SINOM (HONG KONG) LTD v. SWATI INTERNATIONAL

HCA2493/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.2493 OF 2004

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D E C I S I O N

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1. The defendant took out a summons on 25 April 2005 to set aside a Mareva injunction granted ex parte by Suffiad J on 1 November 2004 and continued by Deputy Judge Mayo on 5 November 2004. 

2. The summons was originally due to be heard on 3 May 2005.  By consent, it was adjourned for the plaintiff to file an affirmation in response within 21 days, and the defendant to file an affirmation in reply, if any, 14 days thereafter.

3. The plaintiff only filed the affirmation 2 days before the hearing on 16 September 2005.  The defendant objected to the filing unless with adjournment on indemnity costs.  The plaintiff proceeded with the hearing without the affirmation, and did not insist on filing when the hearing was adjourned part heard.  On 7 October 2005, the plaintiff took out a summons for leave to file further affidavit.  The summons was dismissed by Deputy Judge Muttrie on 20 October 2005 with costs reserved to myself.

Background

4. The plaintiff is a Hong Kong company.  The defendant is an Indian partnership served outside jurisdiction.  The plaintiff contracted to buy iron ore from the defendant under two contracts both dated 9 October 2004 (“October Shipment Contracts”).  The choice of law clause stipulated Hong Kong law, and the non-exclusive jurisdiction clause stipulated the Hong Kong Courts.  The plaintiff is suing for breach of contract by reason of non-delivery.

5. The October Shipment Contracts were C&F contracts.  The material terms are identical.  Clause 7 provided for payment as follows :

“	Clause 7 Payment
	The buyer shall establish an irrevocable and non-transferrable Letter of Credit at sight within 5 working days after signing of this contract in favour of the seller, for an amount in US Dollar sufficient to cover 100% value of the shipment to be made for provisional payment and final payment …”

And Clause 17 provides that :

“	Clause 17 Amendment of the Contract
	The contracting parties shall make any amendment or modification in this contract in writing and subject to confirmation of the other party.”

6. The October Shipment Contracts were amended by Addendum 1 dated 19 October 2004 signed by both parties.  Addendum 1 replaced payment by letter of credit (“L/C”) by telegraphic transfer (“TT”) within 3 banking days after receipt of the full set of valid cargo documents.

7. The subject cargo was laden on board MV Grand Pescadores, but there was a dispute as to the payment of freight.  The defendant said they had no fund and requested the plaintiff to pre-pay the freight of US$192,197.19 by TT.  Before the freight was paid by the plaintiff, the defendant sold the cargo to another buyer Fremery Shipping (Hong Kong) Ltd (“Fremery”).  The injunction prohibited the removal from Hong Kong assets within Hong Kong up to US$180,000.

8. There are factual disputes on Addendum 2 and Addendum 3 to the October Shipment Contracts.  The contemporaneous documents which are not in dispute will be set out as background.

9. By a letter dated 19 October 2004, the defendant requested the plaintiff to pay the ship owners directly, and authorized the plaintiff to pay the fright and would deduct the same in the provisional invoice.

10. On 22 October 2004 at 14:39 (HK)/12:09 (India), the plaintiff faxed Addendum 2 to the Defendant for signature.  Addendum 2 stated:

“	Its is hereby agreed by and between the both parties of Buyer and Seller to the above contract which shall be revised as follows :
	Clause 7 Payment
	Buyer will make [USD95,208.98 and USD96,688.10] TT Advance payment after signing the contract.”

11. Addendum 2 also provided for the payment of the balance of the shipment value by (a) provisional payment of 98% by L/C; and (b) final payment of 2% upon certificate as to the quality by the umpire.

12. On 25 October 2005 at 09:56 (HK)/07:26 (India) and 12:45 (HK)/10:15 (India), the plaintiff faxed Addendum 3 to the defendant.  Addendum 3 stated:

“	Clause 7 Payment
	The Buyer shall establish an Irrevocable & non-transferable Letter of Credit at sight before 26 October 2004 in favour of the Seller, for an amount in US Dollar sufficient to cover 100% value of the shipment to be made for provisional payment and final payment…”

13. On 25 October 2004 at 3:31 pm (HK)/01:01pm (India), the defendant faxed a signed copy of Addendum 2 back to the plaintiff.

14. On 25 October 2004 at 5:19 pm (HK)/2:49 pm (India), the defendant faxed to the plaintiff a letter as follows:

“	We hereby confirm that no Letter of Credit is required from your company as your USD 200000 is already lying with us and the same shall be adjusted in the provisional invoice the regarding balance payment you shall remitt (sic.) it as you get back your funds cleared.
	The documents shall be handed over to your office directly once you pay the freight payments to the vessel owner which is USD 192,197.10.”

15. On 25 October at 5:41 pm (HK)/3:11 pm (India), the plaintiff sent an e-mail to the defendant (“1^st e-mail”) as follows:

“	… Please ref the call with Ms. Claire, we hereby reiterate as following:
	Please sign back the new addendum x-udd (sic.) on LC only, not deduct the freight.  This mail has sent to you this morning.  The previous addendums should be cancelled at the same time.  We will open the LC for you tomorrow.  Please submit all the necessary docs to our banker within tomorrow if time allow.”

16. On 25 October at 6:20 pm (HK)/3:50 pm (India), the defendant sent an e-mail to the plaintiff (“2^nd e-mail”) as follows:

“	We have clearly mentioned that our company is not having any funds to remitt (sic.) the freight payment, and it was upon your request we have diverted the cargo to your company, and you have promised to release the freight payment on Monday that is today.
	In spite of your commitments we have been asked to take the l/c which is of no use to us now.
	(If) u would have mentioned it earlier we would have arranged it earlier.
	Hope to receive the same help and co-operation from your end so that the owners get paid at the earliest.”

17. Both parties agreed that there was an urgent meeting on 26 October 2004, but disagreed as to the outcome.  The plaintiff alleged that it agreed to pay the fright by TT first, thereafter the defendant would send the original shipping documents to enable the plaintiff to take delivery and to sell the cargo and to use the proceeds to pay the defendant.  The defendant alleged that there was no such agreement as the plaintiff insisted that it would pay the freight only if the defendant sent the original shipping documents to the plaintiff’s office in Shanghai.

18. On 13 November 2004, the ship owners e-mailed the defendant demanding freight of US$192,197.19 and demurrage of US$34,591.65.

19. It transpired that the sale to Fremary on 27 October 2004 was at a lower price than the October Shipment Contracts.

Issues

20. The issues in this case are:

(1)	Material non-disclosure;
(2)	Merits of the case;
(3)	Risk of dissipation.

Relevant principles

21. The applicant for an ex parte Mareva injunction is under a duty to act in utmost good faith and must disclose to the court all matters which are material to be taken into account in the weighing process, whether for or against the applicant.  It does not matter whether had the non-disclosure not occurred, the judge would nevertheless have made the order.  Materiality is to be judged objectively, and there is no excuse for the application to say he was unaware, or did not believe the facts were relevant.  The skeleton argument must present a comprehensive and fair picture for the judge.  It is not sufficient to exhibit a contract without referring to any specific provision relevant to the court’s consideration.  The applicant must identify arguable defence reasonable open and expected to be raised by the defence, especially issues which have been raised during the course of dealings of the parties.  The court has a discretion to discharge the Mareva injunction occasioned by material non-disclosure.  But the court’s consideration is not so much what happened in the past, but what should happen in the future.  The punishment should not be out of all proprietors to the offence.  The court has to consider the substantial merits of the case and/or balance of convenience.

22.  In Cheung Kam Wah v. Cheung Hon Wah & ors [2005] 1 HKC 136, Woo VP said that upon being satisfied that there was material non-disclosure at the ex parte stage, the ex parte order so obtained should, without more ado, be discharged.  His Lordship referred to Brink’s Mat Ltd v. Elcombe & ors [1988] 1 WLR 1350 per Balcombe LJ at p.1358F that the discretion to continue the injunction or grant a fresh injunction upon material non-disclosure should be exercised sparingly.

23. In Yan Chi Wah v Gold Chief Investment Ltd. (HCA 807/2001, 15 May 2001), Recorder Ma SC (now Ma CJHC) spoke on the discretion whether or not to set aside the existing order or to grant a new injunction :

“	Of the relevant factors that a court would consider in the exercise of its discretion, they would include the following:
	1.	Whether the non-disclosure was innocent or deliberate.
	2.	The excuse of reason of such material non-disclosure.
	3.	Whether the non-disclosure would in fact have resulted in the original order not having been made in the first place or whether, conversely, even if the material fact or facts have been disclosed, this would have made no difference.
	Here, the court is required to look at the merits and justice of the grant of a Mareva injunction.
	4.	Whether the party guilty of the non-disclosure is deserving of a locus poenitentiae.”

Ex parte application

24. At the ex parte application for the Mareva injunction, the skeleton argument of Mr. Kerr stated that the plaintiff and the defendant entered into 3 contracts.  Under the July Shipment Contract, the plaintiff made an advance payment of US$200,000 and the defendant failed to ship the cargo.  Under the October Shipment Contracts, the defendant sold the cargo shipped to Fremery, presumably because price of steel had risen by US$15, or maybe to avoid giving credit for US$200,000.  It was said that the ship owner would exercise a lien over the cargo for the unpaid freight.  Fremary had agreed to pay the freight but had not yet done so.

25. The skeleton argument submitted that the plaintiff’s case against the defendant was in reality unanswerable.  The defendant wrongfully sold the cargo to someone else.  It was a clear breach of contract.  Clearly that the defendant had acted dishonestly.  The defendant’s conduct in this case was nefarious, with total disregard to its contractual obligation.  The previous conduct in the course of dealings with the plaintiff has exhibited an unacceptably low standard of commercial morality, and there is danger that the defendant would not shrink from attempting to defeat the interests of the plaintiff under any judgment that might be obtained.

26. In the Full and Frank Disclosure section of his skeleton argument for the ex parte injunction, Mr. Kerr has disclosed that it is possible that there might be dispute as to the applicable terms of the contract, and various addenda to the contract were signed but some were not signed, however, the addenda do not in any way alter the defendant’s obligation to sell the cargo.

27. The Affirmation of Ho Fung Man in support of the ex parte application stated that:

(1)	The defendant has defaulted shipment under the July Shipment Contract.  The contract stipulated payment by L/C.  The defendant asked for advance payment due to cash flow problem.  The plaintiff paid US$200,000, and applied for an irrevocable L/C.  The defendant failed to nominate the vessel.  As at the date of the application for Mareva injunction, no shipment has been effected.
(2)	After the October cargo was shipped, the defendant asked the plaintiff not to open a L/C but to make payment by TT.  The plaintiff agreed (as in Addendum 1).  Then, the defendant requested the plaintiff to pay first the freight directly to the owners of the vessel.  In an e-mail dated 20 October 2004, the plaintiff agreed to pay the freight on receipt of the full set of shipping documents.  However, the management of the plaintiff re-considered the method of payment.  On 25 October, the plaintiff informed the defendant that payment would be by L/C only.  On 26 October 2004, the plaintiff opened two L/C’s.  On 26 October, the plaintiff and the defendant had an urgent meeting to discuss freight, and in the end, the plaintiff agreed to pay the freight by TT, and thereafter the defendant would sent the original shipping documents to the plaintiff to take delivery.  The plaintiff would sell the goods and to pay the proceeds to the defendant by TT.  There was no inkling that the defendant was not to perform the contract.  On 27 October 2004, the defendant was unwilling to deliver the cargo on the pretext that its quality was below standard, and would endeavour to find another cargo.  This was a breach as the October Shipment Contracts which provided for price adjustment for sub-standard goods and the right to reject was with the buyer.  The defendant admitted selling the October cargo to another buyer, and refused to discuss the October Shipment Contracts, but switched to discuss the July Shipment Contract.  At 4 pm on 27 October, the plaintiff received a phone call from the ship owner’s broker inquiring why the plaintiff had not paid the freight as the defendant had informed them that the plaintiff was responsible for payment of the freight.  The plaintiff’s solicitors wrote to the defendant demanding them to rectify the breach.  The defendant has not responded.

Material non-disclosure

28. Mr. Stock for the defendant submitted that Mr. Kerr painted an unfair picture of the defendant by making material non-disclosure.  He glossed over the addenda by stating that they do not in any way alter the defendant’s obligation to sell the cargo, and failed to point out potential defence of the defendant.

29. The plaintiff disclosed 3 contracts only but failed to disclose another contract in July 2004 (“2^nd July Shipment Contract”) in which the defendant had already made shipment in partial performance of the July Shipment Contract.  The plaintiff also did not disclose 2 e-mails by the defendant in relation to the July Shipment Contract that the vessel had berthing problem due to congestion at the Haldia Port, and the defendant was searching for a suitable vessel.  These would give the full picture of the difficulties and lack of dishonesty of the defendant.

30. Mr. Stock submitted that Addendum 3 was not signed and of no effect.  Although Addendum 2 was not signed by the plaintiff, it was faxed by the plaintiff to the defendant and signed by the defendant.  Further, the fact that the plaintiff’s 1^st e-mail on 25 October 2004 suggested to cancel the previous addendums, which made it a strong arguable case that the contract was amended by Addendum 2 in that the plaintiff had agreed to pay the freight directly first.   

31. What is more serious is that the plaintiff failed to disclose the 2^nd e-mail.  Mr. Stock submitted that it is clear from the 2^nd e-mail that the defendant’s stance was that the plaintiff had already promised to pay the freight on 25 October 2005, and the defendant would not accept payment by L/C as proposed by Addendum 3. 

32. Mr. Stock submitted that Mr. Kerr failed to draw to the judge’s specific attention that the plaintiff’s reconsideration of the payment method to revert to payment by L/C might be a potential defence for non-shipment by the defendant. 

33. Mr. Stock pointed out that not only did the plaintiff fail to disclose 2^nd e-mail rejecting payment by L/C as per Addendum 3, it also failed to point out to the judge that :

(1)	the L/C’s eventually issued on 26 October 2004 were late even by the terms of Addendum 3;
(2)	the L/C’s were in any case useless since clause 47A(2) thereof provided that “shipment effected prior to the date of issuance of this credit unacceptable”, and the cargo had already been shipped.

34. Mr. Kerr submitted that according to the plaintiff’s case, Addendum 2 and Addendum 3 were agreed upon by the parties orally, each superceding the previous one, only that the requirement of writing under clause 17 was not complied with.  Be that as it may, at the meeting on 26 October 2004, the plaintiff agreed to pay the freight before getting the original shipping documents, and that superceded all the addenda.  That would be the same position even assuming Addendum 2 were binding, the only difference was as to the date of the agreement.  Whether it be on 25 or 26 October, it must have been reasonable to allow some time for effecting payment.  Hence, the defendant was not justified in selling the goods on 27 October.  That was the plaintiff’s disclosed position at the ex parte application. 

35. The plaintiff’s disclosed case was based on the true position as known to the plaintiff at the time.  The plaintiff’s solicitors wrote to the defendant on 27 October 2004 alleging breach of contract by sale to third party, yet the defendant had not responded by the time of the application of the Mareva injunction.  The plaintiff could not have expected the defendant to take the point on the lack of writing of Addendum 3, a point which only surfaced in the Defence in April 2005 after the defendant had ingeniously researched the facts.  

36. Mr. Kerr submitted that having looked at the Defence filed, the 2^nd e-mail must be relevant.  But the plaintiff could not have guessed what the defence could be, given that the defendant never complained in correspondence about the breach of Addendum 2, nor demanded the plaintiff to pay the freight forthwith, or else the cargo be re-sold.  The plaintiff’s solicitors wrote to the defendant on 27 October 2004, and the defendant simply walked away without responding.

37. At any rate, the letter dated 25 October 2004 by the defendant to the plaintiff stating that no L/C was required was disclosed.  It was to the same effect as the 2^nd e-mail.  The applicant for a Mareva injunction should not burden the court with voluminous exhibits.

38. Mr. Kerr submitted that the plaintiff was not really relying on the previous conduct save as to the advance payment of US$200,000, hence, only the July Contract was disclosed.  In any case, the 2^nd July Shipment Contract was not partial shipment under the July Shipment Contract.  Neither the 2^nd July Shipment Contract nor any correspondence referred to any partial shipment.  After the performance of the 2^nd July Shipment Contract, the correspondence concerning the performance of the July Shipment Contract did not refer to the shipment of any balance.

39. As to the L/C issued on 26 October 2004, unacceptability of shipment effected prior to the date of issuance was a standard term.  The payment term in the October Shipment Contracts envisaged amendment of the L/C, which is common place in export trade.  Had the discrepancy been drawn to the plaintiff, the L/C would have been amended.

40. Mr. Kerr referred to Dormenil Frères SA v. Nicolian International (Textiles) Ltd [1988] 1 WLR 1362 and submitted that the investigation of whether there was full and frank disclosure should be done at trial as there was no urgency in the matter.

41. I consider that the non-disclosure of the 2^nd e-mail is material.  It is trite that hearing on affidavits is not the forum for resolving factual disputes, especially oral agreement subsequent to written agreement.  More often than not the court has to resort to the contemporaneous documents to assess the arguability of the issues.  Whatever emerged from the meeting of 26 October 2004, it lied in oral evidence only.  If the plaintiff had agreed to pay the freight before receiving the shipping documents, yet the defendant still sold the cargo to Fremary, it is only reasonable to expect that the defendant would dispute the alleged oral agreement on 26 October 2004. 

42. The 2^nd e-mail forms the series of e-mails on 25 October 2005.  It contains the defendant’s allegation that the plaintiff promised to pay the freight on 25 October 2004, and Addendum 3 proposing payment by L/C was of no use.  I fail to see how the 2^nd e-mail was not relevant to the dispute at the time of the ex parte application, or that it would put an insuperable burden on the plaintiff in disclosure.  With respect, Mr. Kerr had presented an over-simplistic view of the matter by relying on the oral agreement and stating that the Addenda do not in any way alter the defendant’s obligation to sell the cargo. 

43. Whether or not the 2^nd July Contract was partial shipment under the July Shipment Contract, it is relevant to whether the previous conduct of the defendant was nefarious or dishonest.

44. The issue as to material non-disclosure is quite clear.  There is no need to wait until the trial for its investigation.  What perhaps needs to await the trial is the investigation of the merits of the case.

45. In the premises, I find there is material non-disclosure, at least in the 2^nd e-mail and the shipment under the 2^nd July Contract.  They would have introduced the element of commercial dispute as opposed to nefarious trading in the weighing process.  I view the non-disclosure very seriously as it produced an incomplete picture.  As such I shall order that the Mareva injunction be discharged.

Merits of the case

46. Mr. Kerr submitted that the plaintiff stood by its stance that the defendant was in clear breach of contract and the plaintiff’s case is in reality unanswerable.

47. Mr. Kerr submitted that if the defendant were to rely on clause 17 requiring Addendum to be signed, it should apply equally to Addendum 2.  Addendum 2 was not signed by the plaintiff and it was of no effect. 

48. Further or alternatively, Addendum 2 was signed and returned by the defendant after Addendum 3 was faxed over.  Insofar as Addendum 2 remained an offer by the plaintiff, it was revoked by Addendum 3 before its acceptance.  If neither Addendum 2 nor Addendum 3 were binding, the only binding agreement was Addendum 1.

49. Under Addendum 1, the plaintiff would make payment by TT after receipt of the full set of valid cargo documents.  But the defendant never handed over the bill of lading.  Because the plaintiff never had the bill of lading, it never paid.  There was no question of breach on the part of the plaintiff. 

50. Mr. Kerr submitted that even if Addendum 2 were binding, there is no stipulation that time of payment is of the essence, and hence, the defendant is not entitled to re-sell the cargo upon non-payment.

51. Mr. Kerr referred to section 12(1) of the Sales of Goods Ordinance (Cap. 26) :

“	Unless a different intention appears from the terms of the contract, stipulations as to time of payment are not deemed to be of the essence of a contract of sale. Whether any other stipulation as to time is of the essence of the contract or not depends on the terms of the contract.”

52. Mr. Kerr also referred to Benjamin’s Sale of Goods (6^th Ed., 2002) at 9-050 that if time is not of the essence, a default by the buyer in making payment at the time specified in the contract will not entitle the seller to treat himself as discharged from further liability and to resell the goods unless the buyer’s neglect or refusal to pay the price makes it plain that he is unwilling or unable to perform the contract.

53. The only stipulation as to time was payment by TT within 3 banking days after receipt of the full set of valid cargo documents under Addendum 1.  As no cargo documents was received, payment is not triggered.

54. Mr. Kerr submitted that although the sale to Fremery was at a lower price, it was highly suspicious as the defendant walked away without demanding the plaintiff to pay the freight.  The defendant said it feared the charge of substantial demurrage, and the exercise of the lien by the ship owner.  But even as at 13 November 2004, the defendant had not yet paid the freight.

55. Mr. Kerr submitted that Mr. Amit Kejriwal of the defendant was not credible when he said in his affidavit that MV Gou Shan had been fixed for the July Shipment Contract, when the fixtures notes exhibited were “subject details” and “subject stem”, which means that the shipping contract was conditional on minor details to be agreed, and subject to availability of the cargo on the date which the ship was offering to load.

56. In the circumstances, the plaintiff still has an unanswerable claim.

57. In reply, Mr. Stock pointed out that under clause 17 of the October Shipment Contracts, modification of the contract was to be in writing and subject to confirmation of the other party.  It was proposed by the plaintiff and signed by the defendant.  It did not mean that it had also to be signed by the plaintiff.  He referred to the Addendum to the July Shipment Contract being signed by the defendant only.

58. As to revocation of the offer in Addendum, in 1^st e-mail the plaintiff stated that the previous addendums should be cancelled, which suggested a strong arguable case that Addendum 2 was binding.

59. Mr. Stock also referred to Chitty on Contracts – Hong Kong (2004) at 11-090 that an implied or express term of the contract may make time of payment an essential condition.  In the context of a commercial transaction, a court would readily read such an implication in the contract.

60. Mr. Stock submitted that the defendant has a good arguable defence and counterclaim:

(1)	the plaintiff was in breach of the original October Shipment Contracts by failing to open the L/C within 5 days and the defendant was forced to accept payment by TT;
(2)	the plaintiff had promised to pay the freight to the ship owner direct on 25 October 2004 as per Addendum 2, but re-considered its payment method by reverting to L/C as per Addendum 3 which was rejected by the defendant;
(3)	since the plaintiff had failed to pay the freight as promised, the defendant had to sell to cargo to Fremery at undervalue in order to avoid the ship owner charging demurrage and exercising the lien to sell the cargo.

61. The agreement as to the payment terms is certainly a key issue in this case.  Whether Addendum 2 is binding is a question of mixed facts and law.  The parties also disputed the outcome of the meeting on 16 October 2004.  At this stage, I cannot presume the facts in favour of either party.  The burden is on the plaintiff is show a good arguable case.  I cannot be satisfied that the plaintiff has discharged the burden.

Risk of dissipation

62. Notwithstanding my finding on the merits, I shall consider the risk of dissipation.

63. At the ex parte application,the risk of dissipation was very much based on the previous conduct of the defendant as exhibiting an unacceptable low standard of commercial morality, and the nefarious conduct in this case with total disregard to its contractual obligation.

64. Further to the consideration of material non-disclosure and the merits of the case mentioned above, in the absence of any concrete allegation against Fremery, the sale at a lower price is prima facie contrary indication of mala fide.  The goal posts have certainly shifted from the position at the ex parte application.  The case has taken on the apparel of a commercial dispute.

65.  Mr. Kerr laid much emphasis on the fact that defendant was holding onto the US$200,000, and the July Shipment Contract was still not performed. 

66. Mr. Stock submitted that was red herring.  There is no claim of the US$200,000, and the course of dealing relating to the US$200,000, such as demand or the giving of credit is not fully disclosed.  Although the defendant is still holding onto the US$200,000, it is not at liberty to use the sum, and is liable to a claim to the plaintiff on the July Shipment Contract.  The freezing of its assets by the Mareva injunction will mean double jeopardy to the defendant. 

67. Mr. Stock also pointed out that the plaintiff failed to proceed expeditiously to trial.  No summons for direction has been taken out.  The hearing on the discharge was fixed in May 2005, but was adjourned for the plaintiff to file further affidavit.

68. Without a strong case of the defendant being a nefarious trader, I am not satisfied that there is a real risk of dissipation of assets.  It is up to the plaintiff to bring proceedings to recover the US$200,000, and to apply for a Mareva injunction thereon if so advised.  Hence, I do not see the balance of convenience in favour of the plaintiff either. 

69. In the premises, I refuse to re-grant the Mareva injunction.

70. I shall make an order nisi that the plaintiff do pay the costs of the application for Mareva injunction to the defendant, to be taxed if not agreed.  I shall also order costs nisi against the plaintiff on the application for leave to file further affidavit before Deputy Judge Muttrie.