ACESITE LTD AND OTHERS v. BANCO DE ORO-EPCI, INC AND ANOTHER

HCCL 5/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMMERCIAL ACTION NO. 5 OF 2006

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J U D G M E N T

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The application

1. There is before the court an application by the 1^st defendant, formally known as Equitable PCI Bank Inc, by summons dated 2 June 2006 to strike out the claim against it in these proceedings by the 2^nd and 4^th plaintiffs, that is, Evallon Investment Ltd and South Port Development Ltd.

2. The application is made under all the heads of Order 18, rule 19 RHC, and under the inherent jurisdiction of the court.

3. A cross-application is made by the plaintiffs, pursuant to a summons dated 22 December 2006, for leave to amend the Points of Claim, albeit the amendments then annexed in draft form to that summons no longer represent the amendments which now are sought to be made; in this connection a revised draft Amended Points of Claim is available for scrutiny.

The procedural background

4. This is not the first occasion on which this strike out application was before this court.

5. On 31 January 2007, some 15 months ago, by the present summons the 1^st defendant (‘the Bank’) moved to strike out the claim as then contained in the Points of Claim by the 2^nd plaintiff (‘Evallon’) and the 4^th plaintiff (‘South Port’).

6. By summons dated 22 December 2006, the plaintiffs also applied to amend the Points of Claim in accordance with the draft then annexed to the summons; whilst this application to amend also was before the court on 31 January 2007, this was not made in response to the antecedent strike out application, but was a ‘stand-alone’ application.

7. At the first hearing on 31 January 2007 no order was made, and the applications were adjourned. 

8. That which occurred was that after hearing some argument, the court accorded the plaintiffs the opportunity further to amend the then proposed Amended Points of Claim, on the basis that if and in so far as the Bank were to accept that such further amendments were curative of the defects complained of in the existing Points of Claim, then the strike out application would not continue; alternatively, if the contrary transpired, and the Bank maintained its objections, the matter could be relisted.

9. Following the initial hearing in January 2007, the amendments as originally mooted were replaced by a draft Amended Points of Claim which was served on 16 April 2007; however, this draft was replaced by another draft Amended Points of Claim back-dated to 16 April 2007, which was sent to the Bank in July 2007 – which version I take now to be the subject of the plaintiff’s original application to amend of 22 December 2006, which summons remains extant.

10. The situation, therefore, is that the applicant bank remains of the view that this latest draft does not cure the defects of which complaint originally was made – hence this relisted hearing.

11. In summary, therefore, the current position is thus: the 2^nd and 4^th plaintiffs now wish to amend in terms of the latest draft version of the Points of Claim; whilst the applicant bank, the 1^st defendant herein, opposes such amendment in terms, and maintains its application to strike out the claim as originally mounted against it by the 2^nd and 4^th plaintiffs.

The factual background

12. At bottom, this is a dispute about ownership of a hotel in the Philippines, or, more precisely, about ownership of the shares in this hotel, which is the ‘Manila Pavilion Hotel’ in Ermita, Manila.

13. There is some history.

14. On 24 October 1988 the Bank extended a US$5 million loan to a company known as Genius Reward Ltd; Genius Reward was related to Evallon, the 2^nd plaintiff, in that a company known as Sino-i.com Limited held 50% of Genius Reward and 100% of Evallon.

15. Evallon, the 2^nd plaintiff, in turn held 100% of the 1^st plaintiff, Acesite Ltd (‘Acesite’), which owned a majority shareholding in Acesite (Philippines) Hotel Corporation, a listed company in the Philippines which owns the ‘Manila Pavilion Hotel’.

16. The 3^rd plaintiff, Mr Yu Pun Hoi, is and was a director of Acesite and Evallon, and a major shareholder in Sino-i.com Ltd.

17. The loan to Genius Reward was restructured in 1993, and became secured by a share mortgage – ‘the Evallon share mortgage’ – which was executed by Evallon over its 100% shareholding in Acesite, and hence the ‘Acesite shares’.

18. At the same time a further share mortgage – ‘the Acesite share mortgage’ – was executed by Acesite over its majority shareholding in Acesite (Philippines) Hotel Corporation, the shares in which have been referred to as the ‘Philippines shares’.

19. The claims as now brought by Evallon and South Port against the Bank relate to the ‘Acesite shares’, which is the entire shareholding of 10 shares in Acesite, the 1^st plaintiff.

20. After pledging the Acesite shares to the Bank under the Evallon share mortgage, Evallon pleads that it sold the Acesite shares for a consideration of HK$257,661,000 to the 4^th plaintiff, South Port, pursuant to a written agreement dated 30 September 1999 [see draft POC, para 7] – the effect of which, I am told, is that South Port thereby became the indirect majority owner in, and acquired control of Acesite (Philippines) Hotel Corporation, and hence the ‘Manila Pavilion Hotel’.

21. In turn, South Port pleads that it became the lawful owner of the Acesite shares pursuant to this written agreement of 30 September 1999 [see draft POC, para 7].

22. For purposes of the present applications these latter two averments are the key averments.

23. Because Evallon avers that the Bank has acted in breach of the Evallon share mortgage by the Bank itself purportedly selling the Acesite shares to the 2^nd defendant, Waterfront Philippines Inc. (‘Waterfront’) [see draft POC, paras 51-53, 59(c) ff].

24. In addition, Evallon and South Port allege that this purported sale of the Acesite shares by the Bank to Waterfront – which now, I am told, is controlling the hotel to the exclusion of South Port – has resulted in a wrongful deprivation of their equity of redemption under the Evallon share mortgage [see POC, Particulars of Loss (1)].

25. South Port further alleges that as a result of the Bank’s breaches of contract/breaches of fiduciary duty/fraudulent conspiracy [see POC, Particulars of Loss (4)-(5)] that it has been deprived of the value of the Acesite shares, or alternatively the residual value of the Acesite shares after discharge of the Genius Reward loan.

26. Thus, both Evallon and Southport, the 2^nd and 4^th plaintiffs, seek against the 1^st defendant Bank a declaration that the sale by the Bank of the Acesite shares to Waterfront was unlawful, and rescission of that agreement for sale.

27. Additionally, South Port also is seeking an order that the Acesite shares be transferred back to South Port.

The argument

28. It is probably fair to say that Mr Coleman’s principal argument was mounted on the basis of there being no reasonable cause of action demonstrated on the proposed amended Points of Claim.

29. His case substantially was thus.

30. It is Evallon’s pleaded case that from late 1999 it was no longer the owner of the Acesite shares – this is because it had sold them to South Port under the share sale agreement of 30 September 1999, albeit Mr Coleman noted that the existence of the Evallon share mortgage is not disclosed within the relevant share sale agreement.

31. Nevertheless, he submitted, the pleaded averment is that the transfer of the Acesite shares from Evallon to South Port was valid and effective, and indeed, he said, the proposed amendments to the Points of Claim support the case that the transfer of the Acesite shares from Evallon to South Port was valid and effective.

32. Hence, he argued, taking the pleading at face value, having sold the Acesite shares to South Port, and having received valuable consideration therefor in the sum of HK$257,661,000, Evallon now cannot claim – as it purports so to do – that it has been deprived of any value in, or of its equity of redemption in respect of the Acesite shares under the Evallon share mortgage consequent upon the action by the Bank in selling the Acesite shares to Waterfront.

33. In fact, said Mr Coleman, on the basis of its own pleaded case Evallon can have no further interest in the Acesite shares, having sold them to South Port for valuable consideration, and thus there is no basis upon which it can mount any claim with regard to those shares.

34. Equally, counsel continued, from South Port’s viewpoint as the pleaded purchaser of these shares, for valuable consideration, from Evallon, South Port can have no legitimate claim against the Bank either.

35. This is because South Port is a strange to the Evallon share mortgage entered into between Evallon and the Bank, and thus the Bank cannot owe any duties, contractual or otherwise, to South Port in respect of the Evallon share mortgage – and indeed no such duties are pleaded.

36. Thus, Mr Coleman argued, it is not open to South Port to maintain any claim against his client, the Bank, in respect of any alleged sale by the Bank of the same parcel of shares, the Acesite shares, when on South Port’s own case the Bank neither possesses nor owns these shares because South Port itself has and owns these shares.

37. Indeed, he said, since it is South Port’s own pleading that the Acesite shares had been lawfully and validly transferred to it in September 1999, the prayer for relief on the part of South Port for an order that the Acesite shares be transferred from the Bank to South Port was “nonsensical”.

38. Thus, it must follow that the pleaded claims of Evallon and South Port are unsustainable and liable to be struck out – or, more precisely, that the pleading in these terms ought not to be permitted by way of amendment – on the basis that the proposed Amended Points of Claim fails to disclose a cause of action against the Bank maintainable by either party.

39. Nor, argued Mr Coleman, was it any answer for Evallon and South Port to refer to passages in the existing Defence; either the draft Amended Points of Claim reveals reasonable causes of action, or it does not, and it is only if the claims of Evallon and South Port as currently put forward are not demurrable on their face that any purported joinder of issue comes into play.

40. The substance of the argument propounded in the skeleton submission of Mr Harris SC and Mr Lam SC initially focused upon the pleaded facts.

41. It is accepted that Evallon sold the mortgaged Acesite shares to South Port for the sum of HK$257,661,000, but it is pleaded that, contrary to the Bank’s denial, both the 2^nd and the 4^th plaintiffs aver that the Bank had full knowledge of the sale, and never had objected to it: [see draft Amended POC at para 25; Reply, at paras 13-14].

42. It is also pleaded that in March 2002, the Bank had demanded repayment of the Genius Reward loan, and that negotiations had ensued between the parties for the purpose of concluding a global settlement as to the repayment of various loans, including the Genius Reward loan [see draft APOC, at paras 30-39]; in fact, as at 15 January 2003 the amount owed to the Bank under the Genius Reward loan was but approximately US$1.088 million, and the aggregate amount, together with other relevant loans, that of US$2.296 million.

43. In fact, said Mr Harris, in January 2003 the relevant parties, including the Bank, the 3^rd plaintiff, Mr Yu, and Genius Reward had entered into a Compromise Agreement to settle, inter alia, the indebtedness of Genius Reward, but despite the existence of this Agreement, and without the knowledge of the plaintiffs, the Bank had purported to exercise its power of sale qua mortgagee, and had sold to Waterfront all the Acesite shares and the Philippines shares for a total consideration of only US$2.060 million, which sale, it is alleged, was effected at a gross undervalue, equivalent to 1.499 pesos per share; in fact, in its Defence the Bank claimed that the ‘Philippines shares’ were only worth 1.50 pesos per share between November 2002 and February 2003, but no evidence had been adduced, and for the purpose of the present application, Mr Harris submitted, it must be assumed that the share sale by the Bank to Waterfront indeed was effected at a substantial undervalue.

44. Some indication of the scale of this undervalue, he said, was that as a result of the purported sale by the Bank to Waterfront in February 2003, the buyer had acquired a controlling interest in the company holding the hotel for a ‘mere’ US$2.06 million, whilst an earlier offer, in March 1999, in the sum of US$24 million, had been rejected.

45. The plaintiff’s case, said Mr Harris, was that the assignment of the Acesite shares by the Bank to Waterfront was unlawful and liable to be set aside for a multiplicity of reasons: it was in breach of the Compromise Agreement entered into between Bank and debtors, in particular by reason of the fact that the 3^rd plaintiff, Mr Yu, was not in default in repaying the Bank [POC, para 59(A)]; it was in breach of the Evallon share mortgage and the Acesite share mortgage, given that the Bank had failed to serve a default notice on Genius Reward prior to the purported sale [POC paras 59(B)(C)]; it was in breach of the Bank’s duty, qua mortgagee, to sell the shares at the best price reasonably obtainable [para 59(D)] and/or to sell no more of the mortgaged shares as was necessary to discharge the Genius Reward loan [para 59(E)]; it was in breach of the Bank’s fiduciary duty under the powers of attorney in both share mortgages [paras 59(F)(G)]; it was an act that amounted to a conspiracy between the Bank and Waterfront to defraud or injure [para 59(H)]; and lastly, this was unconscionable conduct by the Bank [para 59(I)].

46. Accordingly, counsel submitted, the plaintiffs wrongfully had been deprived of the equity of redemption in both the Acesite and the Philippines shares, and thus sought relief against the Bank by way of damages and/or rescission of the purported sale of the shares.

47. In terms of the present strike out application, Mr Harris noted that the primary allegation on the part of the applicant was that, in effect, neither the 2^nd or the 4^th plaintiffs had any interest in the Acesite shares when the Bank sold them (together with the Philippines shares).

48. This was because as against the 2^nd plaintiff, it is said that no equity of redemption could have arisen in respect of the Acesite shares by reason (as disclosed in the affidavit evidence of Mr Kan) of the breach of the 2^nd plaintiff in not depositing the relevant share certificates with the Bank, and that even if any equity of redemption had arisen, it had been extinguished as a result of the sale for valuable consideration by Evallon to South Port, and thus that Evallon had ceased to have any interest therein; whilst as against South Port, it is said that South Port had no interest in the equity of redemption under the Evallon share mortgage because it was already in possession of the Acesite shares consequent upon the sale by Evallon, and thus South Port’s prayer for possession of these shares was a ‘nonsense’; and third, that given that South Port was not a party to the Evallon share mortgage, that the Bank never had owed any duties to the 4^th plaintiff, contractual or otherwise.

49. However, Mr Harris submitted, whilst he could understand the manner in which the applicant presented its argument, this did not mean that it was correct, because if the Bank were right, this would mean that, in effect, the alleged breaches committed by the Bank under the Evallon share mortgage, in terms of vires to sell and the undervalue of the price thus achieved, could not be remedied by the mortgagee.

50. Moreover, he said, absent action by Evallon against the Bank, the remaining action on the part of the 1^st plaintiff, Acesite, “may be futile” because even if the 1^st plaintiff’s action is successful, and Acesite obtains a remedy against the Bank, if Acesite already has been sold to and now is owned by the 2^nd defendant, Waterfront, then effectively all remedy is denied to Evallon and its shareholders – and that such a result “cannot be right”.

Principles of striking out

51. I remind myself of the basic principles to be employed in evaluating any strike out application: namely, that this should be done only in “plain and obvious cases”, there should be no trial on affidavit, disputed facts must be taken in favour of the party sought to be struck out, and that the claim must be “obviously unsustainable” and the pleadings “unarguably bad” before the application will succeed; thus, if the court does not think that the matter is clear beyond doubt, or if it fails to be satisfied that there is no reasonable cause of action or that the proceedings are frivolous or vexatious, the action should not be struck out: see the observations of Silke JA in Ha Francesca v. Tsai Kut Kan [1982] HKC 382 at 392.

52. These observations are as relevant today as they were when they were made some 25 years ago. 

53. In this connection also my attention has been drawn by Mr Harris to the dictum of Litton VP (as he then was) in Yue Xiu Finance Co Ltd v. Dermot Agnew [1996] 1 HKLR 137, at 141:

“…What the defendants were seeking to do, by their summons, was in effect to drive the plaintiff from the judgment seat.  This is a drastic remedy and it follows that no court should give effect to it unless it is satisfied that the legal basis of the claim is unarguable or is almost inconstestably bad: and, as Sir Thomas Bingham M.R. remarked in E (A minor) v Dorset County Council [1994] 3 WLR 853 at 865, where the legal viability of the cause of action is sensitive to the facts, an order to strike out should not be made.”

54. That these principles have been applied in the Commercial Court also is clearly established: see, for example, the judgment in this court in Cable & Wireless HKT International Ltd v. New World Telephone Ltd, HCCL 229 of 1999 (unrep.), ex tempore Judgment dated 7 June 2000, wherein this court followed the observations in Lonrho plc v. Fayed [1989] 3 WLR 631 and Lonrho plc v. Tebbit [1991] 4 All ER 973, at 979 regarding the necessity to reserve the remedy of strike out to plain and obvious cases, and in particular that where a case involves difficult points of law, such a strike out normally should be refused.

Decision

55. Looked at in the round, several matters strike me with some force about this case which serve, perhaps, to place the present strike out application into broad perspective.

56. First, and perhaps most obvious, it remains wholly unclear how or why there appears to have been, or indeed could have been, such parallel purported sales of the identical tranche of Acesite shares, that is, by Evallon to South Port and by the Bank to Waterfront.  All that currently is clear is that whilst the Bank alleges that the Evallon/South Port sale was without its consent, the 2^nd and 4^th plaintiffs contend otherwise, and aver that, to the contrary, the Bank was fully aware of and “acquiesced” in this sale.

57. As matters presently stand I do not understand how or why this situation has arisen, and which entity had the actual share scrip to sell and when; thus, however it may be pleaded, this case must be regarded as peculiarly ‘fact-sensitive’.  In this connection, also, I simply observe that this is obviously a pretty tangled factual web, and with all due respect, in these circumstances I am disinclined to pay much, or indeed any, attention to such affidavit evidence as has been filed, which is, of course, presently entirely untested by cross-examination.

58. Second, quite why it should be thought that any declaratory relief of this Hong Kong court should be regarded as of relevance in the sovereign territory of the Philippines, wherein there is ongoing a row about ownership of a Manila hotel, apparently between the 4^th plaintiff, South Port, qua purchaser of the Acesite shares from Evallon, and the 2^nd defendant, Waterfront, qua purported purchaser of the same Acesite shares from the Bank, is unclear, and I have no idea of what tactical considerations currently are at play. 

59. Be that as it may.  On the basis that this court indeed is required to referee this dispute, surprising as this may seem to the objective observer, the fact remains that until this murky factual situation is sorted out by the court on the basis of such evidence as is presented to it at trial, in my view there is and can be no basis upon which to determine what legal rights have, or have not, been infringed, when and by whom.

60. Nor, for that matter, is it possible to hazard any sensible response to the divers legal propositions which have been pressed upon the court by Mr Harris in his skeleton argument placed before the court for use in this application.

61. For example, Mr Harris has made submissions as to the alleged interest of the 4^th plaintiff, South Port, in the equity of redemption by reason of the purchase from Evallon, and of the fact that the Evallon share mortgage had not been discharged.

62. He also suggests that whilst the Bank contends that the Evallon/South Port sale was in breach of the Evallon share mortgage, it is unclear why, as a matter of law, such breach is said to have invalidated the sale between the 2^nd and 4^th plaintiffs – however if this were correct, he submitted, this would mean that the equity of redemption indeed had remained with the 2^nd plaintiff, and thus that the Bank’s case that Evallon no longer had an interest in these shares ex hypothesi must fail.

63. In any case, counsel argued, the better view of the law was that even if the sale by Evallon to South Port was in breach of the Evallon share mortgage, this did not invalidate Evallon’s assignment of the equity of redemption to South Port – see Fisher and Lightwood on Mortgages, 12^th ed at para 47.3 – and thus South Port had acquired an interest in the equity of redemption as at February 2003, and clearly had a legitimate interest in these shares.  And in any event, the 4^th plaintiff’s interest or otherwise was clearly a matter of ‘mixed fact and law’ for trial.

64. Mr Harris further expounded upon the Bank’s duty as mortgagee of these shares, in particular with reference to the established principle that a mortgagee has a legal obligation to take care to obtain the true market value of the mortgaged property as at the date of sale, and he noted that in the present case the situation was further complicated because, on the evidence filed (see Yu, 2^nd affirmation, at paras 9-11) the 1^st and 2^nd defendants were “related parties”, with the result that, as the relevant case-law establishes, the burden of proving the validity of the transaction lies on the selling mortgagee and the related purchaser; and also, he asserted, the mortgagee bank owed a duty in equity in the exercise of its power of sale to the 4^th plaintiff, because a mortgagee owes a duty not only to the mortgagor but to anyone interested in the equity of redemption, including the purchaser of the mortgaged property, in this context quoting the speech of Sir Richard Scott VC in Medforth v. Blake [2000] Ch 86, at 101F-102F, and of Lord Templeman in Downsview Nominees Ltd v. First City Corporation Ltd [1993] AC 295, at 311E-312C.

65. Naturally I express no view as to the continuing rights or otherwise of Evallon (if the sale to South Port be void) or as to the position of South Port as purported subsequent encumbrancer subject to the pre-existing share mortgage; nor am I willing to express any concluded view upon Mr Harris’s argument that the arguments of the 1^st defendant are “misconceived” at law, and that what is now being said is that, in the present circumstances, no party is able to sue upon the right of redemption of the Evallon share mortgage whether the Bank’s obligation to Evallon is based in equity or in contract, or both.  It is sufficient, for current purposes, simply to recount such arguments as presently are sought to be put forward at trial.

66. This brings me to the third broad observation.  Mr Coleman, who mounted his application shortly and as usual, highly persuasively, in fact seeks on behalf of his client to exclude from the trial any such arguments as Mr Harris on behalf of his plaintiff clients now seeks to make.

67. I could understand the defendants’ position, and possibly may have been more interested in terms of the perceived internal contradictions within the plaintiffs’ pleaded claim, if and in so far as the strike out as now mooted were to have the effect of removing the 1^st defendant bank from the action entirely.

68. As Mr Coleman readily conceded, however, this would not be the position even were he to succeed in this application.  His client would still be in the position of a defendant in this action given the extant action against it by the third plaintiff, and in the circumstances I see no merit in now effectively ‘tying the hands’ of the court at trial – which is precisely what Mr Coleman is after – by summarily striking out claims against the bank at this interlocutory stage.

69. If, as Mr Coleman says, the claims as now mounted against the Bank by the 2^nd and 4^th plaintiffs are bad, this no doubt will become quickly apparent at trial, when the court has all the evidence before it, and will be in a position to make factual findings of what did, or did not occur, and with the knowledge of whom, regarding the apparent parallel sales of the Acesite shares.

70. And in so far as bad claims are pursued against his client, the 1^st defendant, which, as I have observed, is required to remain in the action notwithstanding the result of this application, it seems to me that such prejudice, if any, can be remedied by appropriate orders for costs.

71. In my judgment it is clearly just and convenient (and forensically necessary) for the claims by Evallon and South Port against the 1^st defendant to be tried together – indeed, I fail to see how it is not also in the interest of the 1^st defendant bank now to face these claims and, if its criticisms be well-founded, to dispose of these claims in one proceeding.

72. In this connection I note that there is no strike out application by Waterfront, the 2^nd defendant, the putative purchaser from the Bank of the Acesite shares, which transaction now is sought to be avoided.

73. I would venture to add that purely in terms of pleading – which, at bottom, forms the substance of Mr Coleman’s application – this is the Commercial Court, not a Court of Chancery.  The raison d’etre of the Commercial Court is to decide commercial disputes, no more and no less, and generally it is more concerned with the substance of the dispute and has limited interest in the precise form of pleadings, which suffice only to define the parameters of the dispute requiring decision and do not, save in the most extreme cases, provide grounds for striking out claims which are not “incontestably bad”.

74. I do not consider these claims either “incontestably bad” or demurrable on the face. 

75. It follows from the foregoing that, in the exercise of my discretion, I decline to accede to Mr Coleman’s application to strike out upon any or all of the bases prayed in aid.

76. It also follows from the foregoing that I grant the plaintiffs leave to re-amend in terms of the draft Amended Points of Claim.

Order

77. I make the following orders:

1.   Upon the application by the 1^st defendant, by summons dated 2 June 2006:

(i)    the application to strike out is dismissed;

(ii)  there is to be an order nisi that the costs of and incidental to the strike out application (including the hearings on 31 January 2007 and on 9 May 2008) be reserved to the judge trying the action, such order to become absolute within 21 days of the date hereof unless application be made so to vary.

  I make the costs order in this nisi form because it seems to me that pending ascertainment of the true factual position by evidence at trial, and specific findings of fact made thereon, this court is unable broadly and fairly to consider the issue of the costs of the application to strike out.

2.   Upon the application by the plaintiffs by summons dated 22 December 2006 for leave to re-amend the Points of Claim (in terms of the draft now before the court):

(i)    the application so to amend is granted;

(ii)   there be an order nisi that the costs consequential upon such amendment be to the defendants in any event, such costs to be taxed if not agreed, and that such order nisi is to become absolute unless application be made so to vary within 21 days of the date hereof.

  The foregoing order nisi as to costs is intended solely to cover the costs consequentially incurred in terms of the defendants’ pleading amendments.  The court has taken the view that in so far as the costs of the application to amend overlap with the general argument, that such costs are included within the order for costs to be made at trial upon the strike out application.

Finally

78. This is a matter which clearly can be brought to trial in short order, given the appropriate will so to do on the part of the parties.  It seems to me that the case can be tried either at the end of this year, or in early 2009, and the matter thus quickly decided on the merits.  It is a salutary reflection upon our system that fully 15 months now have been lost by reason of this adjourned strike out, in which period this case could have been ‘done and dusted’.  I venture to express the hope that the parties now will co-operate to have the matter tried, and that no further time will be spent upon interlocutory applications wasteful in terms of time and costs, the effect of which in any event does not remove the necessity for the presence at trial of each of the parties currently before the court.