FERRARI NORTH AMERICA, INC v. CHANGHON INTERNATIONAL ENERGY CO., LTD AND OTHERS

HCA 852/2017

[2019] HKCFI 2318

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 852 OF 2017

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J U D G M E N T

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Background

1.  The Plaintiff in these proceedings is the US subsidiary of the well-known Italian car manufacturer, Ferrari SpA.  As a result of a fraud perpetrated by individuals impersonating the CFO of the Plaintiff’s parent company, the Plaintiff was induced to make payment of a total sum of US $6.7 million (“Amount”), on 28 March 2017, 30 March 2017 and 31 March 2017, into the bank account of the 1^st Defendant maintained with the Standard Chartered Bank Limited (“Bank”) in Hong Kong, as part of a bogus transaction to purchase shares in a listed company on behalf of the Plaintiff’s parent.

2.  On 10 April 2017, the Plaintiff obtained a Mareva injunction against the 1^st Defendant, whereby it was restrained from disposing of the Amount.  On 30 October 2017, judgment in default was entered against the 1^st Defendant, which judgment included a declaration that the 1^st Defendant holds the Amount on constructive trust for the Plaintiff, as rightful owner.

3.  As a result of disclosure orders obtained against the Bank, documents relating to the 1^st Defendant’s account with the Bank (“SCB Account”) show that the entire Amount was transferred in several tranches to the bank accounts of the 2^nd to 10^th Defendants, on the same or the next business day of receipt.  Details of the transfers made to the 2^nd Defendant, 5^th Defendant, 7^th Defendant, 8^th Defendant, 9^th Defendant and 10^th Defendant are as follows:

Date	Transfer Amount	Recipient	Bank Account
29.03.17	US$236,885.00	D2	Chong Hing Bank Limited account No. 41256800868212
29.03.17	US$221.115.00	D7	Bank of China Limited account No. 6479392017212
31.03.17	US$164,165.00	D5	Hang Seng Bank Limited account No. 774539183883
31.03.17	US$240,000.00	D8	Hang Seng Bank Limited account No. 933084493883
31.03.17	US$386,539.00	D9	Hang Seng Bank Limited account No. 983314657500
31.03.17	US$160,613.00	D9	Hang Seng Bank Limited account No. 93314657500
31.03.17	US$190,000.00	D10	The Hong Kong and Shanghai Banking Corporation Limited account No. 561796301838

4.  Mareva injunctions were granted by the Court on 24 April 2017, restraining the 2^nd to 10^th Defendants from dissipating the sums transferred into their accounts from the SCB Account of the 1^st Defendant.  The injunctions against the 2^nd, 8^th and 10^th Defendants were discharged upon their payment of the respective amounts received into court.

5.  Default judgments were subsequently obtained against the 4^th, 6^th, and 11^th to 14^th Defendants.  Summary judgment was also obtained against the 3^rd Defendant, for the amounts transferred into these defendants’ accounts.

6.  The Plaintiff by summonses issued on 10 January 2018 seeks summary judgment against the 2^nd, 5^th, and 7^th to 10^th Defendants.  The claims made by the Plaintiff are for money had and received, and unjust enrichment.

7.  The grounds of defence relied upon by the Defendants are that they had altered their position on the faith of the payments received by them, and/or that they are bona fide purchasers for value without notice, such that it would be unjust to require their repayment to the Plaintiff of the sums received by them.  The 9^th Defendant also claims that the money it had received had been mixed with its own monies. 

8.  What is not disputed is that each of these Defendants is a trader in frozen meat.  The Plaintiff does not allege that these Defendants are parties to the underlying fraud perpetrated on the Plaintiff.  It maintains however that none of the Defendants have demonstrated that there are any triable issues of fact or law raised in their purported defences, and summary judgment should be entered against them.

Applicable legal principles

9.  As explained in Zimmer Sweden AB v KPN Hong Kong Ltd [2016] 1 HKLRD 1016, since the claims against the targeted Defendants do not constitute any allegation of fraud against them, the fraud exception to Order 14 does not apply.

10.  The principles applying to applications for summary judgement are trite, and will not be set out here.

11.  As for claims of restitution on the basis of unjust enrichment, the applicable principles are summarised in the case of Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548:

“Furthermore, it appears that in these cases the action for money had and received is not usually founded on any wrong by the third party, such as conversion; nor is it said to be a case of waiver or tort. It is founded simply on the fact that, as Lord Mansfield said, the third party cannot in conscience retain the money – or, as we say nowadays, for the third party to retain the money would result in his unjust enrichment at the expense of the owner of the money.”

12.  In Shanghai Tongji Science & Technology Industrial Co Ltd v Casil Clearing Ltd [2004] HKCFA 21, the Court of Final Appeal set out the appropriate test in unjust enrichment cases as follows:

“A useful framework for approaching such claims which was adopted by both parties involves asking four questions:

(a) Was the defendant enriched?

(b) Was the enrichment at the plaintiff’s expense?

(c) Was the enrichment unjust?

(d) Are any of the defences applicable?”

The Plaintiff’s case

13.  The Plaintiff has shown that the Amount had been paid from its bank account to the 1^st Defendant, and had been paid out from the 1^st Defendant’s SCB Account to the accounts of the 2^nd, 5^th, 7^th, 8^th, 9^th and 10^th Defendants.  The 1^st Defendant has already been adjudged to hold the Amount as constructive trustee for the Plaintiff.  In opposition to the Plaintiff’s application for summary judgment, the onus is on each of the Defendants to show that it has reasonable grounds for an arguable defence, and not merely to assert such, but to condescend to particulars to show that its assertions are credible.

The case against the 2^nd Defendant

14.  On 29 March 2017, US $957,968 (after deduction of bank charges) was transferred from the Plaintiff’s bank account into the SCB Account of the 1^st Defendant as a result of the fraud.  On the next day, the sum of US $236,885 was transferred from the SCB Account into the 2^nd Defendant’s bank account (2^nd Sum).

15.  The 2^nd Defendant claims that it had been trading in frozen meat parts for over 10 years.  It acted as an agent of overseas frozen food suppliers, as the receiver/consignee of frozen meat shipped to Hong Kong for sale here.  The 2^nd defendant charges agency and incidental fees for these services.

16.  In the course of its business, the 2^nd Defendant would bill the purchaser of the frozen meat, acting on behalf of the supplier.  Upon receipt of the purchase price, the 2^nd Defendant would transfer the amount to the overseas supplier, adding agency and other fees to the transaction costs.

17.  According to the Defence of the 2^nd Defendant, it was instructed by its supplier in early March 2017 that frozen meats would be shipped to Hong Kong, for sale to a purchaser.  An invoice was issued by the 2^nd Defendant to the purchaser, and upon the purchaser’s settlement on 30 March 2017 of a sum of US $236,877.27, after deduction of bank charges, the 2^nd Defendant transferred the amount received to its supplier on 31 March 2017.

18.  The 2^nd Defendant claims that it had received the money as agent for its supplier in the course of its business, without notice of any fraud, and had transferred the money received in good faith, so as to have detrimentally changed its position.

19.  As the Plaintiff highlighted, the Defence of the 2^nd Defendant contains bare denials and assertions, and it has produced no documentary evidence at all in support of the claims made in the Defence.  The 2^nd Defendant has not identified its principal/supplier, nor the purchaser of the products for which payment was allegedly made.  The 2^nd Sum received by the 2^nd Defendant, and the amount the 2^nd Defendant claims it had transferred to its supplier on 31 March 2017 (US $351,129), a day after receipt of the 2^nd Sum, do not tally.  The 2^nd Defendant admits that it had no previous connection or dealings with the 1^st Defendant, from which the 2^nd Sum was remitted into its account.  No purchase orders, invoices, or remittance instructions have been produced to evidence the 2^nd Defendant’s bare assertions of payment, and dealings.

20.  The 2^nd Defendant has not claimed and has not produced evidence to show what happened to the frozen meat which was to be sold and for which the payment was alleged to have been made.  On its pleaded case, the 2^nd Defendant was contractually bound to pay to its supplier the US $351,129 in the usual and ordinary course of its business as agent for the supplier.  It also has the contractual right to seek or recover payment from the buyer, and alternatively, to sell the frozen meat to an alternative customer for payment to the supplier, if the meat had not been delivered.

21.  As the court held in Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548 at p 580F-G, for a claim of change of position:

“… the defence is available to a person whose position has so changed that it would be inequitable in all the circumstances to require him to make restitution, or alternatively to make restitution in full. I wish to stress how whether that the mere fact that the defendant has spent the money, in whole or in part, does not of itself render it inequitable that he should called upon to pay, because the expenditure might in any event had been incurred by him in the ordinary course of things. I fear that the mistaken assumption that mere expenditure of money may be regarded as amounting to a change of position for present purposes has led in the past to opposition by some to recognition of a defence which in fact is likely to be available only on comparatively rare occasions.” (Emphasis added)

22.  To establish a change of position defence, a defendant must show that as a result of the receipt of money, it has incurred “extraordinary expenditure”.  As the editors of Goff & Jones: The Law of Unjust Enrichment (9^th Ed) observed at para 27-08:

“This might appear to be a rule about the type of detriment that a defendant must have suffered, but in fact it is a rule about causation. The defendant need not show that he spent money on something that other people might think unusual, nor that he spent in a way that he had never spent money before. The test is whether he entered the transaction that he would not have entered but for his enrichment.” (Emphasis added”)

23.  On the 2^nd Defendant’s case, there is nothing to show that it would not have made the payment to its supplier in the usual course of its business, but for its receipt of the 2^nd Sum from the 1^st Defendant.

24.  I also accept the Plaintiff’s submissions, that in circumstances where the 2^nd Defendant knew that the 2^nd Sum was not paid by its buyer, but by a party with which it had no previous connection, it had not changed its position in good faith. 

25.  In all the circumstances as described above, the 2^nd Defendant cannot rely on any defence that it would be inequitable to require it to make repayment of the 2^nd Sum to the Plaintiff, when it has legal remedies against the purchaser of the meat products (Laerdal Medical Limited v Hong Kong Haocheng International Trade Limited HCA 2193/2016, 21 June 2017).

26.  There is no arguable defence of ministerial receipt.  The 1^st Defendant is not the 2^nd Defendant’s buyer (as the 2^nd Defendant admits), nor is the 1^st Defendant the buyer of meat supplied by the Defendant’s principal/supplier.  The money received by the 2^nd Defendant from the 1^st Defendant falls outside any principal and agent arrangement that may exist between the 2^nd Defendant and its unidentified supplier.

27.  The 2^nd Defendant has failed to show that there is any triable issue or reason for trial, and the Plaintiff is entitled to summary judgment against the 2^nd Defendant.

The case against the 5^th, 8^th, and 10^th Defendants

28.  The pleaded cases of these Defendants are substantially identical.  They claim that they had purchased frozen meat products in bulk from overseas suppliers, at times which range from February to March 2019, and sold them to unidentified buyers in Hong Kong.  For the 10^th Defendant, it claims that it had first been approached by an unidentified buyer which expressed interest in the purchase of frozen meat, whereupon the 10^th Defendant ordered the products from an unidentified supplier for shipment to Hong Kong.  The Defendants all claim that their respective buyers then paid for the products, and upon receipt of the purchase price from their buyers, the products were released to the buyers, and without notice of any fraud or knowledge of the Plaintiff’s claim, the Defendants had changed their position by contracting to purchase further frozen meat products, for sale in the usual and ordinary course of their business. 

29.  As such, the Defendants claim that they had bona fide supplied valuable consideration for the monies received from the 1^st Defendant, and had detrimentally changed their position in reliance on the receipt.

30.  As in the case of the 2^nd Defendant, the 5^th, 8^th, and 10^th Defendants have not condescended to any particulars in relation to their alleged purchases and sales of the products, for which they claim they had received the monies as purchase price.  Apart from the 5^th Defendant’s assertion that it had ordered the frozen products from a company named Ess Food, there are no particulars of the alleged suppliers from which the Defendants bought, or of the buyers to which the Defendants sold, the products in question.  No documents have been produced in support of the transactions relied upon, to establish the causal link between the Defendants’ receipt of the money from the 1^st Defendant, and its payment to suppliers by way of alleged change of position.  As the Plaintiff argued, the payments alleged to have been made by the 5^th, 8^th and 10^th Defendants were payments in the usual course of their business of buying and selling frozen meat products.  They have not established by any evidence that but for the receipt of the sums paid into their accounts, they would not have placed the further orders for the frozen products. 

31.  In any event, each of the 5^th, 8^th and 10^th defendants has a legitimate cause of action and right to pursue its respective purchaser for the price properly due in respect of the products sold and delivered to them on the strength of the monies received - not from the buyers but from the 1^st Defendant. 

32.  On the pleaded case of the 5^th, 8^th and 10^th Defendants, I do not accept that it has been shown that there is any triable issue for an arguable defence of detrimental change of position, such that it would be inequitable to require these Defendants to make restitution to the Plaintiff.

33.  As for the defence of the 5^th, 8^th and 10^th Defendants being bona fide purchasers for value, the Court explained in Shanghai Tongji Science & Technology Industrial Co Ltd (2004) 7 HKCFAR that it is critical to identify and correctly characterize the transaction providing the basis for the enrichment, for the purposes of identifying the relevant consideration or anticipated performance, and ascertaining whether it had totally failed.  The 5^th, 8^th and 10^th Defendants have not been able to show by credible evidence that there was a transaction, or any business dealings or connection whatsoever, between them and the 1^st Defendant - from which the money had been received, and for which the Defendants had provided consideration. 

The case against the 7^th Defendant

34.  The case of the 7^th Defendant is more substantial in terms of the evidence adduced.

35.  The 7^th Defendant is one of the largest importers of frozen meat products in Hong Kong, its customer base consisting of wholesalers, retailers, hotels, airlines, supermarkets, department store chains, fast food chains, sports clubs, food factories, restaurants and cafés.  One of its customers is Mr Mu Wenshu (“MW”), the sole proprietor of a frozen meat business on the Mainland, trading under the name of Uwealth Trading Limited (“UT”).

36.  The 7^th Defendant claims that the sum of US $221,115 paid into its account with Bank of China on 29 March 2017 (“7^th Sum”) was received by it as payment for the price of frozen products it had sold to UT.  In support, the 7^th Defendant claims that it had purchased frozen meat products from a supplier, JBS SA of Brazil (“JBS”), by a purchase order dated 13 December 2016, and from another supplier, Offal Esp SA of Argentina (“Offal”), by a purchase order dated 29 December 2016.  In December 2016, the 7^th Defendant’s salesperson contacted UT, which approach led to orders being placed by UT with the 7^th Defendant for the purchase of frozen meat products on 2 occasions, as evidenced by 2 invoices issued by the 7^th Defendant to UT.  The first was invoice No P 530967 for US $100,748.42 in respect of the products sourced from JBS.  The second was invoice No 531118 for US $120,150 in respect of the products sourced from Offal, the total amount being US $220,898.42.  Offal issued an invoice dated 26 February 2017 in respect of the products sold and shipped to the 7^th Defendant, in the sum of US $113,400, and JBS issued an invoice dated 28 February 2017 in respect of the products sold and shipped to the 7^th Defendant, in the sum of US $97,850.78.

37.  The Plaintiff has highlighted the fact that the invoices issued by JBS and Offal, for US $211,250 in total, do not tally with the invoices issued by the 7^th Defendant to UT, which were for US $220,898.42.

38.  The Plaintiff further pointed out that in respect of the invoices issued by the 7^th Defendant, apart from the name of UT, there were no other stated details of the purchaser, such as its address, telephone or fax number.  Even the name, address and contact details of the 7^th Defendant are conspicuously absent in the purported invoices.

39.  The 7^th Defendant claims that it had made payment to both JBS and Offal for the products purchased.  However, the evidence of the 7^th Defendant’s payment shows that the amounts paid do not tally with the amounts stated in the relevant invoices of JBS and Offal.  The 7^th Defendant sought to explain that the payments include deposits for other products purchased from JBS.  This may not be unusual, in the case of consistent dealings between trading companies. However, the explanation offered by the 7^th Defendant, that part of the difference represents bank charges of US $215.69 in respect of remittances, is not entirely credible, when other documents show that the fees charged by the bank were only US $1.9.

40.  The 7^th Defendant cannot dispute that the 7^th Sum was received from the 1^st Defendant, and not UT which it claims was the purchaser of the products.  The 7^th Defendant, and MW who gave evidence on the 7^th Defendant’s behalf, both admit that they did not know the 1^st Defendant, and had no direct dealings with the 7^th Defendant.  The 7^th Defendant had no knowledge why the 7^th Sum was remitted to its account by the 1^st Defendant. 

41.  However, the 7^th Defendant claims that in the course of its dealings, it had received payments from entities which were not its customers, on at least 9 other separate occasions. 

42.  The Plaintiff argued that the 7^th Defendant had no basis to claim that the windfall it had received from the 1^st Defendant, a complete stranger, was in fact received as allegedly rightful payment for the 7^th Defendant’s sale of frozen meat products to UT.  According to the Plaintiff, there is no evidence to show any link between the 7^th Sum paid into the 7^th Defendant’s account, and the purported payment claimed to have been made by UT, the alleged buyer of products from the 7^th Defendant.

43.  According to the evidence of MW, adduced for the 7^th Defendant, MW had made inquiries with regard to the arrangements for the deposit of the 7^th Sum into 7^th Defendant’s account.  In short, MW claims that due to exchange controls on the Mainland, UT had to pay RMB to remittance and currency exchange agents on the Mainland, and these agents would arrange for US dollars to be paid into the 7^th Defendant’s bank account in Hong Kong.  Foreign exchange agents would give MW confirmation of such remittance, MW would inform the 7^th Defendant of the remittance of the purchase price into its bank account, and after checking that the funds had been received in its bank account, the 7^th Defendant would release the relevant documents to UT, to enable UT to collect the products at the container terminal.

44.  There is no evidence of any direct payment by UT to the 7^th Defendant.  However, there is some evidence of arrangements having been made by MW through an intermediary, Mr Ma (“Ma”), and instructions by MW to Ma to remit US $221,115 to the 7^th Defendant, and instructions by Ma to MW to pay RMB into the account of one Mr Chen (“Chen”).  According to MW, the confirmation he received from Ma showed that the US dollar amount had been paid by the 1^st Defendant into the account of the 7^th Defendant on 30 March 2017, but he had no idea of the identity of the 1^st Defendant, nor had Ma ever mentioned the role and name of the 1^st Defendant to him.

45.  After the commencement of these proceedings, MW had made further inquiries and discovered that Ma was in fact another intermediary, that the remittance of the US dollar amount had been arranged through Ma’s contact, XJ, and that XJ had in turn received the US remittance confirmation from his contact, AC.  Ma did not know, and did not directly deal with, the 1^st Defendant.  The Plaintiff highlighted the fact that no affidavit evidence has been adduced by Ma, or the other intermediaries, to corroborate the 7^th Defendant’s case as pleaded.  Nevertheless, there is evidence that MW, as purchaser, gave instructions for the payment of a sum, largely representing the price, into the specified account of the 7^th Defendant, the vendor.

46.  I bear in mind indications made by the court, that the mere use of and resort to “underground banking systems” is not sufficient to find guilt, or lack of good faith (eg Arrow ECS Norway AS v Xin Cheng Holdings (International) Company Limited HCA 239/2016, 12 May 2016).  It has to be proved that the recipient knew or had reason to believe that the money received had an illicit source.

47.  On the evidence as available, I accept that there is no direct relationship between the 7^th Defendant’s receipt of the 7^th Sum and its payment to its suppliers.

48.  Yet, I accept that the defence of change of position in good faith to a claim in restitution is fact sensitive, as the Court of Appeal indicated in paragraph 20 of its judgment in Liu Ke Mian Lorraine v De Xin Da Trading Co Ltd HCMP 1481/2016, 30 September 2016.  In relation to the 7^th Defendant in this case, it cannot be said that there is a total absence of evidence to show that UT had arranged for payment to be made to the 7^th Defendant, in respect of the products purchased by UT from the 7^th Defendant.  The 7^th Defendant’s case is that as one of the largest importers of frozen meat in Hong Kong, it deals with voluminous transactions on a daily basis, and it is not possible, and not its usual practice, to verify the details of each and every transferor for each transaction.  This is not incredible.  On receipt of payment from its customers, it would utilize the proceeds of sale to pay its own suppliers.  The 7^th Defendant claims that in reliance on the receipt of funds from UT, it had made payment to other overseas suppliers, in the usual and ordinary course of its business, between 30 March 2017 and 5 April 2017, in a total sum exceeding US $2.6 million.

49.  Whilst the evidence produced by the 7^th Defendant may not be perfect or complete at this stage, I accept that what the 7^th Defendant has produced may show an arguable defence of change in position in good faith.  The facts as to the causal connection between the receipt of payment from UT and the payment to the overseas suppliers will have to be further tested after discovery and by cross-examination at trial, but I am prepared to give the 7^th Defendant leave to defend for this to be tried. 

50.  Whether or not the 7^th Defendant’s use of funds received from unknown sources constitutes turning a blind eye, and lack of good faith, also depends on further factual evidence to be adduced and determined at trial.

The case against the 9^th Defendant

51.  On 31 March 2017, US $1,941,968 was transferred from the Plaintiff’s bank account into the SCB Account of the 1^st Defendant as a result of the fraud.  On the next day, the sum of US $547,152 was transferred from the SCB Account of the 1^st Defendant into the 9^th Defendant’s two bank accounts (9^th Sum).

52.  The 9th Defendant claims that it was acting at the material time as agent for one Mr Yung on the Mainland (“Yung”), who would purchase frozen meat from various suppliers in Brazil, for shipment to Hong Kong and then to the Mainland.  The 9th Defendant pleads that it acted as Yung’s agent in making payment to the suppliers, completing the relevant paperwork for import of the products into Hong Kong, and transporting the products on Yung’s instructions. 

53.  The pleaded case of the 9^th Defendant is that the 9^th Sum was received in its bank account on 31 March 2017.  The 9^th Defendant was informed by Yung’s staff that the 9th Sum had been deposited, and on 3 April 2017, it was instructed to make payment to Yung’s suppliers with the money deposited.  Payment was made by the 9 Defendant on 3 April 2017, in 5 tranches.  The 9^th Defendant claims that it was a bona fide recipient of the 9^th Sum, and that it had changed its position by paying out the 9^th Sum to the suppliers, which it would not have done but for the receipt of the money and the instructions from Yung.

54.  I accept the submissions made on behalf of the Plaintiff, that there are contradictions and inconsistencies in the pleaded case and the evidence produced by the 9^th Defendant.  Although the 9^th Defendant’s plea in its defence is that “Yung would purchase frozen meat products from suppliers” in Brazil, and that the 9^th Defendant was acting as its agent, the documents produced show that the orders with the suppliers were all placed by the 9^th Defendant.  On the face of the documents, the 9^th Defendant is itself the purchaser of the products and the party contractually bound to pay the suppliers, and there is no further evidence from the 9^th Defendant to explain the anomaly.

55.  There is in fact no evidence at all to coorborate the 9^th Defendant’s assertion of the existence of Yung as its principal.  The messages on deposits made into the 9^th Defendant’s bank account were all from one Fong, and not Yung.

56.  As highlighted by the Plaintiff, there is no correlation between the 9^th Sum received by the 9^th Defendant from the 1^st Defendant, and the total sum of US $578,554.16 said to have been transferred by the 9th Defendant to the suppliers in Brazil. This transfer was made in 5 tranches, and there is no apparent reason for the 9^th Defendant to make the last transfer of US $10,000, when the total of the first 4 tranches (US $568,554.16) already exceeds the 9^th Sum received by the 9^th Defendant, for the purported purpose of settling the price of the products sold to Yung.

57.  There is no credible evidence of any causal connection between the receipt of the windfall from the 1^st Defendant, and the 9^th Defendant’s subsequent payment to the Brazilian suppliers, or that the payment to the suppliers would not have been made by the 9^th Defendant in the ordinary and usual course of its business, either as agent of Yung as the 9^th Defendant alleges, or as purchaser of the products, as the documents show. 

58.  On the 9^th Defendant’s own evidence, the 9^th Sum was also used to pay the salary of its employee.  Such payment is expenditure in the ordinary and usual course of the 9^th Defendant’s business, and cannot credibly be said to have been made only because of the receipt of the 9^th Sum.

59.  There is no explanation or evidence as to whether the frozen meat products had been received, or delivered to Yung.  In any event, I accept the submissions of the Plaintiff that the 9^th Defendant clearly has recourse against Yung for payment.

60.  The 9^th Defendant has not in any way condescended to particulars or provided any evidence of its assertion that the 9^th Sum had been mixed with its own funds.

61.  In all the circumstances, the 9^th Defendant has not shown that there is any triable issue for any arguable defence, and summary judgment should be entered against it.

Disposition

62.  For all the foregoing reasons, summary judgment as sought is entered against the 2^nd, 5^th, 8^th, 9^th and 10^th Defendants, in terms of the Order 14 Summonses, with interest at judgment rate from date of Writ to date of payment.

63.  Leave is granted to the 7^th Defendant to defend the Plaintiff’s claims, with costs in the cause.  The Plaintiff and the 7^th Defendant should submit within 14 days agreed directions for the further conduct of the action.