefore do not think that it would be appropriate to grant a validation order to enable DIL to pay off the petitioning creditors.

40.  Further, so far as the proposed payment to DJL is concerned, no basis has been put forward for suggesting that this debt should be paid in preference to debts owing to other creditors of DIL. The fact that this might enable DJL to pay off its petitioning creditor and his fellow employees does not, in my view, provide the necessary justification.

41.  I am therefore of the view that, having regard to the fact that DIL appears to be insolvent, it would not be appropriate to grant the validation order sought in respect of it.

42.  It therefore follows that DJL will not be put in funds to pay its employees, and the validation order application in respect of it will become otiose. I therefore dismiss the applications for validation orders in respect of DIL and DJL.

Applications for Appointment of Provisional Liquidators

43.  The consequence is that, as Mr Chan accepted, winding up orders should be made in respect of DIL and DJL. However, Mr Sheppard submitted that upon dismissal of the validation orders, I should consider the applications for appointment of provisional liquidators before disposing of the petitions substantively. The reason for this was that if the Receivers were appointed as provisional liquidators prior to the making of winding up orders, they would then continue in office upon the making of such orders pursuant to section 194(1)(aa) of the Companies Ordinance (Cap. 32). By contrast, if no such appointment was made, the Official Receiver would take office as provisional liquidator pending the holding of meetings of creditors pursuant to section 194(1)(a).

44.  Mr Sheppard submitted that there was no reason not to deal with the application for the appointment of his clients as provisional liquidators. The application was made on 13 January 2009, and had been fixed for hearing at this hearing well before the applications for validation orders and the substantive hearing of the petition were fixed to be heard at the same hearing. In those circumstances, it was not through any fault or delay on the part of the Receivers that their application was not heard earlier, and it could not be said that the application was made with a view to “hijacking” the winding up petitions.

45.  He also submitted that having regard to the qualifications of the Receivers, they were clearly suitable persons to be appointed as provisional liquidators, and that in the light of the fact that they had already acted as Receivers of the companies for some time, and had gained considerable experience and knowledge from that role, it would be wasteful and duplicative of costs if the Official Receiver, or some other person, were to be appointed instead.

46.  In my view, the evidence put forward by the Receivers in support of the applications for the appointment of provisional liquidators clearly justifies such an appointment being made. There is and was a clear prima facie case for the winding up of the companies, and the evidence as to the state of affairs within the companies that was discovered by the Receivers on their appointment does suggest that there is a need for investigation. Had the application been heard before the hearing of the petitions, rather than at the same time, I have no doubt that it would have been appropriate to accede to them.

47.  I do not think that the fact that the applications have, owing to the procedural history of this case, only come on for hearing at the same time as the petitions should deter me from dealing with them, and making the appointments of the Receivers as provisional liquidators of each of DIL, DJL and Checkers, particularly as I am satisfied that their appointment is likely to be conducive to the more effective and efficient conduct of their eventual liquidation. I have no doubt that the knowledge obtained by the Receivers will be of considerable assistance to them if they were to become provisional liquidators or liquidators of the companies, and I do not think that the fact that they have acted as Receivers is something that should lead the court to conclude that they are unsuitable for appointment.

48.  One matter that has been raised by the Official Receiver is that Mr Mawer is not on the list of Panel A Insolvency Practitioners, and is not a member of the Institute of Certified Public Accountants. However, it is clear that he is an experienced insolvency practitioner in the UK, and I consider that he is a fit person to be appointed as a provisional liquidator in the present case.

49.  I shall therefore appoint the Receivers to be the provisional liquidators of DIL, DJL and Checkers, on terms of the draft order provided by the Receivers, subject to the amendments indicated by the Official Receiver under cover of his letter dated 14 July 2009.

Winding up Petitions

50.  So far as the substantive winding up petitions are concerned, Mr Chan accepted that these could not be resisted if the validation order applications failed. I therefore make the usual winding up order in respect of each of DIL, DJL and Checkers.

Continuation of Receivers’ Appointment

51.  As a result of the appointment of the Receivers as provisional liquidators, and the making of the winding up orders I have just mentioned, the application for the continuation of the Receivers’ appointment does not need to be pursued, and I shall therefore make no order in respect of it.

Costs

52.  So far as the costs of these applications are concerned, I would propose to deal with these on paper on the basis of written submissions. To this end, the parties are requested to serve on each other, and lodge with the court, written submissions as to the costs of the various applications within 21 days of the handing down of this judgment, and to serve on each other and lodge with the court written submissions in reply (should they wish to do so) within 14 days thereafter.

Attendance of the Official Receiver excused