KO TUNG MUNG AND ANOTHER v. WONG KA CHUN

HCA 111/2023

[2023] HKCFI 3347

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 111 OF 2023

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(By Counterclaim)

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D E C I S I O N

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A. Introduction

1.  This is the substantive hearing of the Plaintiff’s summons dated 26 January 2023 for continuation of the proprietary and Mareva injunction orders granted ex parte by DHCJ Leung on 20 January 2023 (the “Ex Parte Orders”).  

2.  The Plaintiffs’ case is that:

(1)  induced by the Defendant, the Plaintiffs raised HK$6.5 million (the “Funds”) for the purposes of acquiring shares in Cocoon Holdings Limited (中國天弓控股有限公司) (stock code 428) listed on the Stock Exchange of Hong Kong (the “Listco”).  The Funds were advanced to the Defendant on the understanding that the Defendant was not free to dispose of it and must apply it for the exclusive purpose of acquiring the Listco shares and the said shares belong absolutely to the 1^st Plaintiff.  A Quistclose trust was thus created over the Funds. 

(2)  The Defendant duly acquired 19,590,000 shares and transferred 11,026,000 of the Listco shares to the 1^st Plaintiff.  Hence, the Defendant should have retained 8,564,000 of the Listco shares (i.e., 19,590,000 minus 11,026,000) (the “Subject Shares”).

(3)  The Plaintiffs cannot ascertain the precise amount as the Defendant has not been forthcoming with the relevant information. 

(4)  Unbeknownst to the Plaintiffs and without the permission or authority of the Plaintiffs, the Defendant did not apply a certain sum of the Funds to acquire the Listco shares and pledged the Listco shares. 

(5)  Owing to the lack of information, the Plaintiffs’ best calculation at present is that the amount misappropriated was HK$2,045,052 (the “Misappropriated Sum”).  

3.  The Defendant, on the other hand, submitted that the money was a simple loan and he was free to use that money as he saw fit and that the same had been repaid. 

4.  The Plaintiffs submitted that the Defendant’s case seeks to disavow the written documents corroborating the Plaintiffs case and raises the allegation of forgery.  Yet it is unparticularised and unsupported by evidence.  The Defendant’s case also lacks inherent coherence and the Defendant has been evasive in addressing the Plaintiffs’ concerns. 

B.  Material Facts

5.  It is the Plaintiffs’ evidence that in or around April 2020, the 1^st Plaintiff met the Defendant as she entered the face-mask production market in the Mainland.  Over time, the two spoke on family and other matters.  The 1^st Plaintiff explained to the Defendant that she was getting older but wanted investment or business opportunities for her niece, the 2^nd Plaintiff.

6.  In or around April 2022, the Defendant invited the 1^st Plaintiff to meet at a club house where he encouraged her to participate in an investment scheme.  The Defendant explained:

(1)  he had a business in Beijing (the “Beijing Business”).  The Beijing Business has dealings with Cocoon Holdings Limited (中國天弓控股有限公司) (stock code 428) listed on the Stock Exchange of Hong Kong.

(2)  based on information available to him, he was confident that the Listco shares will increase in value;

(3)  he wanted funds from the 1^st Plaintiff so as to purchase shares of the Listco.  He asked that she provided him money for the investment and that they could share in its profit.  In this respect, since the 1^st Plaintiff has never transacted listed shares in her life, he proposed that:

(a)  the 1^st Plaintiff provide funds for him to acquire shares in the Listco on her behalf.  He will use the funds exclusively to purchase shares in the Listco;

(b)  after purchasing the shares in the Listco with the funds provided by the 1^st Plaintiff, he would hold and transact the shares on her behalf;

(c)  the Listco shares belongs to the 1^st Plaintiff absolutely;

(d)  the 1^st Plaintiff can then realise the Listco shares and they can share the profit in equal shares.  In order to thank the 1^st Plaintiff for her input, he would pay a further sum of money as gratuitous payment.  (the “Investment Scheme”).

7.  The 1^st Plaintiff initially explained that she did not have sufficient cash available but the Defendant, knowing that the 2^nd Plaintiff has properties in Hong Kong, suggested that the 1^st Plaintiff requests her niece to raise funds by mortgaging some of her properties.  In particular, the Defendant reassured the 1^st Plaintiff that he would (1) assist the 2^nd Plaintiff to obtain a mortgage if required and (2) cover any shortfall should the Investment Scheme fail.  The Defendant said the 1^st Plaintiff would not be exposed to any loss and the Defendant would mortgage his own properties in case there is any loss.  Relying on such representations in good faith, the 1^st Plaintiff agreed to participate in the Investment Scheme.

8.  In or around May 2022, the 1^st Plaintiff told the 2^nd Plaintiff about the Investment Scheme.  The 2^nd Plaintiff mortgaged two properties namely (1) Flat 14B of No. 731 Nathan Road and (2) Flat 4A of no. 733 Nathan Road (the “Properties”) and raised HK$7.5 million.

9.  Pertinently, by a written undertaking (承諾書) in Chinese dated 22 May 2022 (the “Undertaking”), the Defendant agreed in writing that:

(1)  upon repaying the loan and interest to the 2^nd Plaintiff, the profit would be shared equally, 50%-50%, with the 1^st Plaintiff;

(2)  if there were any error, the shares in Listco would belong entirely to the 1^st Plaintiff;

(3)  the 1^st Plaintiff would not bear any loss.

10.  The Undertaking does lend support to the Plaintiffs’ claims.

11.  By a loan agreement in Chinese dated 23 May 2022 (the “Loan Agreement”), the Defendant and the 2^nd Plaintiff (though signed by the 1^st Plaintiff) agreed that:

(1)  On the condition that the Defendant would assist the 2^nd Plaintiff to mortgage the Properties with the target loan amount of HK$11 million, the 2^nd Plaintiff agreed to lend HK$6 million to the Defendant and interest payment shall be borne by him;

(2)  The Defendant must do everything necessary, regardless of outcome of the investment, repay the 2^nd Plaintiff, HK$6 million and a further HK$1 million within 3 months or before 4 months.  The steps to be taken by the Defendant includes but is not limited to mortgaging his property situated in Ho Man Tin; and

(3)  the Defendant shall repay by 1 January 2023.

12.  It is thus submitted that by reason of parties’ common understanding on the Investment Scheme and the terms of the Undertaking, there is an implied term to the Loan Agreement that:

(1)  the loan will be applied exclusively for the purpose of acquiring the Listco shares on the 1^st Plaintiff’s behalf;

(2)  The Defendant will hold the Listco shares on trust for the 1^st Plaintiff and will transfer them to the 1^st Plaintiff;

(3)  The 1^st Plaintiff will be indemnified for any loss from the Investment Scheme.

13.  The 2^nd Plaintiff duly transferred the Funds to the 1^st Plaintiff’s HSBC account. 

14.  By a handwritten receipt in Chinese dated 1 August 2022, the Defendant confirmed that he had received HK$7.5 million in his account held at HSBC (the “Receipt”).  The reason why the Receipt refers to the Defendant having received HK$7.5 million was because it was mutually understood that the Defendant must pay HK$6.5 million by 1 January 2023 and, furthermore, a sum of HK$1 million.

15.  It is also submitted that the Receipt confirms that the fund is to be used to purchase shares in the Listco and all its rights belong to the 1^st Plaintiff.

16.  During or around 28 July 2022 to 3 August 2022, the Defendant told 1^st Plaintiff that he had used the Funds to purchase shares in the Listco through two securities companies namely Tiger Securities Asset Management Company Limited (“Tiger Securities”) and Zhongtai Financial International Limited (“Zhongtai”). 

17.  The Defendant orally assured the 1^st Plaintiff that he would instruct his stockbrokers to purchase the Listco shares at the price of HK$0.32 per shares.

18.  On 13 December 2022, the 1^st Plaintiff urged the Defendant and also asked Mr Yim, representatives from Tiger Securities to urge the Defendant to transfer the Listco shares to her.

19.  On 21 December 2022, the Defendant transferred 11,026,000 Listco shares to the 1^st Plaintiff’s account in Tiger Securities.

20.  On 23 December, the Defendant and the 1^st Plaintiff signed a memorandum confirming that 11,026,000 Listco shares have been transferred to the 1^st Plaintiff’s account in Tiger Securities.

21.  In mid-December 2022, the 1^st Plaintiff confronted the Defendant and demanded the immediate transfer of the remaining Listco shares to the 1^st Plaintiff but the Defendant refused. 

22.  It is further submitted that the Defendant admitted that he had induced the 1^st Plaintiff to provide him the Funds without any intention to repay.

23.  Pursuant to §4 of the Ex Parte Orders, the Defendant is obliged to inform the Plaintiffs the transaction of the Subject Shares.  However, the Defendant only produced a series of statements. 

24.  On the basis of the information so far available to them, the Plaintiffs have computed that:

(1)  The number of the Listco shares acquired with the Funds is 19,590,000;

(2)  The Subject Shares should be 8,564,000 (ie. 19,590,000 shares minus 11,026,000 shares which were transferred to the 1^st Plaintiff).  Of the 8,564,000 Listco shares only 1,914,000 Listco shares left with the Defendant.  In other words, 6,650,000 shares have been realised or transferred elsewhere; and

(3)  It is likely that the Defendant did not use all of the HK$6.5 million to acquire Listco shares.  The Misappropriated Sum is HK$2,045,052.17 and not HK$ l,688,000.

25.  The Defendant’s case is that: -

(1)  The Defendant requested and negotiated a personal loan for his own investment in the Listco shares from the 1^st Plaintiff which she sought the 2^nd Plaintiff’s help;

(2)  Various documents were signed, including an undertaking, a loan agreement (subsequently revised), a receipt (IOU), a memorandum and a note;

(3)  However, the Undertaking and the Receipt (IOU) were tampered with subsequently and words and sentences were inserted without the Defendant’s agreement after execution;

(4)  The 2^nd Plaintiff, through the 1^st Plaintiff, advanced HK$6.5 million to the Defendant, HK$6 million of which was advanced to the Defendant by the 2^nd Plaintiff as a personal loan to him and without any specific or exclusive purpose(s), in accordance with the Original and Revised Loan Agreement;

(5)  The remaining HK$500,000 was a repayment of sums owed to the Defendant by the 1^st Plaintiff and prepayment of future rent;

(6)  Upon the Defendant’s receipt of the HK$6.5 million, the entire sum of money belonged to the Defendant and he was free to use or apply the sum as he wished without any permission or authorization from the Plaintiffs;

(7)  All the Listco shares purchased from the said sum (or any part thereof) belong to the Defendant;

(8)  The Defendant had subsequent negotiation with the Plaintiffs and it was agreed that all the Defendant’s liabilities and obligations owed to the Plaintiffs would be fulfilled and discharged by transferring 11,026,000 Listco shares to 1^st Plaintiff. The Defendant duly transferred the said shares to the 1^st Plaintiff on 21 December 2022;

(9)  The Loan Agreement and any underlying transaction (as alleged or at all) were illegal and unenforceable.

C.  Analysis

26.  Having considered this matter carefully including studying the parties’ respective written and oral submissions, I am of the view that at this stage, this Court can fairly take the view that there are serious issues to be tried and the Plaintiffs have satisfied this Court that they have a good arguable case for the Ex Parte Orders to be continued until trial or further order of the Court.

27.  First, I am of the view that the contemporaneous documents show that prime facie, the Fund was advanced for a specific and exclusive purpose and not a simple loan transaction.  I note that the Undertaking and/or Receipt expressly acknowledge that all the rights in the Listco shares belong to the 1^st Plaintiff. This is not consistent with a simple loan transaction as the Defendant contests.

28.  Secondly, a total of 11 million Listco shares were actually transferred to the 1^st Plaintiff.  This sits well with the Investment Scheme and that the Listco Shares have to be transferred to the 1^st Plaintiff.

29.  If the transfer of 11 million Listco shares to the 1^st Plaintiff were meant to be a full and final settlement of the loan as alleged by the Defendant, then, first, there was no reason for the Defendant to discuss a further transfer of Listco shares to the 1^st Plaintiff, and secondly, one would have expected that the Defendant would obtain a document which evidences the said full and final settlement.

30.  The Defendant claims that the further transfer was so that the Defendant would pay off another debt due to the 1^st Plaintiff.  However, I agree that if the shares indeed belong to the Defendant then there was no reason for him to transfer 3 million shares to the 1^st Plaintiff.  At the time, the share price on 1 December 2022 was HK$0.52 per share.  This would mean the 3 million shares were worth HK$1,710,000.  I agree that the Defendant could have simply sold those shares and paid off the debt and ignored the 1^st Plaintiff completely.  The Defendant’s explanation on this specific issue is not entirely clear and logical.

31.  Thirdly, the Defendant in writing undertook that the Plaintiff would not suffer any loss.  This sits better with the Investment Scheme.  The Undertaking and Receipt confirm that the rights of the Listco shares belong to the 1^st Plaintiff.  If it were a simple loan agreement, I am not sure why the Undertaking was called for in the first place.

32.  This Court notes that the Defendant claims that the phrase in the Undertaking was inserted by the 1^st Plaintiff subsequently.  This is a very serious allegation of forgery.  The Defendant has not adduced any concrete evidence at this stage to prove the forgery.  I agree that this allegation is unparticularised and unsupported by evidence at this stage.  The Defendant might be able to adduce much more cogent evidence at the trial, but at this stage, there is not enough evidence for this Court to conclude that an act of forgery was committed.  

33.  I am of the view that there is a triable issue as to whether the Fund was transferred for a specific and exclusive purpose under the Investment Scheme and the Misappropriated Sum had been retained by the Defendant and not applied towards acquiring the Listco shares. 

34.  For the sake of completeness, the relevant legal principles in relation to a Quistclose trust are succinctly set out by Au-Yeung J. in Chen Kam Nga v Lee Ho Yin [2022] HKCFI 1359 at §59 and I should not repeat the same here.  The key is whether the money has to be used exclusively for a purpose and whether the recipient of the money has the power to freely dispose of it: see Twinsectra Ltd v Yardley [2002] 2 AC 164 at §§69, 73-74 per Lord Millett.  

35.  As this Court rules that there is good arguable case on claims based on a Quistclose trust, it follows that the Plaintiffs are entitled to a proprietary injunction.  I am of the view that the balance of convenience tips in favour of continuing the proprietary injunction.

36.  First, the Defendant pledged some of the Listco shares.  The Defendant has not explained where the monies had been applied.  I am of the view that it is prudent to preserve the integrity of the assets in the interim period pending the parties’ resolution of the disputed issues in this case.

37.  Secondly, this Court notes that the Defendant has incurred substantial debts.  The Plaintiffs have produced a flyer demanding money from the Defendant.  Public record confirms that the Defendant has mortgaged a property unit in Mantin Heights in Hong Kong which he uses as his address. 

38.  The 1^st Plaintiff also relies on the fact that the Defendant has borrowed HK$12 million from the Government of Hong Kong SAR and, importantly, that he bragged about plans to evade repayment.

39.  Thirdly, the Defendant does not appear to have any credible business operation in Hong Kong and there is no suggestion that he will be unable to operate his business should he be compelled to set aside the Subject Shares (or its proceeds).  The Defendant could have but chosen not to adduce any financial information: see Tiger Resort Asia Ltd v Kazuo Okada [2019] HKCFI 1415 at §42(h) per DHCJ K. Yeung (as he then was).

40.  Finally, I am of the view that there is also justifiable risk of dissipation of assets on the following grounds:

(1)  The Defendant does not carry on any legitimate business and is expose to debts as evidenced from the land search result.  He claims he is an insurance broker with steady “commission /salary” which means he either has commission or salary but not both.  I accept the Plaintiffs’ submission that such assertion is bare and importantly the Defendant chose not to adduce any financial information and documentary evidence to support his assertion.  

(2)  The Listco shares are freely tradable on the Stock Exchange of Hong Kong and could be readily realised and indeed much of the Listco shares had been realised in a very short span of time.  

(3)  The Defendant, despite being afforded the opportunity, chose not to provide a full account of how he invested with the Fund and the whereabouts of the portion of the Fund which were not invested.  The Plaintiffs are left to guesswork on the quantum of their claims.

D.    The Defendant’s application to discharge the Ex Parte Orders

41.  The Defendant first relies on material non-disclosure on the part of the Plaintiffs.  It is first submitted that the Plaintiffs have not disclosed the Original Loan Agreement and only the Revised Loan Agreement was disclosed.  The argument is that had the Original Loan Agreement been disclosed, the Defendant could have run a case of illegality in respect of the high interest rates charged under the Original Loan Agreement and the Revised Loan Agreement pursuant to section 24 of the Money Lenders Ordinance Cap. 163 (the “MLO”) and the doctrine of clean hands.

42.  I do not consider the non-disclosure of the Original Agreement as material.  The Plaintiffs’ case has always been that as between the 2^nd Plaintiff and the Defendant, the Defendant has to repay the loan.

43.  The Plaintiffs further submitted that there was no interest stipulated under the Loan Agreement.  The HK$1 million is merely reward money to the 2^nd Plaintiff.  It is the Plaintiffs’ case that in order to qualify as “interest” under the MLO, the amount is not required to be paid or payable to the lender or its agent.  It could be paid to someone else so long as it is “paid or payable in consideration of or otherwise in respect of a loan”.  Where there is no evidence of any involvement of the lender regarding the monies defrauded by the intermediary and nothing to link the payment by the borrower with the loan made by the lender, that could be difficult to establish: Gain Wealth Global Credit & Investment Ltd v Chan Suk Fong[2020] 4 HKLRD 831 at §55 per Kwan VP.  Hence, it is submitted that the HK$1 million is not consideration for the loan but rather an award and expression of gratitude to the 2^nd Plaintiff for exposing herself to liability.

44.  Secondly, it is submitted that even if it is arguable at this stage that the HK$1 million reward money can be classified as interest under the MLO, it is not a foregone conclusion that the amount falls foul of section 24 of the MLO.  Section 24 of the MLO is only concerned with interest rate per annum.  The prohibited rate was, at the material time, 60%.[1]

(1)  Section 24(1) states “Any person (whether a money lender or not) who lends or offers to lend money at an effective rate of interest which exceeds 60% per cent per annum commits an offence”.

(2)  InKwok Ying Lung v Ko Chi Hung[2001] 3 HKC 480, the loan was for HK$1.1 million with an interest of HK$55,000 per month.  The loan was repayable in 6 months (see 483H).  The Court confirmed that the effective rate of interest per annum was 60%.  This is because 55,000 divided 1.1 million is 5% per month.  The 5% multiplied by 12 months equals 60% per annum.  It is clear that the fact the loan was payable within 6 months did not impact that calculation.  

(3)  In the present case, there can be no contravention of the MLO because:

(a)  by dividing the total actual interest (ie. HK$1 million) with the amount actually lent (i.e. HK$6.5 million) would arrive at an effective rate of interest of 15.3 8% per annum;

(b)  alternatively, since the Defendant alleges the principal was only HK$6 million (which is denied), the effective rate of interest would be 16.67% per annum.

45.  I am of the view that this Court needs not resolve this issue at this stage save it suffices for this Court to note that there are serious issues to be tried and as the Plaintiffs’ case is that the Fund was deployed for the Investment Scheme and the Loan Agreement was between the 2^nd Plaintiff and the Defendant, in my view, the failure to raise a MLO defence at the ex parte stage is not material.  The Plaintiffs could not have envisaged that the Defendant would take this MLO point.

46.  Secondly, I do not consider that the failure to disclose the amount of the mortgage interest at the ex parte stage is material.  The amount of the mortgage interest is nothing extraordinary.  The Defendant submitted that this mortgage interest should be calculated with HK$1 million.  However, it is the Plaintiffs’ case that the HK$1 million is not interest.  This is a matter to be determined at the trial.  I am of the view that the Plaintiffs could not be blamed for foreseeing what the Defendant’s case on the MLO might be.

47.  Thirdly, the Defendant relies on the suspicious features of the Undertaking and Receipt (IOU).  It is said that the Undertaking was tampered.  The font size and the spacing of the disputed sentence “如有差錯（天弓集团428股票）股票一切权力屬高冬夢” was clearly different from other parts of the document.

48.  It is also said that the Receipt (IOU) was also tampered.  The font size, spacing and the indentation of the disputed sentence “天弓集团428股票所有权利屬高冬夢。” was clearly different from other parts of the document.  Further, the phrase “特此立據” (in witness hereof) is usually placed at the very end of a document, however, the disputed sentence was put after that phrase, this is unusual and is a red-flag for non-existence of the disputed sentence on execution.  A further unusual feature is that for all the three lines preceding the phrase “特此立據”, there was no punctuation mark, but there were suddenly punctuation marks after that phrase.

49.  Further, the font sizes of the words in the disputed sentences were smaller when compared to other words of the relevant document.  The spacing between the disputed sentence and the lines above and below were narrower.  The words within the disputed sentence also had smaller spacing, making the words look much tighter.  This may have been done to facilitate the subsequent insertion of the disputed sentences in between the lines of the relevant original documents.

50.  No doubt, these are very serious allegations which the Court could not have resolved at this stage and it is not something that one would have expected an applicant to make disclosure at the ex parte stage.

51.  Fourthly, the Defendant relies on some WeChat extracts. However, the extracts could be read to mean that the 2^nd Plaintiff was referring to the interest payable by her.  It is difficult at this stage to conclude that the extracts are capable of corroborating the Defendant’s case that the Funds were given as a loan and he was free to use that sum as he saw fit. 

52.  Fifthly, it is submitted that the Plaintiffs failed to disclose that the 1^st Plaintiff had borrowed not less than HK$290,000 from the Defendant and that Special Manufacturing Company (for which the 1^st Plaintiff was one of the two partners and was personally liable for its debts) rented the Mantin Heights Units from the Defendant and was in default of rent payment.  The total amount of rent up to April 2023 was HK$364,000 in arrears (and thereafter at HK$23,500 per month).  With respect, I do not see the relevance of such facts.  They are not related to the Plaintiffs’ claims in the present case.  The 1^st Plaintiff’s case is that she does not owe any debts to the Defendant and the issue of the outstanding arrears in respect of the Tenancy Agreement is a dispute between the Defendant and Special Manufacturing Company.  I agree with the Plaintiffs that it is not clear as to how such claims could be used to set off the Defendant’s liabilities vis-à-vis the Plaintiffs.  There is no right of set-off because the dispute pertains to different parties.

53.  Sixthly, the Defendant claims that part of the Funds in the sum of HK$500,000 was repayment for an earlier debt owed to him.  I am of the view that there are merits in the Plaintiffs’ submission that if that were the case the Undertaking and Loan Agreement would have referred to it. Nonetheless, again this is a matter to be determined at the trial.

54.  Seventhly, as far as the note dated 6 January 2022 (the “January Note”), the Plaintiffs deny any knowledge or assent to the January Note.  The Plaintiffs say it is a forgery and so it was not something they could have brought to the Court’s attention.  There is force in this submission.

55.  Finally, the Defendant submits that the Plaintiffs’ case defies commercial sense.  The Defendant borrowed HK$6.5 million, the shares he purchased using such funds would belong to the Plaintiffs, and he would also be under the obligation to make payment of HK$7.5 million to the 2^nd Plaintiff and be responsible for the 2^nd Plaintiffs’ mortgage interest payment. There is no reason for the Defendant or any person with sound-mind to agree to such a plan or Investment Scheme as it basically gifted the 1^st Plaintiff (in respect of the shares) and the 2^nd Defendant (in respect of the further HK$1 million) for no apparent reason.  The Defendant could not derive any financial or practical benefit from such a plan or scheme.  Hence, it is submitted that the Plaintiffs’ case completely defies commercial sense and is unbelievable.

56.  However, insofar as the 2^nd Plaintiff is concerned, she loaned the Fund and she should get back her fund with an award of HK$1 million and in the meantime, the Defendant were to take care of the mortgage payments.  This is not commercial impossible.  As far as the 1^st Plaintiff is concerned, her case is that the Fund would be used to purchase the Listco shares to which she and the Defendant were entitled to the profit on a 50:50 basis but in case of any error and as a matter of agreement, she were to have proprietary interest in the subject shares pending the sale of the same.  This is also not commercially unviable.  At the end of the day, it depends on how the parties struck their deals.  I cannot say at this stage that the Plaintiffs’ case is definitely commercially unreal and/or unbelievable.

57.  Ninthly, the Defendant submits that the Plaintiffs are not good enough for the undertaking as to damages.  However, there is no application for fortification before this Court.  In any event, it is not disputed that the 1^st Plaintiff obtained 11 million of the Listco shares.

58.  Finally, for the sake of completeness, this Court would have re-granted the Ex Parte Orders in order to preserve the status quo.  But there is no need for such a re-grant as this Court finds that there is no material non-disclosure and the status quo should be preserved.

E.  Disposition

59.  For all the reasons stated above, I make an order in terms of the Draft Orders as submitted by the Plaintiffs and continue the Ex Parte Orders until trial or further order of the Court.

60.  As far as costs are concerned, costs follow the event.  The Defendant is to pay the costs of and occasioned by the Summons forthwith to the Plaintiffs, on a party to party basis, if not agreed.  This costs order nisi will be made absolute within 14 days from the date thereof unless the parties make an application to vary the same within the 14-days period. 

61.  Finally, this Court thanks counsel for both the Plaintiffs and the Defendant for their helpful assistance.