ANTWERP DIAMOND BANK N.V. v. BRINK'S, INCORPORATED AND OTHERS

HCCL 14/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMMERCIAL ACTION NO. 14 OF 2010

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JUDGMENT

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1. This is a claim for conversion of goods.

BACKGROUND

2. The plaintiff carries on the banking business in India.

3. Rupam Impex was a diamond supplier based in India.  It obtained banking facilities from a number of Indian banks including the plaintiff to finance its trade.

4. In order to obtain the banking facilities, Rupam Impex signed the following 2 agreements (“the 2 Agreements”) with a number of Indian banks including the plaintiff:

(i)   the Working Capital Consortium Agreement dated 23 October 2006; and

(ii)    the Joint Deed of Hypothecation also of the same date (“the Deed of Hypothecation”).

5. For the shipments which are the subject matters of the present claim, only the plaintiff provided the credit facilities to Rupam Impex.

6. The effects of the 2 Agreements are that:

(i)   the plaintiff would provide banking facilities to Rupam Impex to acquire diamonds or raw materials for the production of diamonds which would subsequently be resold to other buyers; and

(ii)    in return, the facilities would be secured by, inter alia, a pledge of Rupam Impex’s diamonds in favour of the plaintiff.

7. Insofar as this action is concerned, with the consent of the plaintiff, Rupam Impex sold 3 batches of diamonds (“the Diamonds”) to one Mr Piyush Bhagchand Kala trading as “Beauty-Diam” (“Beauty-Diam”) who was a diamond trader in the Indian community in Hong Kong.

8. Rupam Impex engaged N Jamnadas & Co (“Jamnadas”), a freight forwarder in India, to arrange the carriage of the Diamonds by air to Hong Kong.  Jamnadas issued 3 respective House Air Waybills for the carriage of the Diamonds from India to Hong Kong (“the Air Waybills”).  The actual carrier was an entity known as “Brink’s” or “Brink’s Global Services”.  Rupam Impex handed the Air Waybills over to the plaintiff.

9. According to the terms of each of the Air Waybills:

(i) Rupam Impex was the shipper for the Diamonds;

(ii) Bank of East Asia (“BEA”), which was the plaintiff’s “receiving bank and agent” in Hong Kong, was the consignee of the Diamonds; and

(iii) Beauty-Diam was one of the notifying parties (the other being the consignee).

10. After the arrival of the Diamonds in Hong Kong, the 3^rd defendant released the same to Beauty-Diam without the consent of the plaintiff.  The plaintiff therefore commenced the present action against the 3^rd defendant for conversion of the Diamonds.

11. The defendants are the members of “the Brink’s Group”.  The 1^st defendant is a company incorporated in the United Sates, and carries on the business of an international carrier providing secure transportation and logistics services around the world via its subsidiaries. The 2^nd defendant is a limited company incorporated in Hong Kong acting as the regional headquarters of the 1^st defendant in Asia Pacific.  The 3^rd defendant is a limited company incorporated in Hong Kong wholly-owned by the 1^st defendant, and carries on the business of providing domestic and international transportation and logistics services as part of the service network of the 1^st defendant.  The plaintiff has earlier abandoned the claims against the 1^st and 2^nd defendants.

12. There is no serious dispute between the parties about the quantum of the claim in the sum of US$852,339 which is the total value of the Diamonds stated in the 3 Air Waybills.

THE PLEADINGS AND THE ISSUES

13. According to the Statement of Claim, by reason of the terms of the 2 Agreements, the plaintiff had retained a security interest or ownership or immediate right to possession to the Diamonds (see: §10). On the other hand, the 3^rd defendant was acting as a bailee of the Diamonds and was therefore under a tortuous duty not to release the same to anyone other than the lawful owner, the consignee or a party designated, authorised or nominated by the consignee to take possession of them (see: §14). As the 3^rd defendant did not deliver the Diamonds to BEA or any designated party of BEA, the plaintiff claims that the 3^rd defendant had committed the tort of conversion and had breached its duty as bailee of the Diamonds (see: §§15 & 18).  There is no mention of the Warsaw Convention or any other international conventions relating to carriage by air in the Statement of Claim or the Reply.

14. According to the plaintiff’s case, the original Air Waybills were in its possession at the material time.  Under the normal arrangement, the plaintiff’s receiving bank in Hong Kong, BEA, would have asked the buyer, Beauty-Diam, to issue a bill of exchange in favour of the plaintiff or BEA for the price of the Diamonds.  After Beauty-Diam had done so, the plaintiff would have handed over the original Air Waybills to Beauty-Diam to obtain delivery of the Diamonds.  As Beauty-Diam had already obtained the Diamonds from the 3^rd defendant without the original Air Waybills, Beauty-Diam refused to issue a bill of exchange in favour of the plaintiff, and as a result the latter brought the present proceedings against the 3^rd defendant for conversion of the Diamonds.

15. The 3^rd defendant disputes the plaintiff’s claim on the following grounds:

(i) the plaintiff has no right to sue for the alleged conversion of the Diamonds;

(ii) the 3^rd defendant was only acting as an agent for Jamnadas for the carriage of the Diamonds; and

(iii) the 3^rd defendant is entitled to the benefit and protection of the terms in the Air Waybills, and so the plaintiff’s claim under the Air Waybills has been waived and extinguished.

16. On the first day of the trial, the 3^rd defendant sought to amend the pleading by introducing a new defence which is, under the trade custom in respect of the carriage of diamonds from India to the Indian diamond trading community in Hong Kong, the carriers are expected to deliver the diamonds directly to the notifying party without the prior consent of the consignee.  Although the defendant’s witnesses have mentioned such practice briefly in their witness statements, this is not an issue in the case unless and until it is expressly pleaded in the Defence.  If the court were to allow such late application for amendment of the pleading, the trial would have to be adjourned to enable the plaintiff to file further witness statement or expert report to deal with such allegation.  As the trial date is a milestone date which should not be lightly disturbed unless there are exceptional circumstances, which there is none in the present case, I refused the 3^rd defendant’s late application to introduce such new defence.

17. At the trial, it is clear that the main battlefield between the parties is about the plaintiff’s right to sue for the alleged conversion of the Diamonds.  The plaintiff claims that it has the right to sue under: (i) the common law; and (ii) Art 13 of the Warsaw Convention or the Amended Warsaw Convention.  I will deal with these arguments in turn.

THE PLAINTIFF’S RIGHT TO SUE

(i)    The common law right to sue

18. The Diamonds were acquired by Rupam Impex which were subsequently resold to Beauty-Diam.  Naturally, they were the owners of the Diamonds and not the plaintiff.  However, clause 2 of the Deed of Hypothecation required Rupam Impex (as borrower) to hypothecate the Diamonds to the plaintiff (as the creditor bank) as security for the credit facilities granted by the plaintiff.  After the Diamonds were entrusted to “Brink’s” for shipment to Hong Kong, Rupam Impex handed over the original Air Waybills to the plaintiff.  By so doing, Mr Chong, counsel for the plaintiff, submits that it amounted to a pledge of the Diamonds as the plaintiff had obtained constructive delivery of the Diamonds by way of the Air Waybills.  As such, Mr Chong argues that the plaintiff had the immediate right of possession to the Diamonds which entitles it to sue for the alleged conversion of the Diamonds.

19. The merits of such argument would depend on the nature of a contract of hypothecation and the distinction between a pledge and a hypothecation.  Hypothecation is not a familiar concept in Hong Kong, but apparently it is commonly used in India as a form of security for credit facilities granted by creditor banks to merchants.

20. In Stroud’s Judicial Dictionary of Words and Phrases, 7 ed, vol 3, the learned author has clearly stated that a contract of pledge is different from a contract of hypothecation.  In a pledge, there is a transfer of possession or delivery of the charged item to the creditor.  In Bank of India v Yogeshwar Kant Wadhera AIR 1987 P H 176, the Punjab-Haryana High Court held that there is a clear distinction between a hypothecation and a pledge.  In explaining the nature of a hypothecation, the court cited the following passage of the decision of the Madras High Court in Union of India v Ct. Shentilanathan (1978) 48 Com Cas 640:

“Hypothecation of goods is a concept which is not expressly provided for in the law of contracts, but is accepted in the law merchant by long usage and practice. Hypothecation is not a pledge and there is no transfer of interest or property in the goods by the hypothecator to the hypothecatee. It only creates a notional and an equitable charge in favour of the hypothecate and the right of the hypothecate, as already stated, is only to sue on the debt and proceed in execution against the hypothecated goods, if they are available. As delivery of possession is not a sine qua non for the creation of a notional charge under a deed of hypothecation and as possession of the hypothecated goods is always with the hypothecator, a wide door is open to the owner to deal with the goods without reference to the hypothecatee. … … … In the absence of such a constructive notice or express notice to the public at large, the right of the hypothecatee is that of a bare private money creditor with the ancillary right to proceed against the goods hypothecated after obtaining a decree in a Court of law. Thus, a hypothecation is a right in a creditor over a thing belonging to another and which consists in the power in him to cause the goods to be sold in order that his debt might be paid to him from the sale proceeds. This right is distinguishable from a mortgage of chattels.”

21. In Bank of India v Yogeshwar Kant Wadhera, supra, the Punjab-Haryana High Court gave further explanation about the right of the hypothecatee (at §8):

“As in hypothecation, the possession of the goods hypothecated is with the borrower, it will be wrong to say that the goods are in the constructive possession of the creditor Bank because it has no effective control over them. By hypothecation, only an equitable charge is created and nothing more. Similarly, the borrower could not be called an ‘agent’ of the creditor Bank in this respect while dealing with the hypothecated goods unless so authorised by the bank.”

22. According to these authorities, it is clear that the plaintiff, being a mere hypothecatee, enjoys nothing more than an equitable interest in the Diamonds without any immediate right to possession to the same.

23. To establish its locus to sue, the plaintiff must be able to establish that it was not just a hypothecatee but a pledgee of the Diamonds.  In a pledge, there must be a transfer of possession or delivery of the charged item to the creditor.  In The “Future Express” [1992] 2 Lloyd’s LR 79, Judge Diamond QC said the following about a pledge of a charged item to a creditor bank:

“At common law a pledge cannot be created without delivery or constructive delivery of the thing pledged and delivery is necessary to give the bank the possessory right without which it cannot sustain an action for conversion … … … the bank never in fact became a pledgee or acquired any security right over the goods.”

24. According to Mr Chong, the fact that Rupam Impex handed over the Air Waybills to the plaintiff amounted to a constructive delivery of the Diamonds to the plaintiff and as such, the plaintiff became a pledgee who had acquired immediate right of possession to the Diamonds.

25. The difficulty with such argument is that, unlike bills of lading, air waybills do not constitute documents of titles and so the dealing of such documents may not amount to constructive delivery of the goods concerned.

26. In Carriage by Air (2001), the learned author said the following about the different natures of a bill of lading and an air waybill (at p 81):

“6.27 Rule 16 - As a matter of English law, air waybills are not negotiable, in the absence of a clear and well-defined custom to the contrary. However, the better view is that they are to be regarded as ‘documents of title’ within the meaning of the Sales of Goods Act 1979.

6.28 In this context, negotiability means the ability to transfer constructive possession of the cargo by transferring the air waybill by well-established custom over centuries subsequently embodied in legislation. Bills of Lading possess this characteristic, which enables the owner of goods to deal with them and pass title to others during what may be lengthy marine voyages. Indorsement of a Bill of Lading and its delivery to the person named on it as indorsee passes to that person the right to possession of goods, and title to them, if that is the parties’ intention. No such custom appears to exist in the case of air waybills, and certainly none has been established in any case before the Courts. In the absence of an established, clear and well-defined custom treating air waybills as negotiable, in the sense discussed above, it is clear that under English law air waybills are not negotiable.

6.29   The provisions of art 15(3) in Warsaw Hague Amendment do not alter this position. … … …”

27. From such authority, it is clear that air waybills are not documents of title.  However, it is always open to parties in litigations to adduce evidence to prove “an established, clear and well-defined custom” treating air waybills as documents of title and negotiable.  If the court were to accept such evidence, there may be constructive delivery of the goods by passing the air waybills from one party to another.

28. That was in fact what happened in the case of Re Far East Structural Steelwork Engineering Ltd [2010] 1 HKLRD 156, in which the Court of Appeal accepted the evidence adduced by a party that the method of creating security by the trust receipts and cargo receipts for an advance in respect of a local letter of credit was widespread in the Hong Kong community.  Although the 3 Justices of Appeals had reached different conclusions as to whether a valid pledge was created in that case by constructive delivery of the trust receipts and cargo receipts, that decision is the authority for the proposition that air waybill can be regarded as document of title if there is a custom to that effect.

29. The plaintiff has adduced no such evidence in the present case.  In the absence of “an established, clear and well-defined custom” treating the Air Waybills as documents of title, I do not accept that the Rupam Impex had created a valid pledge of the Diamonds by handing over the original Air Waybills to the plaintiff.

30. Mr Chong further argues that both the plaintiff and Rupam Impex had intended the hypothecation to be a charge, otherwise there was no need to put down the receiving bank, BEA, as the consignee in the Air Waybills.  The whole idea was, therefore, to provide extra security to the plaintiff.  In other words, Mr Chong seems to suggest that, since the name of a bank was put down in the Air Waybills as the consignee, the 3^rd defendant should have known that the relevant parties had regarded the Air Waybills as documents of title, and in such circumstances, the handing over of the Air Waybills by Rupam Impex to the plaintiff should be regarded as a constructive delivery of the Diamonds which, in turn, constituted a pledge.

31. In support of such argument, Mr Chong refers me to the Privy Council’s decision of Kum & Anr v Wah Tat Bank Ltd & Anr [1971] 1 Lloyd’s LR 439 in his supplemental closing submission.  It was also a case concerning a claim for misdelivery of the goods by the carrier. The goods were carried by sea from Sarawak to Singapore and the goods were released by the carrier in Singapore without the production of the mate’s receipts.  The issue before the Privy Council was whether the delivery of the mate’s receipts, which were not normally documents of title, by the sellers to the creditor banks did amount to a constructive delivery of the goods thereby constituting a pledge.  The Privy Council ruled in favour of the creditor banks.  Mr Chong submits that the facts are identical with those in the present case and so this court should likewise reach the same conclusion.

32. But in my judgment, this authority exactly reveals the weakness of the plaintiff’s case.  In Kum, the Privy Council was relying on the factual evidence to find that there was a custom treating the mate’s receipts as documents of title.  In fact, the evidence was that the great preponderance of the traffic between Sarawak and Singapore was being carried on with mate’s receipt alone without a bill of lading.  By such evidence, the Privy Council accepted that the document of title was created by custom.

33. In the judgment, Lord Devlin said the following about the nature of such custom (at p 444):

“In speaking of a custom of merchants the law has not in mind merchants in the narrow sense of buyers and sellers of goods. A mercantile custom affects transactions either in a particular trade or in a particular place, such as a market or a port, and binds all those who participate in such transactions, whatever the nature of their callings. … … … But the limits of the custom, if it be established, are not to be defined by reference to categories of traders or professional men; if established, it binds everyone who does business in whatever capacity. To describe a custom as belonging to particular callings diverts attention from its true character which consists in its attachment to a trade or place.

Universality, as a requirement of custom, raises not a question of law but a question of fact.  There must be proof in the first place that the custom is generally accepted by those who habitually do business in the trade or market concerned. Moreover, the custom must be so generally known that an outsider who makes reasonable enquires could not fail to be made aware of it.  The size of the market and the extent of the trade affected is neither here nor there. … … …”

34. The witnesses in that case did give evidence about the relevant custom, and so the Privy Council accepted that the mate’s receipt was treated by custom as document of title.

35. Is there evidence about such custom in the present case?  The answer is clearly no.  Firstly, the plaintiff has not pleaded the existence of such custom in the Statement of Claim, and so the plaintiff should not be allowed to adduce evidence to prove the existence of such custom at the trial.  Secondly, Mr Sharma of the plaintiff only gives evidence as to his own understanding about the effect of the handing over of the Air Waybills from Rupam Impex to the plaintiff.  His evidence does not touch on the custom which has an element of universality and binds everyone who does business in the trade in whatever capacity.

36. On the other hand, the evidence of the 3^rd defendant’s witnesses tends to support that there was no such custom treating the Air Waybills as documents of title, at least in the diamond trade in the Indian community in Hong Kong.  According to these witnesses, the usual trade custom was for the 3^rd defendant to deliver the diamonds directly to the intended recipients without the production of the original air waybills.  Although I have refused the 3^rd defendant’s late application for amendment of pleading to include such allegation as a positive defence, such evidence negates the existence of a custom of treating the Air Waybills as documents of title.  In any event, it remains the burden on the part of the plaintiff to adduce positive evidence to satisfy all the threshold requirements for the establishment of a custom treating the Air Waybills as documents of title.  As the plaintiff has failed to discharge such burden, the court would not treat the Air Waybills as documents of title, and the delivery of such documents by Rupam Impex to the plaintiff did not therefore constitute a valid pledge which would, in turn, entitle the plaintiff to have immediate right of possession to the Diamonds.  In other words, the plaintiff is only a mere hypothecatee who enjoys nothing more than an equitable interest in the Diamonds.

37. In §3(b) of the Reply, it is averred that the plaintiff, as a matter of Indian law, has title to sue for the loss resulting from the misdelivery of the Diamonds by virtue of the fact that it had paid valuable consideration to the drawer of the bills of exchange, namely Rupam Impex, and had retained the Air Waybills.  However, since the plaintiff has not adduced any evidence on Indian law to substantiate the averment, such bare allegation cannot help the plaintiff to establish its locus to sue.

38. As the plaintiff was neither the owner nor had retained any immediate right to possession to the Diamonds, the plaintiff does not have any common law right to sue the 3^rd defendant for the alleged conversion of the Diamonds.

(ii)   The plaintiff’s right to sue under the international convention

39. Facing the difficulty in establishing the plaintiff’s locus to sue under the common law, Mr Chong, in his final submission, raises for the first time that the plaintiff, being the principal of the consignee, BEA, has the right to sue for the misdelivery of the Diamonds under Art 13 of the Warsaw Convention or the Amended Warsaw Convention.  I simply refer this as “the Art 13 Argument”.

40. Art 13 of the Warsaw Convention or the Amended Warsaw Convention reads as follows:

“(1) Except in the circumstances set out in the preceding Article, the consignee is entitled, on arrival of the cargo at the place of destination, to require the carrier to hand over to him the air waybill and to deliver the cargo to him, on payment of the charges due and on complying with the conditions of carriage set out in the air waybill.

(2) Unless it is otherwise agreed, it is the duty of the carrier to give notice to the consignee as soon as the cargo arrives.

(3)  If the carrier admits the loss of the cargo, or if the cargo has not arrived at the expiration of 7 days after the date on which it ought to have arrived, the consignee is entitled to put into force against the carrier the rights which flow from the contract of carriage.”

41. Art 13 gives the consignee the right to possession of the cargo upon its arrival at the place of destination.  Relying on the decision of the English Court of Appeal in Western Digital Corporation v British Airways Plc [1999] 2 Lloyd’s Rep 380, Mr Chong submits that, the plaintiff, being the principal of the consignee named in the Air Waybills, also has the right to sue for the misdelivery of the Diamonds under Art 13 of the Warsaw Convention or the Amended Warsaw Convention.

42. The problem with the Art 13 Argument is that the plaintiff has not pleaded the application of the Warsaw Convention or the Amended Warsaw Convention and the plaintiff’s right to sue under Art 13 in the Statement of Claim.  Since the parties have not addressed me on the pleading issue at the trial, I have invited the parties to make further written submissions which they did on 9 November 2012.

43. After considering the further submissions of the parties, I do not accept that the plaintiff can rely on the Art 13 Argument to establish its right to sue for the alleged conversion of the Diamonds.

44. Under ss 2A and 3 of the Carriage of Goods by Air Ordinance (Cap 500), the provisions of the Montreal Convention and the Amended Warsaw Convention shall have the force of law in relation to any carriage by air to which the relevant Convention applies.  Although the Conventions may have the force of law, it does not mean that reliance on the provisions in the Conventions need not be pleaded.  In fact, the precedents in the leading reference authorities show that the application of the relevant Convention and the reliance on the provisions therein are matters which should be expressly pleaded in the pleadings (see: Bullen & Leake & Jacobs on Precedents of Pleadings, 17 ed, at §5-C8, and Atkin’s Court Forms, 2 ed, 8(1) , 2010 Issue at p 458 [531]).

45. In my judgment, if it is a party’s case that a particular Convention is applicable to the carriage by air in issue and he seeks to rely on certain provisions in the Convention in establishing the claim, he must plead the same in the pleading.  In so doing, it would not take other party by surprise and both parties would then have the opportunity to focus on the various issues that may arise from the application of the relevant Convention.  For example, there are provisions in the Conventions limiting the liability of the carrier, and a defendant may seek to rely on these provisions to limit his liability.  Further, the provisions in the Conventions may cease to apply if the loss of the goods happened outside the aerodrome.  Without an express averment in the pleading about the applicability of the Conventions, the parties have not addressed their minds to these issues and are deprived of the opportunity to consider whether they should adduce any factual evidence to deal with these related issues.  In such circumstances, it is not right, and indeed not fair to the parties, for the court to assume that the Warsaw Convention, the Amended Warsaw Convention or indeed the Montreal Convention, is applicable in the present case without an averment to that effect in the pleadings.

46. Mr Chong submits that there would be no prejudice to the 3^rd defendant if the plaintiff were to be allowed to rely on the Art 13 Argument.  Firstly, Mr Sharma of the plaintiff has briefly mentioned the application of the Warsaw Convention in §17 of his witness statement.  Secondly, the 3^rd defendant has briefly dealt with the applicability of the Warsaw Convention in its opening submission.

47. I cannot accept these arguments.  Firstly, there has yet been an application for amendment of the pleading before the court.  In the absence of an express averment to rely on the Article 13 Argument, it would not be an issue in the present case.

48. Secondly, at this stage, I have no idea whether the Warsaw Convention, the Amended Warsaw Convention or indeed the Montreal Convention is applicable to the contract of carriage by air here.  Although it may be relatively easy to find out the answer by looking at the lists of the contracting states of the relevant Conventions, it would not be right for the court to find out the answer itself.

49. Thirdly, the 3^rd defendant, in its opening submission, takes the stance that the Warsaw Convention is not applicable because of the provisions in Arts 17, 18 and 19 of such Convention, and one of the arguments is that the alleged misdelivery of the Diamonds occurred outside the aerodrome.  At the trial, the parties have not dealt with such particular issue in the evidence.  As I see it, this is exactly the problem created by the absence of such averment in the Statement of Claim. From the outset, it is clear that the plaintiff’s right to sue is the main if not the only issue in the case.  In the Statement of Claim, the plaintiff is only relying on its right under the common law to claim for the misdelivery of the Diamonds.  In such case, the parties have not directed their attention to the application of the Warsaw Convention and its implications.  It is only when the plaintiff raises the Art 13 Argument in the final submission that the parties start to appreciate its implications.  By that time, the 3^rd defendant has lost the opportunity to adduce evidence to rebut the application of the Warsaw Convention.

50. Further, the 3^rd defendant is being sued apparently because it was the bailee of the Diamonds after they had arrived in Hong Kong and the Diamonds were in its physical possession before the alleged misdelivery.  However, the 3^rd defendant might not be the “carrier” for the purpose of the claim under the Conventions.  The actual carrier might be the 1^st defendant or its other subsidiary in India.  Again, since the plaintiff’s pleaded claim is based on the role of the 3^rd defendant after the Diamonds had arrived in Hong Kong, the issue about the identity of the true carrier has not been canvassed at the trial.  In such circumstances, it is very dangerous, and indeed not fair to the 3^rd defendant, to allow the plaintiff to run the Art 13 Argument at such a late stage of the proceedings, and one cannot simply say that no prejudice would be caused to the 3^rd defendant by such late argument.

CONCLUSION

51. Based on the aforesaid, in the absence of an express averment, the plaintiff cannot rely on the Article 13 Argument to establish its right to sue for the alleged misdelivery of the Diamonds.  Since the plaintiff has failed to establish its locus to sue, whether under the common law or under the international conventions, for conversion of the Diamonds, I dismiss the plaintiff’s claim against the 3^rd defendant. In such case, it is not necessary for me to deal with the other grounds of defence pleaded in the pleading.  In fact, the parties have hardly made any submissions on these other issues.

52. It seems that there is room for improvement in the preparation of the plaintiff’s case.  If the plaintiff has adduced evidence to support the trade custom treating the Air Waybills as documents of title, or if it has expressly pleaded the reliance on Art 13 of the Warsaw Convention or the Amended Warsaw Convention in the Statement of Claim, the result of the case may be different.  Despite such remarks, the court is duty bound to consider the plaintiff’s claim as pleaded and so I have no option but to dismiss its claim.  I make the order accordingly.

53. I also make an order nisi that the plaintiff do pay to the 3^rd defendant the costs of the action to be taxed if not agreed, which shall be made absolute 14 days after the date of the handing down of this Judgment.