NANYANG COMMERCIAL BANK, LTD v. SUNGRADE DEVELOPMENT LTD

HCMP 1844/2024

[2026] HKCFI 1085

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1844 OF 2024

________________________

________________________

________________________

_______________

D E C I S I O N

_______________

Introduction and Background

1.  At the hearing before me, I heard the following applications:

(1)  By Originating Summons dated 24 September 2024 (“OS”), the Plaintiff (“P”), a bank, seeks to recover monies and interests due under an all-moneys mortgage dated 11 November 2016 (“the Mortgage”) between the Defendant (“D”) as mortgagor, P as lender and Sunbase International Properties Management Limited as borrower (“Borrower”), and an order for vacant possession of the property charged under the Mortgage (“the Property”) under O.88 of the Rules of the High Court, Cap. 4A (“RHC”);

(2)  By Summons dated 27 June 2025 (“1^st Further Evidence Summons”), D seeks leave to rely on: (a) the 2^nd Affirmation of Yang Linda (“Yang”) dated 25 June 2025 (“Yang 2^nd”); and (b) the Affirmation of Tsang Kin Wai dated 25 June 2025, to oppose the OS;

(3)  By Summons dated 8 July 2025 (“Joinder and Conversion Summons”), D seeks for Yang to be joined as the 2^nd Defendant (“Intended D2”) in these proceeding and the OS to be continued as if it had been begun by writ; and

(4)  By Summons dated 26 August 2025 (“2^nd Further Evidence Summons”), D seeks leave to rely on: (a) the Affirmation of Lam Chi Keong (“LCK”) dated 25 August 2025; and (b) the Affirmation of Lam Tam Yuk dated 25 August 2025, to oppose the OS.

2.  By Facility Letters dated 19 June 2023 (“1^st Facility Letter”) and 14 July 2023 (“2^nd Facility Letter”), P granted general banking facilities to the Borrower including export invoice discount facility, revolving loan facility, term loan facility, overdraft facility and floating L/G facility. As at 14 April 2025, the total outstanding sum under these facilities is HK$55,315,299.18.

3.  P’s case is that this is a straightforward mortgage enforcement claim against D for loans advanced by P to D’s related company, the Borrower.

4.  It is not disputed that:

(1)  The Property was purchased in or around November 1989 in the name of D. At the time, Gao Gunter (“Gao”), Yang and LCK were the directors of D, and Gao and LCK were the shareholders of D holding one share each;

(2)  Gao and Yang are husband and wife;

(3)  At the time the Mortgage was executed, Yang held 1,999,999 shares in D whilst her sister Ms Yang Min (“Yang’s Sister”) held the remaining 1 share, and both Yang and Yang’s Sister were the only directors;

(4)  Furthermore, at the time the Mortgage was executed, Gao held 1 share in the Borrower whilst Sun Base International (Holdings) Limited (“Sunbase Holdings”) held 24,999,999 shares. As for Sunbase Holdings, Gao held 400 million shares, Yang held 200 million shares and the board of directors comprised of Gao, Yang, Liu Jun and Yu Bun (the latter who ceased to be a director in 2017); and

(5)  The registered offices of D, the Borrower and Sunbase Holdings at all material times were at the same address.

5.  In gist, D’s case is that:

(1)  Notwithstanding that Gao was no longer a director of D since about 2014, he remained the person in charge of the management of D. Yang, a housewife, was a mere nominee director who signed whatever documents Gao told her to sign. Gao never explained to Yang the operations of D;

(2)  The Property, their first matrimonial home, was intended to be a gift from Gao to Yang for her contribution to the family and for tax reasons, purchased in the name of D. The gift of the Property was completed when Yang became the majority shareholder of D (when 999,999 shares was allotted to her and 1 share to Yang’s Sister) in 2013. Yang treated the Property as her own, took care of the Property and engaged contractors for the improvement, maintenance and repair of the Property;

(3)  Yang has no recollection of signing the 1^st Facility Letter but recognized her signature therein and guessed that she signed because she was told to sign by Gao at D’s office without any explanation and treated it as a routine company document;

(4)  Yang has no knowledge of the 2^nd Facility Letter which was not signed by her/D or the Borrower;

(5)  Yang attended the solicitors firm (who represented P) to sign the Mortgage but as it was not explained to her she did not know the nature of the Mortgage. In particular, as the Mortgage was in English she could not understand the nature of the document (she was educated up to university level in the Mainland) and signed as a result of undue influence of her husband;

(6)  P should have known or be presumed to know the husband and wife relationship and the undue influence exercised by Gao but did not take reasonable steps to ensure the relevant documents were signed without undue influence and was fixed with constructive notice that she was the beneficial owner of the Property; and

(7)  She would not have executed the Mortgage and 1^st Facility Letter if she knew that it would result in the Property being charged and applied to pay off the loan owed to P.

Applicable Principles

6.  It is not disputed that at the hearing of an originating summons, the action may be disposed of summarily under O.28, r.4(1) of RHC where the court is satisfied that there are no triable issues. As pointed out by the authorities, such an approach is akin to an application for summary judgment under O.14, namely, once the plaintiff’s entitlement to summary judgment is demonstrated on the face of the evidence, the burden falls on the defendant to show that she has a credible defence to the claim. This is to be tested against the evidence adduced in the case as to whether the defence is inconsistent with the contemporaneous documents or the defendant’s previous admissions and stand. The court should also consider the inherent probability of the defence. However, the court should not conduct a mini-trial of the case on the affidavit evidence. See Golden Rich Finance Limited v Lam Sau Fa [2018] HKCA 952 at §2 per Cheung JA.

7.  As for the exercise of the court’s discretion under O.28, r.8 of RHC, the usual reason for an originating summons proceeding to be continued as if begun by writ is that there can be shown on the available evidence genuine or substantial issues of fact which require to be adjudicated and cannot be resolved on affidavit evidence. However, in deciding whether there is a substantial dispute of fact that should be resolved only after a proper trial, the Court will not take the assertions on their face value in isolation, but must undertake an assessment on whether the assertions are believable at all. Other relevant considerations include whether the procedural advantage of an action begun by writ, such as delivery of pleadings and discovery, justify the exercise of the power under O.28, r.8 and whether in so ordering the ultimate resolution of the dispute would be significantly delayed. If the issues of fact have been identified and can be properly resolved or the disputes of fact are not central to the court’s determination, the court is entitled to proceed to determine the action without converting it into a writ action. See Hong Kong Civil Procedure 2026, Vol.1, §§28/4/4 and 28/8/2 and Re: Estate of Chiu Keung [2020] 3 HKLRD 779 at §§58‑59.

8.  As for the joinder of parties under O.15, r.6(2)(b) of RHC, the test is whether there is a bona fide claim and a proper question to be tried between the plaintiff and the intended defendant that is necessary or just and convenient for resolution between them as well as between the plaintiff and the defendant in the proceedings. At the joinder stage, the court will not engage itself in scrutiny of the applicant’s case, or an adjudication of disputed facts. See Advanced Connection Limited v Able Technology (Hong Kong) Limited & Ors [2019] HKCA 1092 per Chu JA at §20.

Discussion

9.  Counsel for the parties (Mr Cheung and Mr Lau, appeared for P, Mr Chiu, appeared for D/Intended D2) agreed that the main focus should be whether D/Yang can show triable issues in relation to the defences raised. If not, this would dispose of both the Joinder and Conversion Summons and the OS.

10.  As for the 1^st Further Evidence Summons and 2^nd Further Evidence Summons, given that parties had liberally referred to those affirmations and were able to respond to them in their submissions, and no real prejudice has been demonstrated even though it was said that the applications were made late with no sufficient explanation for the delay, as I had indicated at the outset of the hearing, the further affirmations would be considered on a de bene esse basis.

11.  I am satisfied from the evidence before me that prima facie the sums claimed by P are due and owing from D. Mr Yau, an officer of P, has stated on affirmation the amount of outstanding indebtedness and given the “conclusive evidence” provision in clause 14(l) of the Mortgage, there can be no dispute on quantum. See Citibank N.A. v Dayaram Nanik & Anor (unrep) HCA 2145/2011, 3 June 2013 at §§50-51 per DHCJ Le Pichon.

12.  As for liability, in the Skeleton Submissions of Mr Chiu, it was contended that D is not bound by the Mortgage or the facilities on the following grounds:

(1)  D/Yang were subject to the undue influence of Gao in executing the Mortgage and the 1^st Facility Letter (“Undue Influence Defence”);

(2)  D/Yang rely on non est factum (“Non Est Factum Defence”); and

(3)  D held the Property on trust for Yang who is the beneficial owner of the Property (“Trust Defence”).

13.  I shall deal with each of the above defence in the order they were dealt with in oral submissions by Mr Chiu.

14.  In respect of the Trust Defence, it is axiomatic that a company is in its own right a legal person having a separate and distinct identity from its shareholders. Therefore, as a general rule, a company does not hold property as an agent or trustee for its shareholder or put in another way, a shareholder has no legal or equitable interest in the company’s properties as opposed to a right to share in the profits of its business and a distribution of any surplus on liquidation. It therefore follows that where the purchase of the property is made in the name of the company, the starting point is that the purchase was intended to vest both the legal and beneficial interest in the company. Where the shareholder claims that by providing the funds, the equitable interest in the property was intended to be vested in him personally by way of resulting trust, he bears the burden to rebut the inference by proving that the legal interest and equitable interest of the property were so vested in the company and him separately. See Lo Man Yau v Chiu Sung Fai & Anor [2018] 6 HKC 221 (CA) per Poon JA at §12 applied in The Hongkong and Shanghai Banking Corporation Limited v Fully Richest International Limited [2022] HKCFI 365 at §§31(4) and 40.

15.  Whilst Mr Chiu did not dispute the principles in the preceding paragraph, he relied on a Lo Man Yau at §13, which held that in a non-corporate context, there is a rebuttable presumption that the provider of funds of the purchase of the property has a beneficial interest in the property by virtue of a resulting trust.

16.  I respectfully disagree with Mr Chiu that the present context is “non‑corporate”. In the present case, what we are concerned is the liability of a company (D) which charged its property (held in a company’s name) as security for banking facilities granted by a company (P) to another company (the Borrower). Even having regard to the fact that certain individuals behind some of these corporate entities are husband and wife, the fact of the matter is that they chose to use corporate vehicles to enter into the relevant transaction. The present case plainly falls within the “corporate context”. In this regard, it is relevant to note that even on D’s case, it was a conscious decision to use a corporate vehicle to purchase the Property:

(1)  According to Yang, it was for tax reasons (see paragraph 15(b)(ii) of Yang 2^nd); and

(2)  According to LCK, in or around 1989 whilst he was told that Gao was interested to buy the Property as a gift to Yang as Gao did not have sufficient fund and was not able to obtain bank finance, Gao asked his good friend, Mr Lau (“Lau”) to lend him money. Lau lent the money to Gao and it was Lau who suggested to Gao that a shell company be purchased to hold the Property and 50% of the shares would be held by LCK on trust for Lau. Subsequently, there was a further loan by Lau to Gao and further shares allotted to Mr Lau. In 1996, all shares of D were transferred for consideration to Gao and Yang. (see paragraphs 8-11 of LCK’s Affirmation).

17.  The deliberate use of D to hold the Property and the alleged trust arrangements involving Lau and LCK (who were not family members) is not consistent with the submissions that this was a family or non-commercial context.

18.  Besides, even if Mr Chiu is right and a rebuttable presumption may arise that the provider of funds for the purchase of the Property has a beneficial interest, it was not suggested that Yang was the provider of funds so as to give rise to a resulting trust.  

19.  In so far as it is also alleged that there is a common intention constructive trust, it is only Yang’s and LCK’s bare assertion that the Property was intended as a gift to her. Conspicuously absent is any evidence from Gao on their common intention. Moreover, their assertions are contradicted by the following contemporaneous documents:

(1)  In the share purchase agreement dated 13 September 1996 entered into between Lau and LCK, as vendor, and Gao and Yang, as purchaser, it was stated that D was the registered and beneficial owner of the Property. Although this agreement was in English, Yang has not said that she did not understand the content before signing or that she was unduly influenced by Gao to sign; and

(2)  Clause 3 of the Mortgage which stated that D as beneficial owner charged the Property in favour of P.

20.  In so far as it was submitted by Mr Chui that the change in shareholdings of D in 2013 is consistent with D’s case that Gao intended to gift the Property to Yang, it is inconsistent with the above contemporaneous documents which more directly deals with the beneficial ownership of the Property. In any event, it is equally consistent with the common intention that Yang and Yang’s Sister were to be the beneficial owners of D.

21.  Moreover, it is trite that in order to establish a constructive trust alleged to arise on the basis of the parties’ common intention, apart from establishing the common intention of the property owner (D) and the party asserting to be the beneficial owner (Yang) that she was the beneficial owner and the legal title is held on trust for her, it is necessary to demonstrate that there was detrimental reliance on their common intention and it would be unconscionable for the property owner to depart from it.

22.  In the present case, in the affirmations of Yang, apart from saying that she took care of the Property and engaged the contractors for the maintenance and repair, she has not said that she paid for those out of her own funds. To the contrary, the contemporaneous documents she has produced show that receipts of those works were addressed to Sunbase Holdings.

23.  In all, having critically assessed the entirety of the evidence before me, I am of the view that the Trust Defence is plainly not credible as a matter of fact and not sustainable on proper legal analysis. No triable issues are raised which should go to trial.

24.  In respect of the Undue Influence Defence, it is not disputed that the mere fact that the wife reposed trust and confidence in the husband in relation to the management of her financial affairs in itself is insufficient to give rise to a presumption of undue influence. It is necessary for it to be coupled with the fact that the transaction is one that “calls for explanation” or “not readily explicable” by the relationship of the parties. See Royal Bank of Scotland Plc v Etridge (No. 2) [2002] AC 773 at §§14, 19, 21 and 30 per Lord Nicholls and §§158-160 and 162 per Lord Scott.

25.  As for transaction that calls for explanation, as also explained by Godfrey Lam J (as he then was) in Bank of China (Hong Kong) Ltd v Wong Kam Ho [2014] 1 HKLRD 41 at §29, this concept has been put in different ways such as a transaction that is “not to be reasonably accounted for on the ground of friendship, relationship, charity, or other ordinary motives on which ordinary men act”, and “constituted an advantage taken of the person subjected to the influence which, failing proof to the contrary, was explicable only on the basis that undue influence had been exercised to procure it”.

26.  In the present case, given that Yang was indisputably the majority shareholder of D and one of two directors, as well as an indirect shareholder and a director of the Borrower, at the time of the Mortgage, from P’s perspective, the execution of the Mortgage is readily explicable and did not call for explanation. Plainly, Yang stood to benefit if the Borrower’s business prospered through the loan facilities granted by P. See: DBS Bank (Hong Kong) Limited v Hui So Yuk & Ors (unrep) HCMP 1383/2008, 23 June 2009 per Suffiad J at §33 and Bank of Communications (Hong Kong) Limited v China Fortune Enterprises Limited & Ors [2025] HKCA 945 per Cheung JA at §27.

27.  Even if Yang was a mere nominee, and had no part to play in the negotiation of the Mortgage or other business affairs of D as alleged, as the wife of Gao, she would personally benefit from Gao’s business ventures doing well: see Bank of China (Hong Kong) Limited v Wong Kam Ho at §34.

28.  I see no reason why what Lord Nicholls said in Royal Bank of Scotland Plc at §§27-28 is not apposite to the present case:

“27. The problem has arisen in the context of wives guaranteeing payment of their husband’s business debts. In recent years judge after judge has grappled with the baffling question whether a wife’s guarantee of her husband’s bank overdraft, together with a charge on her share of the matrimonial home, was a transaction manifestly to her disadvantage.

28. In a narrow sense, such a transaction plainly (‘manifestly’) is disadvantageous to the wife. She undertakes a serious financial obligation, and in return she personally receives nothing. But that would be to take an unrealistically blinkered view of such a transaction. Unlike the relationship of solicitor and client or medical adviser and patient, in the case of husband and wife there are inherent reasons why such a transaction may well be for her benefit. Ordinarily, the fortunes of husband and wife are bound up together. If the husband’s business is the source of the family income, the wife has a lively interest in doing what she can to support the business.  A wife’s affection and self-interest run hand-in-hand in including her to join with her husband in charging the matrimonial home, usually a jointly-owned asset, to obtain the financial facilities needed by the business. The finance may be needed to start a new business, or expand a promising business, or rescue an ailing business.”

29.  Whilst Mr Chiu submitted that whether Yang stands to benefit from the facilities granted to D and whether the execution of the Mortgage was manifestly disadvantageous to Yang is facts sensitive and should go to trial, there is nothing but a mere assertion that the Mortgage was “manifestly disadvantageous to D with no apparent benefit offered to D nor myself” (paragraph 12 of Yang 1^st).

30.  On the contrary, Yang’s evidence is that Gao deeply cared about the family and was a responsible husband, and she never doubted or queried Gao’s handling of his business or family finances. She further said that prior to the previous three mortgages of the Property (which she also signed as directors of D) she was told that it was necessary for D to support the family business by mortgaging the Property. (See paragraphs 14 and 26 of Yang 2^nd). Thus given Yang has stated that she had no doubt on the ability and bona fides of Gao in handling the business or family finances, it is inherently incredible to suggest that the facilities and the Mortgage would not advance the interests of D and the Borrower to which as shareholder and as wife of Gao she would stand to benefit but rather there was an abuse of that trust and confidence by Gao. See Royal Bank of Scotland plc at §§159-160 and 162 per Lord Scott.

31.  Notwithstanding the abled submissions of Mr Chiu, I am simply not satisfied a triable issue is raised that Yang was unduly influenced by Gao in executing the Mortgage such that P was put on inquiry. Whilst Mr Chiu has cited a number of authorities, these have not been overlooked but, as he accepted, whether a transaction was brought about by the exercise of undue influence is a question of fact which depends on the facts and circumstances of each case. The cases relied upon do not take his case any further.

32.  As for the Non Est Factum Defence, it is well-established that this requires proof of 3 elements: (1) permanent or temporary inability to understand the document; (2) the document must be “fundamentally”, “radically” or “totally different”; and (3) the person signing must not have been careless. The burden on the person seeking to invoke the doctrine is a heavy one as a person of full age and capacity is normally bound by his signature on a document. See Bank of China (Hong Kong) Limited v Leigh Hardwick (Unrep) HCA 1110/2006, 28 August 2013, per Anthony Chan J (as he then was) at §§20-21 and Keswani Soshila v Kewani Motiram [2022] 2 HKLRD 822 per Chu JA at §§34‑35.

33.  In her affirmations, whilst Yang said that her understanding of English is minimal, she did not say and indeed cannot say (as a university graduate from the Mainland) that she does not read Chinese. Any suggestion that there was a permanent or temporary inability to understand the “Important Notice” appearing in Chinese on the front page of the Mortgage (which she has not said she did not see) is unsustainable.

34.  The Important Notice is as follows:

“	致借款人及按揭人的重要通知

鑑於本契據會對　閣下產生法律責任及債務，　閣下於簽署本契據前應先閱讀及理解有關條款及條件並宜尋求獨立之法律意見。

在不影響本契據之任何條文下，請按揭人注意以下事項：-

(1)  就簽署本契據，按揭人可能會取代或連同借款人，對借款人欠下或令本行招致之所有款項、責任及債務（若借款人由一人組成，不論是此人單獨或與其他人士共同欠下或令本行招致，或若借款人由兩人或以上組成，則只是該兩人或以上人士共同欠下或令本行招致）負上責任，不論該等款項、責任及債務是現時或於此後任何時間以任何方式（不論是以債務人身份或擔保人身份）於任何地方，以任何貨幣而欠下或令本行招致之所有款項、責任及債務（不論是過去、現在或將來的；不論是實際的或是或有的）。若按揭人由兩人或以上組成，按揭人之責任將為共同及各別的。

(2)  按揭人將以本契據附表所載列之物業（下稱「物業」）抵押或按揭予本行，以作為償還本契據第1.01(h)條界定的抵押債項之抵押品。

(3)  按揭人於本契據項下之最高債務限額為無限額。

(4)  按揭人須在本行要求時，支付借款人之所有款項、責任及債務（若借款人由一人組成，不論是此人單獨或與其他人士共同欠下，或若借款人由兩人或以上組成，則只是該兩人或以上人士共同欠下）。舉例來說（但並不限於以上原則，如借款人未能支付抵押債項（或其中任何部份）；或如按揭人及/或借款人已無償債能力；又或如對按揭人及/或借款人之破產或類似之法律程序正在進行中，按揭人將須按本契據付款。

(5)  本行有權（但沒有責任）在發生任何一項於本契據第5條戴列之違約事件後，接管及出售物業而毋須取得按揭人之任何同意。

(6)  本契據為一持績性抵押品。儘管如此，倘根據本契據第4.01條，按揭人全數支付本行於本契據項下擔保之所有款項、責任及債務；並向本行出示在本契據項下產生之抵押/按揭有效期內，就物業而應徵收之管理費、地租、差餉及物業稅（如有的話）之有關收據；及並無違反本契據中任何契諾、條款、協議或條件，按揭人於本契據項下之責任可被解除。

南洋商業銀行有限公司”

35.  Furthermore, the claim by Yang that she did not know the nature or legal consequences of the Mortgage that she was signing is also inherently unlikely given the fact, as already mentioned, that she had previously signed three other mortgages in respect of the Property. She said that she was told it was necessary for D to support to family business by mortgaging the Property. In particular, she was told the family business was stable and was generating secured and profitable income for the family and the mortgage of the Property would not affect her interest in the Property (see Yang 2^nd, paragraph 26). If that was the case, clearly she appreciated if the business was not profitable her interest in the Property would be affected.

36.  In any event, at the very least, she understood that the Mortgage would involve the use of the Property. Her assertion (see Yang 1^st, paragraph 10) that she would not have executed the Mortgage if she had known it would result in the Property being charged and applied to pay off the loan to P is incredible. Furthermore, properly analyzed, any suggestion that she was misled to believe the Mortgage did not affect the Property is not sustainable.

37.  In view of the above internal contradiction in Yang’s evidence and inconsistency with the contemporaneous document, it is entirely incredible that she did not know she was signing a Mortgage and the effect of the Mortgage and that it was fundamentally, radically or totally different to what she thought she was signing.

38.  Besides, based on Bank of China (Hong Kong) Limited v Leigh Hardwick at §25, the fact that Yang knew she was signing formal documents for D but did not know the particular legal consequences does not make out a case of radical or total difference. I do not think that the case of Saunders v Anglia Building Society [1970] UKHL 5 (at 1016C-D and 1017A-E) relied upon by Mr Chiu assists. This is particularly when I do not accept the bare assertion that Yang was misled as to the nature of what she was signing. I have also not lost sight of what amounts to radical difference will depend on all the circumstances.

39.  In any event, Yang was plainly careless in executing the Mortgage without making the necessary inquiry as to its nature or effect, and even if she did so because of her trust placed on others. See Standard Chartered Bank (Hong Kong) Limited v Leung Shu Kan (Unrep) DCCJ 272/2007, 5 July 2007 per HHJ Thomas Au (as he then was) at §12 and Keswani Soshila at §41.

40.  For all the above reasons, I do not find that D has overcome the heavy burden for invoking the doctrine of non est factum. No triable issues are raised which are required to go to trial to resolve.

Conclusion and Disposition

41.  In all, I am satisfied that none of the defences raised in opposition to the OS raise any credible triable issue which ought to be tried. For the avoidance of doubt, I have reached this view not by a mini-trial on the affirmations filed but by an assessment of whether the assertions raised therein are reasonably capable of belief in light of the inherent probabilities, the undisputed background and contemporaneous documents.

42.  Accordingly, the OS can and should be disposed of summarily under O.28, r.4(1) in favour of P.

43.  The original of the Mortgage was produced and shown to me at the hearing. I am satisfied that the requirements under O.88, r.5 of RHC have been complied with.

44.  As I have found no triable issue raised by Yang, the joinder application should also be dismissed.

45.  I make the following orders:

(1)  D do pay P the sum of HK$55,315,299.18 together with interest on the principal sums of: (i) HK$8,994,497.98 at the rate of 11.5% per annum (i.e. HK$2,833.88 per day); (ii) HK$13,921,261.30 at the rate of 13.5% per annum (i.e. HK$5,148.96 per day); (iii) HK$9,500,000.00 at the rate of 11.5% per annum (i.e. HK$2,993.15 per day); (iv) HK$9,975,267.13 at the rate of 15.5% per annum (i.e. HK$4,236.07 per day) all from 15 April 2025 to the date of judgment and thereafter at judgment rate until full payment; and (v) the principal sum of HK$5,698,614.88 from the date of judgment at judgment rate until full payment (“Judgment Sum”);

(2)  Unless D do within 28 days after service of this order make full payment of the Judgment Sum, D do deliver to P vacant possession of the Property;

(3)  D do pay P’s costs of this action including the costs of this application on a solicitor and own client basis to be taxed if not agreed;

(4)  The 1^st Further Evidence Summons, Joinder and Conversion Summons and the 2^nd Further Evidence Summons be dismissed with costs to P on a solicitor and own client basis, to be taxed if not agreed; and

(5)  There be liberty to apply.

46.  Lastly, I thank counsel for their helpful assistance in this matter.