TSOI CHIK SANG, LAWRENCE AND ANOTHER v. CHENG HUNG KIT

HCA 4341/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 4341 OF 2003

____________

____________

_______________

J U D G M E N T

_______________

1.  On 30 March 2004, Master Levy gave summary judgment against the Defendant for the specific performance of an agreement in Chinese dated 1 October 2003 relating to the sale and purchase of shares in two limited companies for the total sum of $20 million.  From that judgment given under O. 86, the Defendant appeals to this Court.

2.  I will not recite in detail the background of the dispute.  It is well known to the parties themselves, who should have no difficulty in understanding the reasons I give in this judgment for my decision.

3.  Suffice to say that both the Plaintiffs and the Defendant are shareholders in two limited companies, carrying on business in the manufacture and sale of cakes.  For all practical purposes, the Defendant is the majority shareholder owning more than 50% of the issued shareholdings in the two companies, whereas the Plaintiffs are minority shareholders in the two companies.

4.  It is common ground that in recent years, the two sides did not see eye to eye with each other and were not on speaking terms.  Eventually through the efforts of a Madam Siu (also known as Madam Chan), the two sides entered into negotiations for the sale of the Plaintiffs’ shares in the two companies.

5.  The Plaintiffs say that as a result of the negotiations, the parties reached an agreement, which was reduced to writing – the agreement in Chinese dated 1 October 2003 (page 74 of the hearing bundle) for the sale of the Plaintiffs’ shares in the two companies to the Defendant at the price of $20 million.  The agreement was signed by the 1^st Plaintiff on behalf of the Plaintiffs, and by the Defendant himself.  A witness (Mr Ng) also signed the agreement. 

6.  It is the Plaintiffs’ case that originally, it was agreed (as per the original clause 9) that completion of the sale and purchase should take place 30 days after the signing of the agreement.  However, it is the Plaintiffs’ case that shortly after the signing of the agreement, the Defendant asked for an extension of the completion time to 30 days after the signing of the agreement.  The Plaintiffs agreed to the requested extension on the condition that a deposit of $5 million be paid by the Defendant to the Plaintiffs 15 days after the signing of the agreement.  This was agreed to by the Defendant, and accordingly the signed agreement was amended in that the reference to 14 days in clause 9 was changed to 30 days, and a handwritten clause in Chinese regarding the payment of a deposit of $5 million by the Defendant 15 days after the signing of the agreement was added.  The handwritten clause was countersigned by the Defendant. 

7.  The Plaintiffs say that in wrongful breach of the agreement (as amended), the Defendant refused or failed to pay the deposit or otherwise to complete the sale and purchase of the shares. 

8.  The Plaintiffs thus commenced the present action against the Defendant on 25 November 2003, and as mentioned above, successfully obtained an order for specific performance under O. 86 on 30 March 2004.

9.  In short, the Defendant’s case is that throughout he had no intention or financial ability to personally acquire the shares from the Plaintiffs’ side.  His intention was to find, if possible, a willing buyer to take up the shares, so as to, putting it bluntly, get rid of the Plaintiffs from the two limited companies, and get on with the businesses of the companies.  He reposed trust and confidence in Madam Siu, who acted as a go-between in negotiating the terms on which the Plaintiffs’ side would be prepared to sell their shares.

10.  The Defendant accepts that on 1 October 2003, upon the request of Madam Siu, he did sign a document in Chinese, for the sale and purchase of the shares at $20 million.  He says that before he signed the document, he noted that the document (prepared by Madam Siu) wrongly described him as the purchaser of the shares.  He immediately told Madam Siu to amend the wording, who promised him to do so.  In reliance on her promise and undertaking that she would appropriately amend the wording, he signed the document.

11.  The Defendant further says that a day or two later, Madam Siu approached him and asked him to sign a similar document in Chinese, claiming that the document signed on 1 October 2003 had been mislaid.  He signed as told.

12.  Yet several days later, the Defendant met Madam Siu who told him that the Plaintiffs would require a deposit payment in the sum of $5 million to be made within 15 days by the purchaser, if any, to be procured by him and she had added a clause to the signed agreement accordingly (– which however said that the Defendant was to pay the deposit).  The suggestion was agreeable to the Defendant who however told Madam Siu that the deposit should be paid to a solicitors’ office and a formal agreement should be prepared at the solicitors’ office for the parties to sign.  The Defendant also noted that the description of the purchaser in the Chinese document that Madam Siu showed him on that occasion had not yet been amended as he had required.  The Defendant says that again in reliance on the oral undertaking of Madam Siu that suitable amendment would be made to the wording of the Chinese agreement (regarding his capacity and the payment of deposit), he signed his name beneath the handwritten clause at the bottom of the Chinese agreement (which said that a deposit of $5 million would be paid by the Defendant 15 days after the signing of the agreement).

13.  It is further the Defendant’s case that in the presence of some other witnesses (including Mr Ng), he and Madam Siu had a late night meeting on 7/8 October 2003, in which pursuant to further negotiations and discussions, Madam Siu eventually made amendments to a Chinese document (which had already been signed by the 1^st Plaintiff – see below) so as to reflect what the parties had actually agreed.  The Defendant says that after all this was done, Madam Siu took the Chinese document (as amended) to a 7-Eleven store for photocopying.  Yet for no good reasons she did not return until several hours later.  When she returned, she simply told the Defendant that she no longer had the document (as amended) with her, which she said had been given by her to the 1^st Plaintiff.  Neither did she have any copy to give the Defendant, so she (allegedly) told the Defendant.

14.  The Defendant has, for the purpose of the present proceedings, sought to “reconstruct” the document as amended by Madam Siu, and he has exhibited his reconstructed version to one of his affirmations (page 166).  In the reconstructed version, the purchaser was described as the Defendant “representing purchaser or acting as an agent”.  Furthermore, the amendment provided for the vendor and purchaser attending a solicitors’ office to prepare formal documents for the sale and purchase, so as to confirm the deal between the parties.  The amendment also provided for the payment by the purchaser of a deposit of $5 million at a solicitors’ office and that if during the agreed period the deposit was not paid the deal would become void. 

15.  Mr Paul Shieh SC, appearing for the Defendant at the hearing of the appeal (but not below), argued that based on his client’s version of events, it is arguable that there was no intention to create any legal obligation on the part of the Defendant to buy the shares; alternatively, the Defendant, to the knowledge of the Plaintiff, did not have any intention to be legally bound under the signed document(s).  In any event, Mr Shieh argued that there are doubts or suspicions about the Plaintiffs’ case and therefore unconditional leave to defend should have been given.

16.  It is accepted that so far as the competing versions of fact are concerned, the threshold test is whether the Defendant’s version is believable – as opposed to whether it should be believed (which should be a matter for trial), or is “practical moonshine”.  As the judge hearing the appeal (like Master Levy hearing the application at first instance), I must resist the temptation to try the case on paper.

17.  In fact, Mr Swaine, appearing for the Plaintiffs at the hearing of the appeal (but not below), expressly disavowed any intention of inviting the Court to embark on any minute and protracted examination of the affirmation evidence. His point on the facts was a very short and simple one, i.e. the Defendant’s version is simply unbelievable. 

18.  I agree.  Whether a version is believable or not must be decided against the known background and circumstances – the undisputed or indisputable facts and background of a case.  Adopting that yardstick, I have come to the firm conclusion that the Defendant’s case is simply unbelievable.

19.  It is common ground that the Defendant is an experienced businessman, responsible for running the two limited companies in question, which carry on a well-known business in the manufacture and sale of cakes, although according to the evidence, the companies have run into financial and cash-flow problems lately. 

20.  The wording of the Chinese agreement is as short and simple as it is clear.  It clearly describes the Defendant personally as both “Shareholder One” (the Plaintiffs are “Shareholder Two”) as well as the purchaser of the shares to be sold by Shareholder Two (the Plaintiffs).  It makes no reference whatsoever to the Defendant merely acting as somebody who has agreed to procure a willing buyer, if any, to take up the shares.  Clauses 4 to 8 in the Chinese agreement are quite common clauses to be found in this type of agreements for sale and purchase of shares between shareholders.

21.  Whether one looks at the version relied on by the Plaintiff (page 74) or the so-called “fax version” produced by the Defendant (page 164) said to have been faxed by Mr Ng to the Defendant’s daughter on 16 October 2003, the Chinese agreement says the same thing regarding the Defendant’s buying of the subject shares from his fellow shareholders.

22.  The Defendant claims that before he signed the Chinese agreement on 1 October 2003, he already noticed that the description of his being the purchaser in the agreement was wrong; yet instead of refusing to sign the agreement until the mistake was corrected, or correcting the mistake there and then either by himself or by Madam Siu, he chose to simply sign the agreement which contained such an important and material mistake, and which on the face of it committed him to buying shares at a price of $20 million – a price that he says in evidence he could not afford.  All this is said to have taken place against the undisputed background that in clause 5 of the same document, an amendment to the effect that both sides agreed not to disclose the transaction to any outsiders was handwritten by Madam Siu on the agreement and the amendment was initialled by the Defendant himself, when the Defendant signed the document on 1 October.  Judging from the so-called reconstructed version (page 166), the amendment that need be made to clause 1 regarding the description of purchaser was a simple one, and there was no conceivable reason why the amendment could not have been made there and then on 1 October 2003 when Madam Siu asked the Defendant to sign the document and when the Defendant noticed the very serious mis-description of his capacity.

23.  Mr Shieh, in an attempt to find something in the contemporaneous documents to support his client’s case, referred this Court to the signature of the Defendant which was written next to clause 1 in the Chinese document (page 74).  According to the Defendant, he wrote this signature against clause 1 in anticipation of the promised amendment of the description of the purchaser in clause 1 by Madam Siu after he had signed the agreement. 

24.  I find this explanation incredible.  It is the Defendant’s case that the description of his being the purchaser in clause 1 was totally wrong, and it required an amendment.  Yet not only did the Defendant fail to insist on an amendment being made before he signed the document, he actually chose to write his full signature against (the unamended and thus incorrect) clause 1, so as to, so he now claims, signify his agreement to the anticipated amendment to be made to clause 1.  I find all this not only remarkable but also totally unbelievable.

25.  Furthermore, a more fundamental question in relation to the Defendant’s whole explanation is this:  if the intention of the Defendant was merely to procure a buyer of the shares – if a willing one could be located, and not to buy the shares personally, why did he bother to sign the Chinese document at all?  What was the purpose of signing the agreement?  Was it done to tie the Plaintiffs down on the terms of sale in the event that a willing purchaser was found? – yet no such suggestion was made by the Defendant in his affirmation evidence.  I put all this to Mr Shieh during his submission, who frankly accepted that his client never directly explained this in his many affirmations that had been filed for the purpose of the present proceedings.  Mr Shieh was forced to say that people did sign documents for a variety of reasons.

26.  As regards the additional clause added to the end of the Chinese agreement, which was countersigned by the Defendant who wrote his full signature beneath the handwritten clause, again the wording of the additional clause is wholly inconsistent with the Defendant’s story.  The clause specifically referred to the payment by the Defendant himself of a deposit of $5 million 15 days after the signing of the agreement.  Again the Defendant claims that he noticed the mistake when Madam Siu asked him to countersign the additional clause.  Again he claims that he asked Madam Siu to amend the clause, who once again allegedly promised him that she would do so after he had countersigned it.  Again he claims that he believed her, and that was why once again he wrote his full signature underneath a clause which was materially wrong and damaging against his interest (as per his story).  All this was (allegedly) done notwithstanding that according to the Defendant himself, on that occasion when he countersigned the additional clause, he had already noticed that in breach of her alleged undertaking to amend the description of the purchaser in clause 1 given a few days ago, Madam Siu had not yet made any amendment to clause 1 of the agreement, in which she had added yet another totally incorrect clause to the utter detriment of the Defendant.

27.  Mr Shieh said that there is nothing wrong for a person to repose trust and confidence in another, and to sign documents on the basis of promises made by another that (incorrect) terms in the documents would be amended.  Put in such a general manner, I do not see any reason to disagree with Mr Shieh.  But the more important and relevant question in the present case is whether the Defendant’s assertion that something of that sort had happened in the present case is credible or not. 

28.  Again I find that it is not a question of whether the Defendant should be believed at trial, if there should be a trial.  I find the Defendant’s explanation wholly unbelievable.

29.  Again (with respect) in his desperate (although most skilful) attempt to rescue the Defendant’s case and come up with something believable and thus arguable, Mr Shieh referred me to the so-called fax version of the agreement (page 164) and pointed out that under this version, the amendment to clause 9 (changing the completion date from 14 days to 30 days after the signing of the agreement) had been made without the accompanying additional handwritten clause at the bottom of the Chinese agreement (about the payment of deposit).  The fax version of the agreement contained the Defendant’s signature.  Mr Shieh tried to argue that this showed that at the time when the Chinese document was signed on 1 October by the Defendant, there was already an agreement to change the completion date to 30 days, thus the Plaintiffs’ case that the changing of the completion date to 30 days after the signing of the agreement was linked to the payment of a deposit of $5 million is incorrect.

30.  First, I do not see how such a minor or peripheral point can rescue the Defendant’s case which in my view, as per the above analysis, is really hopeless.  Secondly, there is nothing to suggest that the amendment from 14 days to 30 days in clause 9 under the fax version was done at the same time when the Defendant signed the fax version.  The existence of the fax version containing the amendments that it contained (but without the further amendments that it did not contain) is not, in the final analysis of the evidence and the parties’ respective cases, inconsistent with the Plaintiffs’ case.

31.  In any event, one must not be distracted by this minor detail from the main question that this Court has to decide, namely whether the Defendant’s story on the circumstances under which his signatures and initials were written on the Chinese document in question is believable or not.

32.  Both sides referred the Court to a so-called letter of intent dated 6 October 2003 signed by the witness (Mr Ng) and the Defendant (page 97).  Under the document, Mr Ng agreed to act as the Defendant’s consultant in the Defendant’s acquisition of the shares of the Plaintiffs in the two companies in question, in return for a commission of 1% of the purchase price.  It was signed by the Defendant.

33.  Quite plainly, the content of the document is utterly inconsistent with the Defendant’s case that his role was merely to find a willing buyer of the Plaintiffs’ shares.  The document clearly says that the Defendant was retaining Mr Ng as his consultant to acquire the shares from the Plaintiffs.

34.  Mr Shieh tried to mount an argument on the basis of the handwritten words at the bottom of the document to the effect that the validity period of the consultancy agreement between the two gentlemen was between 6 October 2003 (when the document was signed by the Defendant) and 15 December the same year, and that the 1% commission would be payable even if the shares should be purchased by someone introduced by the Defendant or the Defendant’s agent.  Mr Shieh argued that that supported the Defendant’s case that he was intending to find somebody to buy the shares, and was not personally buying the shares.  Moreover the period of validity showed that at the time when the document was signed (6 October 2003), no deal had been reached, and (so counsel argued) if no deal could be finished by 15 December 2003, the consultancy agreement would lapse.

35.  I do not agree that the bottom few lines of the document assists the Defendant’s case sufficiently or at all.  The additional words to the effect that commission would still be payable even if the shares were to be purchased by somebody introduced by the Defendant or by the Defendant’s agent simply extended the circumstances under which commission would be payable.  It did not mean that the Defendant was not buying the shares.  In fact, the body of the document clearly said that the Defendant was buying the shares.  The additional words simply meant that if the Defendant should, for whatever reasons, get someone else to take up the shares, or should use an agent to acquire the shares, commission would still be payable.  This would be perfectly consistent with a case of sub-sale by the Defendant and the case of the Defendant using a nominee or agent to take up the shares respectively.  Nor was all this, including the validity period, inconsistent with the Plaintiffs’ case, bearing in mind that the sale and purchase of shares involved the initial stage of reaching an agreement for the sale and purchase, and the completion stage which was to take place later and under which the sale and purchase would be effected.  The validity period simply meant that if the sale and purchase could not be completed within the validity period, no commission would be payable.  It must be remembered that at the time when the document was signed (6 October 2003), although the agreement for sale and purchase of the shares had already been signed a few days ago (1 October 2003), completion had yet to take place.

36.  I fail to see how all this is inconsistent with the Plaintiffs’ case, or would provide support to the Defendant’s case, which as I have sought to explain, is quite unbelievable.

37.  Moving on to deal with the alleged events on 7/8 October 2003, the Defendant’s point here is that whatever had been agreed in the past was “superseded” by the so-called “fresh agreement” agreed and signed by the parties during that meeting.  Unfortunately (for the Defendant), the Defendant does not have a copy of the signed fresh agreement.  All he can rely on is a so-called reconstructed agreement (page 166).  One needs only to read the last clause (as amended) at the foot of the so-called reconstructed agreement, and compare it with the original (unamended) handwritten clause at the bottom of the Chinese agreement dated 1 October 2003 (page 74) which was countersigned by the Defendant, to see how different in content the two clauses were, and how unbelievable the Defendant’s story is – he said that he noticed that the handwritten clause was incorrect, yet nonetheless he agreed to countersign it on the oral undertaking by Madam Siu that she would amend it appropriately later.

38.  I would not repeat myself here about why all this is quite incredible.

39.  A certain Mr Chan, allegedly a witness during the meeting, has made an affirmation in support of the assertions of the Defendant regarding what has been said in the late night meeting.  It is remarkable that Mr Chan’s recollection of what has been said by the parties was precisely the same as that of the Defendant’s.

40.  But perhaps more importantly – bearing always in mind that my task here is to see whether the Defendant’s story is believable as opposed to whether it should be believed, I find the Defendant’s story about Madam Siu going to a 7-Eleven store in the small hours of the 8^th to make a photocopy of the amended agreement and then without any explanation not returning until several hours later and not bringing back either the original or any copy of the amended document totally remarkable.  Worse still (for the Defendant), it must be remembered that the story about the meeting on the 7/8 October was not intended to be an independent story.  The so-called fresh agreement in fact did not contain anything particularly new.  If one looks at the so-called reconstructed agreement, one will see that the amendments contained in the document merely reflected what the Defendant claims to have been promised by Madam Siu before when he repeatedly put his signatures on documents produced by Madam Siu for him to sign.  In other words, the whole story of the so-called fresh agreement is tainted quite fatally by the flaws in the Defendant’s story regarding what had happened before.

41.  Regarding the Chinese document that Madam Siu allegedly used to write down her amendments during the late night meeting, which eventually became the so-called fresh agreement, the Defendant never says clearly in his affirmations (particularly see page 149 paragraph 7.3) whether it was the first Chinese document that he signed on 1 October 2003, the second Chinese document that he signed one or two days later, or the Chinese document containing the additional handwritten clause at the foot several days afterwards.  Judging from what the Defendant said in paragraph 7.3 (page 149), the Chinese document that Madam Siu used to make the amendments must have contained the signatures or initials of the Defendant, because the Defendant said in paragraph 7.3 that he noted that the amendments he previously requested Madam Siu to make “at the places [he] had signed” had not been made.

42.  This being the case, there is again a fatal flaw in the Defendant’s story:  according to his story, the Defendant signed a Chinese document on 1 October; one or two days later, he signed another Chinese document, because Madam Siu told him that the earlier document had been mislaid; then a few days later, Madam Siu asked the Defendant to countersign an additional handwritten clause in the Chinese document that he had already signed before – this document could either be the document signed on 1 October or the document signed a day or two later.  Then came the late night meeting on 7/8 October, in which, as analysed above, Madam Siu was said to have used a Chinese document containing both the 1^st Plaintiff’s signature as well as the signatures and initials of the Defendant to do the amendments – which eventually became the fresh agreement.  Now in evidence there has been exhibited a copy of the Chinese document containing both the 1^st Plaintiff’s and the Defendant’s respective signatures as well as the additional handwritten clause at the bottom countersigned by the 1^st Defendant (page 74).  That document does not contain any further amendments which are said to have been made by Madam Siu during the late night meeting.  In evidence is also another copy Chinese document (the fax version) containing only the Defendant’s signature (page 164), which does not contain the alleged handwritten amendments made by Madam Siu in the late night meeting.  The authenticity of these two documents is not in issue, although only a copy of the same have been exhibited by the parties respectively.

43.  This being the case, what was the Chinese document that (already) contained both the signature of the 1^st Plaintiff and the signatures and initials of the Defendant, which was used by Madam Siu to make the amendments and which eventually became the so-called fresh agreement?  When was it signed or initialled by the Defendant?

44.  During the hearing, I therefore asked Mr Shieh whether his client was referring to one of the two agreements said to have been signed by him on 1 October 2003 and a day or two later in paragraph 7.3 on page 149 of the hearing bundle, or he was referring to yet another document.  Mr Shieh was unable to give me a definite answer.  No adjournment was applied for to put in further evidence to clarify the point.  As I said, on a fair reading of the whole of the 2^nd affirmation of the Defendant and in particular paragraph 7.3 thereof (page 149), the Defendant was referring to a Chinese document which was signed by the 1^st Plaintiff and contained his own signatures or initials – according to his own case, he could either be referring to the Chinese document that he admitted as having been signed by him on 1 October or the Chinese document that he was asked to sign by Madam Siu a day or two later – on one of which the additional clause at the bottom was subsequently handwritten by Madam Siu and countersigned by the Defendant.  Yet none of these two documents (a copy of which have been exhibited) contain the alleged amendments made by Madam Siu on 7/8 October.

45.  If my analysis above is correct (and I think it is), it is totally fatal to the Defendant’s story of the late night meeting and the fresh agreement.  But even if my above analysis were wrong, and somehow under the Defendant’s story there was yet another Chinese document that had been signed by the parties, which was used by Madam Siu to make the amendments, I still find on the totality of the Defendant’s story that his story is incredible.

46.  In fact, if one looks at the so-called reconstructed agreement more carefully and considers how clauses 5 to 8 were supposed to work if the purchaser was not Shareholder One, i.e. the Defendant, but a third party/outsider, one can immediately see how unreal the Defendant’s story is.  In his reply submission, Mr Shieh was forced to argue that in the reconstructed agreement, and in particular clause 1 of the same (as reconstructed), the Defendant wears two hats – both as the representative of the purchaser and in his own right as Shareholder One, so that it is the purchaser (represented by him) who shall be buying the shares, and it is the Defendant himself personally as a majority shareholder in the two companies who shall be performing the obligations under clauses 5 to 8 of the agreement.  I am not impressed by the argument or suggested construction.  Plainly, with respect, words were being stretched to, and indeed beyond, their legitimate limits in order to come up with something believable.

47.  Mr Shieh, in his submission, was driven to refer the Court to some mobile telephone records to show that in the small hours of 8 October 2003, the Defendant did make two phone calls to Madam Siu.  In my judgment that proves nothing of importance (in the O. 86 sense).

48.  I have not forgotten the transcript of the telephone conversation between the Defendant and Mr Ng.  I do not consider that Mr Ng has really said anything in the telephone conversation that unequivocally supports the Defendant’s case.  To be sure, there were some references to getting a copy of something from Madam Siu and Madam Siu going to the 7-Eleven store.  But having considered the entire evidence that has been placed before the Court, I do not find the transcript of any or any sufficient assistance to the Defendant in turning his case into a believable one.

49.  Mr Shieh said that the Plaintiffs’ side never referred to there having been more than one signed Chinese document, and the fax copy (page 164) showed that there had been more than one Chinese agreement signed.  I do not think this takes the Defendant’s case anywhere.  The Plaintiffs’ case is not inconsistent with there having been signed more than one copy of the Chinese agreement.  Rather the more important thing is that no matter under the Plaintiffs’ version or the so-called fax version, the Defendant had signed as the purchaser of the shares.

50.  I have not forgotten the affirmations made by deponents other than the Defendant, in support of the Defendant’s opposition to the application for summary judgment.  They sought to support what the Defendant alleged in his affirmations.  I cannot accept what they asserted in the light of the undisputed or indisputable circumstances and facts of the present case.  As I said, the crucial question is whether the Defendant’s story is believable in the circumstances.

51.  I do not agree that the Plaintiffs’ case is suspicious or doubtful.  I do not find any or any sufficient and good reason to refuse the Plaintiffs’ summary application for a decree of specific performance.

52.  There were other minor points raised by counsel on both sides.  Given my analysis above, although the points have been taken into account, I do not think they make any difference.  More importantly, as I said, having borne in mind all the points raised by counsel, I am of the firm view that the Defendant’s story is unbelievable.

53.  I hope I have not given the impression that I have tried the case on paper – I have not.  But in order to explain why I have found the Defendant’s story unbelievable, quite inevitably I have to analyse the story and deal with counsel’s various points in some detail.

54.  With respect, the learned Master below has reached the only possible and correct conclusion, and this appeal must be dismissed.  I order accordingly.  I also make a costs order nisi that the costs of this appeal be paid by the Defendant to the Plaintiffs; such costs are to be taxed if not agreed. 

55.  I thank counsel for their assistance.