ZHONGTAI INTERNATIONAL WEALTH MANAGEMENT LTD v. ROYAL MOON INTERNATIONAL CO LTD AND ANOTHER

HCA 2755/2015

[2018] HKCFI 1952

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2755 OF 2015

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JUDGMENT

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1.  This is the Plaintiff’s application against the 2^nd Defendant for summary judgment, or alternatively, interim payment.

BACKGROUND

2.  The Plaintiff’s claim against the 1^st Defendant, Royal Moon International Company Limited (“Royal Moon”), and the 2^nd Defendant, China Kingstone Mining Holdings Limited (中國金山礦業控股集團有限公司) (“China Kingstone”), is for breach of an alleged trust arrangement (“the Trust Arrangement”).

3.  The Plaintiff, Zhongtai International Wealth Management Limited (中泰國際優越理財有限公司) (“Zhongtai”), is a Hong Kong company carrying on a licensed moneylending business.  Its former name was “Qilu International Wealth Management Limited” (齊魯國際優越理財有限公司).

4.  In around April to May 2015, China Kingstone, which is a listed company in Hong Kong with its principal business in mining and processing of marble and marble products, intended to make an open offer for issuance of shares to raise approximately HK$120,000,000, or specifically 1,213,379,318 shares at the price of HK$0.10 each (“the Open Offer”).

5.  According to the public announcement and the information provided in the Open Offer prospectus, the purpose of the Open Offer was to raise funds for:

(i)   the acquisition of loan note (“the Loan Note”) of the principal amount of US$10 million by China Kingstone’s wholly-owned subsidiary, China Kingsmount Industrial Group Limited (中國金山實業集團有限公司) (“China Kingsmount”) from Zhongtai’s associate company, Qilu International Investment Limited (齊魯國際投資有限公司) (“Qilu International”);

(ii)   the acquisition of China Fortune Investment Holdings Limited; and

(iii)   the general working capital of China Kingstone.

6.  For the acquisition of the Loan Note (“the Loan Note Acquisition”), China Kingstone as the purchaser made a sale and purchase agreement dated 13 May 2015 (“the Acquisition Agreement”) with Qilu International as the vendor. 

7.  China Kingstone tried to procure an independent professional underwriter to underwrite the Open Offer.  Approaches had been made to Zhongtai and its associate companies and a major bank in the Mainland but with no fruitful result.  Eventually, one Madam Gao Yan (“Madam Gao”), who came from the Mainland and through her shelf corporate vehicle Royal Moon, agreed to be the only underwriter for the Open Offer.  They agreed the underwriting obligations (“the Underwriting Obligations”) on 13 May 2015.

8.  There had been prior business dealings and business relationships between Zhongtai and China Kingstone.

9.  China Kingstone then introduced Madam Gao to Zhongtai.  There was some dispute as to whether Zhongtai knew Madam Gao before the introduction.  China Kingstone asked if Zhongtai was willing to provide a loan to Royal Moon to meet its Underwriting Obligations.

10.  It is Zhongtai’s case that as Royal Moon was a corporate shell vehicle of Madam Gao, both of whom were unknown and unfamiliar to Zhongtai, Zhongtai was only willing to provide a loan if it was properly protected or secured.  The parties, says Zhongtai, therefore orally agreed to the Trust Arrangement whereby the loaned monies would be held on a Quistclose trust by China Kingstone for the specific purpose of meeting Royal Moon’s Underwriting Obligations.  In particular:

(i)   the specific purpose of the loaned monies was expressly stated in the loan documents with Royal Moon as well as Royal Moon’s internal corporate documents; and

(ii)   the loaned monies were specifically ring-fenced in China Kingstone’s Open Offer bank account (“the Open Offer Account”), and one of Zhongtai’s directors, Mr Zhang Yanfeng (“Mr Zhang”), was made a controlling signatory of the Open Offer Account by China Kingstone on or about 12 June 2015.

11.  Under such circumstances, Zhongtai submits that the loaned funds were specifically ring-fenced in the Open Offer Account, from which no money could be withdrawn without Zhongtai’s consent.

12.  On 23 June 2015, it was expected that under its Underwriting Obligations, Royal Moon would have to subscribe 668,040,194 shares of the Open Offer, which at the price of HK$0.10 per share required funds of HK$66,804,019.40.  Therefore, Zhongtai arranged for loan funds of HK$66,850,000 for Royal Moon, which were paid directly into China Kingstone’s Open Offer Account.

13.  It then transpired that under its Underwriting Obligations, Royal Moon only had to subscribe 54,577,056 shares at the price of HK$5,457,705.60.  This left a balance of the funds of HK$61,392,294.40 (“the Balance of Funds”) in the Open Offer Account, i.e. the sum of loaned monies which was unused for the Underwriting Obligations.

14.  There was public announcement of the result of the Open Offer exercise on 26 June 2015.

15.  Instead of returning the Balance of Funds to Zhongtai, China Kingstone released such funds to Royal Moon on 7^th July 2015.  Zhongtai claims that it was not aware of such release until mid-August 2015.

16.  Zhongtai claims that China Kingstone was in breach of the alleged Trust Arrangement by wrongfully releasing the Balance of Funds from the Open Offer Account to Royal Moon, who was in “knowing receipt” of such payment.

17.  After the completion of the Open Offer exercise, China Kingsmount paid the sum HK$77,800,000 (equivalent to the purchase price of US10 million) to Zhongtai Financial Investment Limited (中泰金融投資有限公司) (“Zhongtai Financial”), which was the new name of Qilu International, for the Loan Note Acquisition.  The payment receipt was signed by the same Mr Zhang on behalf of Zhongtai Financial.  Such payment had taken up a substantial share of the funds raised by China Kingstone in the Open Offer exercise.

18.  Subsequently, the issuer of the Loan Note, Magnificent Century Limited, defaulted by failing and refusing to honour the obligation to pay the sum of US$10,000,000 under the Loan Note.

19.  China Kingsmount claims that Zhongtai Financial had made some false representations regarding the financial positions and other related matters about Zhongtai Financial and the Loan Note, which caused substantial loss and damage to China Kingsmount.  On 7 September 2016, China Kingsmount commenced high court action, HCA 2316/2016, against Zhongtai Financial to claim for rescission of the Acquisition Agreement and damages resulting from breach of contract and misrepresentation.

20.  For the present proceedings, Zhongtai issued the writ against Royal Moon and China Kingstone on 24 November 2015.  On 27 November 2015, DHCJ Kent Yee granted a proprietary and Mareva injunction against Royal Moon.  A Chabra injunction was later made against various third parties who allegedly received the traceable proceeds of the Balance of Funds including Ms. Gao and Mr Zhang Cuiwei (“Mr Zhang CW”).  Default judgment was obtained against Royal Moon on 17 June 2016, which included a declaration that the Balance of Funds transferred from the Open Offer Account to Royal Moon are held on trust by Royal Moon for Zhongtai.

21.  China Kingstone filed the Defence on 25 February 2016.  On 26 June 2017, Zhongtai took out the present application for summary judgment and interim payment against China Kingstone.

MERITS OF THE APPLICATIONS

22.  Mr Chan, counsel for China Kingstone, opposes the summary judgment application on the following three grounds:

(i)   Zhongtai’s case against China Kingstone is based on “allegations of fraud”, and hence, it falls within the “fraud exception” of O 14 jurisdiction;

(ii)   China Kingstone has managed to establish an arguable defence to Zhongtai’s claim; and

(iii)   Zhongtai’s own pleaded case lacks particulars as to how China Kingstone should be held liable for the sum now claimed, as it was wholly proper for China Kingstone to return the Balance of Funds to Royal Moon (i.e. the underwriter) after the completion of the Open Offer exercise.

23.  I will deal with these arguments in turn.

(i)      Whether the fraud exception applies in the present case?

24.  The legal principles relating to the fraud exception under O 14 jurisdiction have been succinctly summarized by Chow J in 張才奎所託管中國山水投資有限公司股份相關員工v 張才奎[1]:

“THE ‘FRAUD EXCEPTION’

12. Order 14, rule 1(2)(b) of the Rules of the High Court provides as follows:-

‘Subject to paragraph (3) this rule applies to every action begun by writ other than –

(b) an action which includes a claim by the plaintiff based on an allegation of fraud’.

13. As is well known, the Hong Kong courts have departed from the approach of the English courts regarding the scope of the exception (“the fraud exception”) referred to in Order 14, rule 1(2)(b) of the Rules of the High Court. The scope of the fraud exception in Hong Kong has recently been comprehensively reviewed by the Court of Appeal in Zimmer Sweden AB v KPN Hong Kong Limited [2016] 1 HKLRD 1016 (11 January 2016). Yuen JA, with whom Lam VP and Kwan JA agreed, set out the applicable principles in paragraph 18 of her judgment in that case, as follows:-

‘(1) The court should determine whether ‘the fraud exception’ applies at the time when the application for summary judgment is heard. Therefore the court should not be restricted to a consideration of the statement of claim only, but should examine all relevant materials existing at the time of the hearing, including subsequent pleadings and the affidavits. (It would be noted that in Pacific Wire, the court even took into account the skeleton argument of the plaintiff’s counsel at first instance. With respect I tend to the view that given the nature of skeleton submissions, they should be considered only where they serve to clarify an ambiguity in the plaintiff’s case).

(2) Having regard to all the relevant materials, the question to be asked by the court is ‘does this action include a claim for which an allegation of fraud would have to be made by the plaintiff in order to establish or maintain that claim?’ If the answer is affirmative, ‘the fraud exception’ is engaged and the court has no jurisdiction to hear the summary judgment application, even if the plaintiff seeks to hive off that claim from another claim (eg for dishonoured cheque) for which summary judgment would have been available. That consequence follows from the wording of ‘the fraud exception’ (Pacific Wire para. 19).

(3) In considering whether an allegation of fraud would have to be made to establish or maintain a claim, one must look at the substance, and not the mere form, of the plaintiff’s case. If all the factual constituents of fraud are alleged and relied upon, it does not matter whether the actual word ‘fraud’ has or has not been used (Newton p.1301).

(4) The court must consider whether those factual constituents of fraud are relied upon in order to establish or maintain a claim. In Newton, the court accepted that the factual constituents of a Derry v Peek fraud had been set out in the pleadings. However in order to establish the plaintiff’s claims of breach of contract, breach of fiduciary duty and negligence, it did not need to make any allegations of fraud. On the facts of that case, the breach of contract, breach of fiduciary duty and negligence would still be established, even if the defendant had been completely honest, and was only mistaken (p.1302). It would appear from the report that the defendant had not pleaded a defence which the plaintiff needed to reply to by alleging fraud on the part of the defendant. This may be contrasted with A-1 discussed below.

(5) It may be that originally a claim (eg breach of fiduciary duty) may be established without the plaintiff having to make an allegation of fraud (as in Newton). But the nature of the defence (whether disclosed in a pleading or an affidavit) may be such that in rebuttal (whether in a Reply or in an affidavit in reply), the plaintiff would have to allege fraud, in which case, ‘the fraud exception’ would be engaged. So for example, in A-1the defence was that there was no breach of fiduciary duty because the receipt of money was pursuant to a declaration of dividend. In reply to this defence, the plaintiff alleged that the declaration was an ex post facto fabrication. Consequently, by the time of the hearing of the summary judgment application, the plaintiff would have to make out an allegation of fraud by the defendant in order to maintain the claim for breach of fiduciary duty.

(6) Finally, as to what is an allegation of fraud for the purpose of ‘the fraud exception’, this court is bound by the judgment in Pacific Wire to adopt the wide/liberal meaning. The rationale for adopting a wide meaning had been suggested by Kaplan J in Skink and adopted by this court in the Pacific Wire judgment. That judgment cannot be said to be plainly wrong. Further if the narrow meaning is adopted, the anomaly observed in Newton would arise, viz summary judgment would not be available for only one type of dishonest conduct, but available for all other types of dishonest conduct. To conclude, ‘the fraud exception’ would be engaged where what is alleged is an intentional or reckless dishonest act (or omission) done with the purpose of deceiving.’

14. From the above exposition by the Court of Appeal of the fraud exception, three points should be noted:-

(1) In considering whether the fraud exception applies, the court is not restricted to a consideration of the statement of claim only, but should examine all relevant materials existing at the time of the hearing, including subsequent pleadings and affidavits. If pleadings and affidavits can be considered, I can see no reason in principle why allegations raised in letters before action cannot also be considered.

(2) The court should consider the substance, and not the mere form, of the plaintiff’s case in deciding whether the fraud exception applies.

(3)  For this purpose, ‘fraud’ means an intentional or reckless dishonest act (or omission) done with the purpose of deceiving.”

25.  Chow J held that the fraud exception applied in that case, the facts of which were very similar to those in the present one. It was alleged that the 1^st defendant, without the knowledge or consent of the plaintiffs, transferred the plaintiffs’ shareholding in a company in breach of trust.  Although a breach of trust did not necessarily involve dishonesty, the plaintiffs were in substance complaining that the 1^st defendant acted dishonesty in seeking to deprive of their beneficial interests in the shares.  Though the words “fraud” and “dishonesty” were not included in the pleading, the plaintiffs were making an allegation of intentional or reckless dishonest act done with the purpose of deceiving.

26.  In my judgment, the same observation can be made here.  Though the words “fraud” and “dishonesty” are not included in the pleading, Zhongtai is in substance making allegations of intentional or dishonest conduct against China Kingstone, in particular:

(i)   knowing the alleged Trust Arrangement, China Kingstone intentionally removed Mr Zhang as the signatory of the Open Offer Account and transferred the Balance of Funds out to Royal Moon without Zhongtai’s consent or knowledge; and

(ii)   there was close connection between Royal Moon and China Kingstone, and Zhongtai claims that a staff of China Kingstone actually assisted Royal Moon in transferring the Balance of Funds out of Royal Moon’s account.

27.  Mr Chain, counsel for  Zhongtai, has referred me to case of Chung Ying Reminbi Exchange Company v Hu Yan[2], in which DHCJ A To held that the fraud exception did not apply to a simple case for conversion.  However, that case was quite different as the plaintiff therein was not alleging any fraud or dishonest conduct against the defendant.  On the other hand, it is clear from the Court of Appeal’s judgment in Zimmer Sweden AB v KPN Hong Kong Limited[3] that the court is required to consider the substance, and not the mere form, of the plaintiff’s case in deciding whether the fraud exception applies.  In looking at the substance of Zhongtai’s claim, it is clear that the fraud exception applies and the O 14 application can be dismissed on this ground alone.

(ii)     Whether China Kingstone has managed to establish an arguable defence to Zhongtai’s claim?

28.  Further, I also find that China Kingstone has an arguable defence to Zhongtai’s claim.

29.  According to Zhongtai, the single determinative factual issue in this case is whether the alleged Trust Arrangement existed.  In this regard, Mr Chain argues that the weight of the evidence is overwhelmingly in favour of the existence of the Trust Arrangement.

30.  As Royal Moon and Madam Gao were not known to Zhongtai, Mr Chain submits that there was every reason for Zhongtai to seek protection for any loan to be made to unknown parties.  The sole and specific purpose of the loan funds to Royal Moon, i.e. to discharge Royal Moon’s Underwriting Obligations, was known to all parties. Further, the arrangement relating to the provision of the funds was intended to preserve Zhongtai’s control over the use of the funds.  The funds were paid into a ring-fenced and separate Open Offer Account and Mr Zhang was made a controlling signatory of such account.  All these factors support an objectively drawn inference that the Trust Arrangement existed.

31.  It is Zhongtai’s case that the Trust Arrangement was agreed by Zhongtai, Royal Moon and China Kingstone orally.  To support the existence of the Trust Agreement, Zhongtai is relying heavily on the facts that: (i) China Kingstone should have known about the specific purpose of the loan by looking at the loan facilities letters and the internal documents of Royal Moon; and (ii) Mr Zhang was made a controlling signatory of the Open Offer Account.  I agree that these factors do support the existence of the Trust Arrangement.

32.  However, the story does not end here.  One of the major purposes of the Open Offer exercise was to raise funds to finance the Loan Note Acquisition from Zhongtai’s associate company.  Even worse, the issuer of the Loan Note defaulted in the repayment of the loan which caused considerable losses to China Kingstone’s subsidiary company.

33.  According to Zhongtai’s own case, the whole arrangement would virtually mean that that Zhongtai was in fact lending money, through the alleged Trust Arrangement, to Royal Moon or China Kingstone in order to complete the acquisition of the Loan Note from its associate or related company.  This was certainly a dubious transaction.

34.  Mr Chan submits that Zhongtai’s case of the Trust Arrangement, under which it would lend money for the main purpose of acquiring its own Loan Note, might even be in breach of certain restrictions under the Money Lender’s Ordinance or the Companies Ordinance, or the self-dealing rules.   At this stage, I cannot conclude whether it was indeed the case.  However, taking into account the dubious nature of the transaction, it certainly deserves serious investigation at the trial.

35.  China Kingstone denies the existence of any oral agreement for the Trust Arrangement.   China Kingstone also alleges that it was the usual practice for the underwriter to procure its own finance for the underwriting exercise and it was common for its own financer to pay the fund directly into the “open offer account”.   China Kingstone had no knowledge as to the dealings between Zhongtai and Royal Moon. Its primary responsibility was to return the Balance of Funds to the underwriter and that was actually what China Kingstone did in the present case.

36.  As to the inclusion of Mr Zhang as a signatory of the Open Offer Account, China Kingstone explains that, on or about 12^th June 2015, at the request of Mr Wang Shoulei of Zhongtai (“Mr Wang”), Mr. Zhang was added as a signatory of the Open Offer Account for the purpose of securing the payment of the consideration under the Loan Note Acquisition and not due to any trust arrangement. According to a document signed by Mr Zhang on behalf of Zhongtai Financial dated 25 June 2015, the full consideration of US$10,000,000 under the Loan Note Acquisition had been paid to Zhongtai Financial.  As there was no further need to maintain or to keep Mr. Zhang’s signatory to the Open Offer Account, Mr Zhang’s signatory was therefore removed.  Though China Kingstone might know that Zhongtai provided the loan to Royal Moon to meet its Underwriting Obligations, China Kingstone had to honour its obligation to return the Balance of Funds to the underwriter, i.e. Royal Moon, and so China Kingstone is not liable to Zhongtai for the release of such funds.

37.  Mr Chain criticizes that China Kingstone’s explanation makes no sense at all.  As explained in Mr Wang’s 5^th affirmation, China Kingstone had already given a contractual guarantee under clause 6.3 of the Acquisition Agreement.  According to clauses 4.1.1 and 5.2.2 of Acquisition Agreement, the completion of the Loan Note Acquisition was conditional upon the completion of the Open Offer, upon which Zhongtai Financial would be paid the full purchase price by cashier order.  Under such circumstances, there was no need for any security as Kingsmount was not purchasing the Loan Note on credit.  Further,the Acquisition Agreement has an entire agreement clause^[4], and there are no terms in the Acquisition Agreement requiring Mr. Zhang to be made a controlling signatory of the Open Offer Account.

38.  Despite the able submission of Mr Chain, the court cannot simply dismiss China Kingstone’s explanation without a trial.  At this stage, there are still many unanswered questions in this case, for examples: (i) whether it was proper for Zhongtai to provide a loan to the underwriter for the Open Offer exercise the main object of which was to raise funds to finance the acquisition of the Loan Note from its associate company; and (ii) whether Zhongtai was very keen to dispose of the Loan Note held in the name of its associate company because it was in possession of some information about the creditworthiness of the Loan Note which was not available to China Kingstone and its subsidiary company.  Furthermore, businessmen may have different ways of conducting transactions, and it might be possible for Zhongtai to ask for additional security for the Loan Note Acquisition by including Mr Zhang as a signatory of the Open Offer Account.  In my judgment, all the dubious features of this case, together with the real reason as to why Mr Zhang was made a signatory of the Open Offer Account, have to be fully investigated at the trial.  The court cannot and should not conduct a mini trial based on affidavit evidence alone, and so this is not an appropriate case for a summary judgment application.

39.  Further, there is a serious factual issue as to whether the parties had made the alleged oral agreement for the Trust Arrangement.  There is no document recording or even mentioning the Trust Arrangement.  The evidence shows that Zhongtai was related to the strong Zhongtai group in the Mainland.  Zhongtai was an experienced financer with full access to professional and legal services, and it has substantial background and connection in the financial industry both in Hong Kong and the Mainland. If Zhongtai was keen to protect its interest in the Balance of Funds as alleged, it would be very difficult to understand why Zhongtai would not have asked to reduce the oral agreement into writing, in particular China Kingstone would have little difficulty in removing Mr Zhang as a signatory of the Open Offer Account.  For a substantial financial transaction of such serious nature, one would expect that there should have been some documents to back up the existence of the alleged oral agreement for the Trust Arrangement.  Yet there is none in the present case.

40.  In addition, Zhongtai claims that it was not aware of the release of the Balance of Funds to Royal Moon until mid-August 2015.  However, the subscription result of the Open Offer exercise was announced in late June 2015, and so Zhongtai should by then have known that there was a substantial sum sitting in the Open Offer Account allegedly to its credit. Despite that, Zhongtai made no written demand, complaint or request at all for the return of the Balance of Funds.  If, as claimed by it, Zhongtai was keen to protect its interest in the Balance of Funds in the Open Offer Account, it would be difficult to explain why it had not made any immediate written demand for the return of the Balance of Funds.  Such inaction on the part of Zhongtai certainly undermines the credibility of its case.

41.  In order to support that there was close connection between Royal Moon and China Kingstone, Zhongtai also claims that:

(i)   the company chop of Royal Moon was kept in the office of China Kingstone;[5]

(ii)   China Kingstone had control and knowledge about the operation of the bank account of Royal Moon;[6]

(iii)   there were business transactions and dealings between China Kingstone’s subsidiary and one National Success Holdings Limited, the latter of which Zhongtai claims had some ties with Royal Moon.

42.  Mr CW Zhang, executor director of China Kingstone, gave various explanations to these queries raised by Zhongtai.[7]   I do not propose to address each of these explanations in detail, save as to say that these are certainly issues which need to be tried.  The court cannot simply make a determination on these factual matters based on affidavit evidence alone.

43.  Apart from the relationship between Royal Moon and China Kingstone, there is also a triable issue as to the real relationship between Zhongtai and Madam Gao.  In the affirmations, Zhongtai tried to distance itself from Madam Gao and Royal Moon.  Yet according to China Kingstone, when they negotiated for the underwriting agreement, China Kingstone requested Madam Gao and Royal Moon to provide some fund proof to show that they had the financial ability to undertake the Underwriting Obligations.  By that time, Mr Wang of Zhongtai provided information to China Kingstone showing that Madam Gao was holding a margin account in Zhongtai’s associated securities company with substantial assets.  Hence, though China Kingstone might have had introduced Madam Gao to Zhongtai to arrange the provision of the loan for the underwriting exercise, Madam Gao had throughout been an existing client of Zhongtai’s associate company and Zhongtai had its own way to assess the financial ability of Madam Gao and Royal Moon.

44.  For the above reasons, China Kingstone has managed to establish an arguable defence to Zhongtai’s claim.  Since sufficient particulars of the defence had already been provided in the Defence filed by China Kingstone on 25 February 2016, Zhongtai should not have proceeded with the present O 14 application.  Hence, instead of just granting leave to defend, Zhongtai’s summary judgment should be dismissed all together.  Apart from the fraud exception, this would be another reason for the dismissal of the summary judgment application.

(iii)    Other related issues

45.  It is therefore quite unnecessary for me to consider the other arguments of China Kingstone.  However, since the parties have spent some time in addressing these issues, I will deal with them briefly here.

46.  First, I do not accept China Kingstone’s argument that Zhongtai’s Statement of Claim is defective in failing to include an express plea for a Quistclose Trust.  I am satisfied that the alleged Trust Arrangement has been properly pleaded in §§10 to 12 of the Statement of Claim.  The terms of the Trust Arrangement have been pleaded as a matter of material fact and it is clear from the pleaded terms that the Trust Arrangement amounts to a Quistclose trust in law.  However, despite such an express plea, the factual issue as to whether a Quistclose trust existed can only be determined by the court in a full trial and not on affidavit evidence alone.

47.  Second, I also do not accept that delay itself is a sufficient ground to deny Zhongtai’s application for summary judgment.[8]  It is certainly unsatisfactory for Zhongtai to make the summary judgment application nearly 16 months after the filing of the Defence by China Kingstone, but this would not be a sufficient reason to deny summary judgment if the application has merit. Unfortunately, there is none in the present case.

48.  For the above reasons, I dismiss Zhongtai’s application for summary judgment.  As China Kingstone has an arguable defence to Zhongtai’s claim, there is no basis for the court to order China Kingstone to make any interim payment to Zhongtai before trial.  I therefore dismiss the application for interim payment as well.  

49.  I also make a costs order nisi that Zhongtai do pay to China Kingstone the costs of the applications, which shall be made absolute 14 days after the date of the handing down of this Judgment.