THE INCORPORATED OWNERS OF HONG YUEN COURT v. DUGAR, SAJJAN AND DUGAR, MANU

LDBM 89 & 90 /2012
(Heard together)

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

BUILDING MANAGEMENT APPLICATION NO. 89 OF 2012

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DECISION

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1.  The applicant is the Incorporated Owners of Hong Yuen Court. The applicant is taking enforcement action in these cases against alleged unauthorized structures in Hong Yuen Court. The difference between these cases is that LDBM 89/2012is in English to cater for owners speaking or likely to speak English whereas LDBM 90/2012is in Chinese to cater for owners speaking or likely to speak Chinese.

2.  The 2^nd respondent in LDBM 89/2012and the 6^th and 7^th respondents in LDBM 90/2012are owners of residential units on the 1/F of Hong Yuen Court.  I shall hereinafter refer them collectively as the respondents. 

3.  It is the applicant’s case that there are unauthorised structures at or in the common area near the respondents’ premises and the applicantis applying for an injunction to oblige the respondents to remove those structures.  The applications are opposed by the respondents.

4.  The applicant now wants to amend its pleadings.[1] The proposed amendments may be grouped under 3 headings:

(a) to introduce a new cause of action based on breach of the deed of mutual covenants dated 7 August 1980 relating to Hong Yuen Court (“the 1980 DMC”);

(b) to include other unauthorized structures not hitherto pleaded; and

(c) other amendments.

5.  The respondents object to the first two heads but are otherwise agreeable to the other amendments.  The objections taken may be crudely summarised as follows:

(1) lateness of the amendment application;

(2) the 1980 DMC has expired; and

(3) the applicant is estopped from pleading additional structures.

Discussion

6.  There is no dispute on the law applicable to amendment of pleadings, which is neatly summarized in Hong Kong Civil Procedure 2013. 

7.  I shall deal with objections (1) and (3) before coming to (2) which is the main argument between the parties.

(1)  Lateness

8.  On lateness, Mr Ng (solicitor for the respondents) complains that there has been a delay of more than a year as both cases were commenced on 15 March 2012 but the applicant only applied for amendment in May 2013.

9.  As I have mentioned above, these are enforcement actions taken by the applicant in respect of alleged unauthorised structures within Hong Yuen Court.  Other owners (mostly unrepresented) were involved when the cases commenced.  The parties then took time to negotiate and mediate for a settlement.  As a result, the applicant has settled with some owners and discontinued its claim against them leaving the respondents.  Significantly for the purpose of this discussion, the proceedings between the applicant and the respondents were stayed between July and November 2012 to facilitate mediation.  This accounts for the slow progress in these cases.

10.  Having regard to the general law on amendment and the circumstances of these cases, Mr Ng has realistically(and correctly in my view) accepted that delayper se is not sufficient to bar the applicant from amending his pleadings.  He isasking me to bear in mind the timing of the amendment application in the overall assessment, and that I will do. 

(3) Estoppel

11.  This relates to the applicant’s wish to plead additional structures against the respondents. 

12.  The circumstances pertaining to theobjection are set out in paragraphs 7 to 18 of the affirmation filed by the respondents.  Essentially, the respondents complain that the applicant had in the past repeatedly represented that it had no intention to bring in other unauthorised structures[2] and that, according to Mr Ng, constitutes unequivocal abandonment ofsuch claim.  As a fallback, Mr Ng asks me to exercise the discretion to disallow the amendment as he can infer bad faith from the amendment application. 

13.  It is true that the applicanthas said on various occasions that it had no intention to plead more structures.  The applicant explains that it was then acting under legal advice to leave the enforcement actions against those structures to the Buildings Department. 

14.  In my view, the applicant has not abandoned its rights to enforce against those additional structures.  Far from condoning (or abandoning) them, the applicant has all along insisted onenforcement albeit they would initially leave it to the Government to take action. 

15.  I am quite unable to discern bad faith on the part of the applicant.  It was not unreasonable for the applicant to adopt a wait and see approach initially.  Whether it is the applicant or the Government who is taking action, the applicant’s stance is to rid Hong Yuen Court of unauthorised structures.  If that could be achieved by the Government, the applicant would not have to expend owners’ contributions on any enforcement action.  Despite initial reservations, the applicant decided to adopt the advice of its then solicitors. 

16.  The applicant has now engaged another firm of solicitors and their new legal advisers have advised them to pursue an amendment to include those additional structures.  If the claims as presently pleaded (ie without the additional structures) proceed to trial and thereafter the applicant commences a new action in respect of those additional structures, then there may be a cause for the respondents to complain based on res judicata in the wider sense.  There is, in my view, nothing unusual in the advice to change tack.

17.  Mr Ng submits that his clients might have adopted a different tactic if those additional structures were included in the first place without specifying how the conduct of the defence might be different.  The applicant is agreeable to pay the costs of and occasioned by the amendment and that should compensate the respondents in terms of any legal costs thrown away as a result of the applicant’s change of tack. There is no suggestion that the respondents will suffer any prejudice which cannot be compensated by costs if the amendment is allowed. 

18.  I do not think there is any substance in the objection based on estoppel.

(2)  1980 DMC

19.  The main argument between the parties turns on whether the 1980 DMC has expired or been discharged.

20.  According to the present pleadings, the applicant is seeking to enforce the covenants in the deed of mutual covenants dated 3 September 1993 relating to Hong Yuen Court (“the 1993 DMC”) to oblige the respondents to remove thealleged unauthorised structures.  The respondents have responded by alleging that some of theunauthorised structures may have pre-dated the 1993 DMC.  This has led to the applicant’s amendment application to plead reliance on an earlier deed of mutual covenants, namely, the 1980 DMC.

21.  The respondents argue that the 1980 DMC has expired and is not binding on them.  The applicant disagrees. 

22.  It is trite that the court will not allow useless amendments: see Hong Kong Civil Procedure, §20/8/24.  If the respondents are correct, then there is no point in the applicant invoking the 1980 DMC.

23.  On 16 July 2013 when the argument first came on, Mr Ho (the applicant’s counsel) took a number of points in his attempt to argue that the 1980 DMC was still valid and subsisting.  He submitted that the 1980 DMC was applicable by reason of:

(a) privity of contract and privity of estate;

(b) section 35(1) and Part I(B) of the First Schedule of the Conveyancing and Property Ordinance;

(c) the fact that the 1993 DMC did not expressly supersede the 1980 DMC; and

(d) section 15 of the Government Leases Ordinance.

24.  As the facts essential to the argument was somewhat muddled at that time, I adjourned the argument for the parties to clarify.  I further invited submission on whether the 1980 DMC had been discharged by reason of unity of possession and drew parties’ attention to the Court of Appeal decision in Wong Kam-lan v Well Win Investment Limited [1996] 2 HKLR 96.

25.  I commend both sides for their effort in agreeing the following facts to facilitate the argument:

(a) Hong Yuen Court was built in 1980 and has not been redeveloped or rebuilt at all material times since then.

(b) The land on which Hong Yuen Court was built was originally held under 4 Government leases (collectively called “the Old Government Leases”).

(c) Each of the Old Government Leases had a lease term of 75 years commencing on 25 June 1915. None of the Old Government Leases contained a right of renewal for a further term.

(d) On 7 August 1980, the developer entered into the 1980 DMC with the first purchaser who acquired from the developer undivided shares in the leasehold estate held under the Old Government Leases.

(e) The Old Government Leases expired on 24 June 1990.

(f) On 28 June 1993, the Government granted a new Government lease with a new lot number respecting Hong Yuen Court (“the New Government Lease”) to Financial Secretary Incorporated (“FSI”). 

(g) The Old Government Leases appear to cover a larger area of land than the New Government Lease.

(h) On 3 September 1993, FSI entered into the 1993 DMC with the first assignees who acquired from FSI undivided shares in the leasehold estate held under the New Government Lease.

(i) FSI thereafter assigned the undivided shares in the leasehold estate held under the New Government Lease to individual owners at nil consideration subject to and with the benefit of the 1993 DMC.

(j) The same number of shares was assigned to each residential unit in Hong Yuen Court under the 1980 DMC and the 1993 DMC, save for the basement for which 70 shares were assigned under the 1980 DMC whereas 2 shares were assigned to each of the 35 car parking spaces in the basement under the 1993 DMC.

(k) At least one of the units in Hong Yuen Court (ie Flat A1 on 14/F) was assigned by FSI to a person who was not the owner of the corresponding unit before the New Government Lease was granted.

26.  When the argument resumed on 28 August 2013, Mr Ho disavowed all his previous submissions and instead argued that Hong Yuen Court constituted a scheme of development so much so that the covenants in the 1980 DMC had only been suspended (as opposed to discharged) when the whole of Hong Yuen Court was reverted to the single ownership of the Government upon the expiry of the Old Government Leases.  When the units were assigned to individual owners under the New Government Lease, so he argued, the covenants in the 1980 DMC re-applied.

27.  Mr Ho pointed out at the hearing that the 1980 DMC had to apply or otherwise there would be a vacuum between the expiry of the Old Government Leases and the grant of the New Government Lease affecting the rights and liabilities of the owners of Hong Yuen Court inter se. 

28.  On the part of the respondents, Mr Lui (who appeared with Mr Ng at the adjourned hearing to represent the respondents) argued that upon the expiry of the Old Government Leases, the leasehold estate upon which the 1980 DMC was founded ceased to exist and so the 1980 DMC had expired.

29.  He submitted that absurdities would ensue if the 1980 DMC were still binding on the current owners of Hong Yuen Court.  For example:

(a) Under section 13 of the Conveyancing and Property Ordinance, a purchaser of a unit in Hong Yuen Court would be expected to check title of the unit up to the New Government Lease.  If the applicant were correct, the unit would be subject to an encumbrance (ie the 1980 DMC) which pre-dated the ultimate root of the title (ie the New Government Lease).

(b) The 1980 DMC was not registered in the current record at the Land Registry of the units in Hong Yuen Court arranged in accordance with the new lot number.  A person dealing with the land (eg a bank granting a loan on the security of a charge over an undivided share in the New Government Lease) could find himself unwittingly bound by a document (ie the 1980 DMC) which could not be detected from land searches.

(c) There were inconsistencies between the 1980 DMC and the 1993 DMC so much so that they could not both stand.

30.  I have given very careful thoughts to the submissions and, in the end, I think the respondents are correct. 

31.  It is important to appreciate that the Old Government Leases have not been renewed and the New Government Lease is granted in respect of a different (somewhat smaller) land.  So, section 42(3) of the Conveyancing and Property Ordinance is not engaged. [3]

32.  In my view, the law is correctly summarised in §230.482 of Halsbury’s Laws of Hong Kong although no authority is provided for that proposition:

“When the Government lease expires, and it is not renewed, the deed of mutual covenant will automatically terminate.”

33.  This is what in fact happened here. 

(a)   There is no mentioning of the 1980 DMC in the New Government Lease made between the Government and FSI.

(b)   The respondents have placed before me for reference the proforma assignment whereby FSI assigned the undivided shares relating to Flat B1 (including the adjacent flat roof thereof) on the 1/F of Hong Yuen Court to the owner.  The assignment is expressed to be subject to and with the benefit of the 1993 DMC[4] but is otherwise silent on the 1980 DMC.

(c)    The 1993 DMC is complete in itself and is apparently not predicated on the 1980 DMC.  They cover more or less the same subject matters:

	1980 DMC	1993 DMC
Allocation of the undivided shares in Hong Yuen Court	Third Schedule	First Schedule
Sole and exclusive right to use certain part of Hong Yuen Court, and the right to assign such part without reference to other owners	Clauses 1 and 9	Clauses 1 and 32
Rights as between owners in relation to the common parts of Hong Yuen Court	Clauses 2 and 3	Clauses 2 and 3
Constitution of a Management Committee and the incorporation of the owners	Clause 5	Clauses 4 and 5
Powers of the Management Committee and owners’ corporation	Clause 6	Clause 6
Owners’ covenants, eg payment of management contribution, restriction of user, duty to maintain part solely and exclusively used by an owner, etc	Clauses 4, 7 and 8	Clauses 18-24, 26-31, 34-35 and 37-40
Service of notices	Clause 11	Clause 36
Expiry of the DMC	Clauses 3, 10 and 12	Clauses 1 and 33
Interpretation of the DMC	Clause 13	Clauses 42 and 43
Appointment, powers and duties of the manager	Clause 14	Clauses 6, 8, 9-17, 25 and 41

But they provide differently and there are obvious inconsistencies.  For example:

(i)      The 1980 DMC allocated 70 undivided shares to the owner(s) of the basement, whereas the 1993 DMC now designates 35 car parking spaces in the basement with 2 shares allocated to each car parking space.

(ii)   The 1993 DMC required the first assignees (ie the owners of Flat A2 on 12/F) to convene a meeting of the owners to appoint a Management Committee for the management and administration of Hong Yuen Court.  This would not have been necessary if the Management Committee (and the owners’ corporation) provided in the 1980 DMC had still been functional.

(iii)   Under the 1980 DMC, owners were required to pay an amount equivalent to 5 months’ contributions as management foundation fund and security deposit.  The 1993 DMC now provides that each owner shall deposit a sum not more than 25% of the first year budgeted management expenses as security against his liability under the deed.

(iv)   Owners were required by the 1980 DMC to pay a surcharge of 5% per quarter for any sum due under the deed but unpaid.  The 1993 DMC now provides that all amounts due but unpaid will attract an interest at the rate of 1% per month.

(v)   The appointment of the manager might be terminated under the 1980 DMC by a 75% majority of the owners, whereas the 1993 DMC only requires a simple majority of the owners to terminate the appointment.

34.  The respondents have placed before me the land search records of the respondents’ units based on the new lot number.[5] They all commenced with FSI being the first owner and contain the registration of the 1993 DMC as an incumbrance.  There is no mentioning of the 1980 DMC. 

35.  The respondents have also provided the land search records based on the old lot numbers for comparison.  One can see the registration of the 1980 DMC there, but the records carry the remark that the Crown lease has expired and new Government lease was issued under a new lot number. 

36.  Significantly, section 41(9) of the Conveyancing and Property Ordinance provides that:

“A covenant in an instrument registered in the Land Registry under the Land Registration Ordinance (Cap 128) against the land affected by the covenant shall bind the successors in title of the covenantor and the persons deriving under or through him or them whether or not they had notice of the covenant.” (emphasis added)

37.  According to the proforma assignment, the current owners of Hong Yuen Court hold their interests “for all the residue now to come and unexpired of the said term created by the [New Government Lease]”.[6] Since the 1980 DMC has not been registered against the land the subject matter of the New Government Lease, the owners are not bound by the covenants contained therein. 

38.  The 6^th and 7^th respondents in LDBM 90/2012first became owners of their respective unit on 15 December 1999 and 22 March 2010 respectively.  In other words, they came into the picture after the expiry of the Old Government Leases and have never been subjected to the 1980 DMC.  There is nothing to link them to the 1980 DMC.

39.  The 2^nd respondent in LDBM 89/2012is in a somewhat different position.  Before he was assigned his unit by FSI on 8 December 1993, he had been an owner of the same unit under the Old Government Leases since 19 February 1987.  Would that make a difference?

40.  In my view, the 1980 DMC has already expired and should have no effect.

41.  First, there are provisions in the 1980 DMC providing for its own demise.

42.  The parties to the 1980 DMC (and their successors-in-title) granted to each other the sole and exclusive use of certain parts of Hong Yuen Court under clause 1.  They further granted to each other easements rights and privileges in relation to the common parts under clause 2.  Clause 3 then provided that:

“Subject to Clause 10 hereof the respective grants hereinbefore contained shall in each case be for the respective residues of the terms of years more particularly described in the Second Schedule and the regrant thereof (if applicable).” (emphasis added)

The terms of years described in the Second Schedule were that of the Old Government Leases, ie 75 years from 25 June 1915.  It is common ground that the Old Government Leases came to an end on 24 June 1990 and there has not been a re-grant.  Thus, the mutual grants contained in clauses 1 and 2, which were essential to the co-ownership of Hong Yuen Court under the Old Government Leases, have expired in accordance with clause 3.

43.  Furthermore, clause 12 provided that:

“The mutual covenants herein contained are intended to run and shall run with the said land or the interest therein of the parties hereto both as the benefit and burden of such covenants and the Law of Property (Enforcement of Covenants) Ordinance and the said Ordinance [ie the Multi-Storey Buildings (Owners Incorporation) Ordinance] together with all legislative amendment or modification or substitution thereof for the time being in force shall apply to this Deed provided that if for any reason any owner shall cease to have any share or interest in the said land and the said building he shall not be responsible for any liabilities arising in respect thereof at any time thereafter.” (emphasis added)

So, the covenants contained in the 1980 DMC were meant to run “with the land or the interest therein” which, again, is a reference to the Old Government Leases which have expired.

44.  The respondents have also provided for my reference the assignment dated 19 February 1987 whereby the 2^nd respondent in LDBM 89/2012 was first assigned the interest in her unit.  It is clear from that assignment that the interest she then acquired was limited: “To HOLD the same … for the residue of the terms of years created by the Crown Lease referred to in the Schedule” (emphasis added) and the Schedule again referred to the Old Government Leases.  Upon the expiry of the Old Government Leases, she ceased to have any interest in the land the subject matter of the Old Government Leases and she would not thereafter be responsible for any liabilities arising from the 1980 DMC as provided in clause 12.[7]

45.  Secondly, I do not think the burden of the covenants in the 1980 DMC has passed to the respondents as a matter of law.

46.  The Court of Final Appeal has observed in Sky Heart Ltd v Lee Hysan Co Ltd (1997-98) 1 HKCFAR 318 at 338G-340A that:

“Section 41 [of the Conveyancing and Property Ordinance] represents the … attempt of the legislature to adapt the common law and equitable rules concerning covenants which affect land to the special needs of Hong Kong conveyancing … A covenant which satisfies the terms of s.41(1) and (2) will run with the land in accordance with s.41(3), notwithstanding any rule of law or equity. In such a case, it is unnecessary to go beyond the terms of the Ordinance and the fact that for some other reason the covenant might not have run with the land at common law or equity is irrelevant. The section is therefore a partial codification of the law. It is a codification because, so far as it goes, it is complete in itself but partial because it does not prevent a covenant falling outside its terms from running with the land under the old common law and equitable rules.”

47.  Whether the applicant is relying on section 41(3) or the old common law and equitable rules, it seeks to argue that the burden of the covenants in the 1980 DMC has run with the land so much so that the respondents should be bound.  It is important to appreciate that we are dealing with a different leasehold interest under the Old Government Leases and the New Government Lease.  There is simply no mechanism whereby a covenant relating to one land may be transferred to and run with a different land.

48.  In my view, it was wise for Mr Ho not to pursue his previous submissions.

(a)   The respondents were not party to the 1980 DMC (see the First Column of the First Schedule thereto) and there is no privity of contract.  As the leasehold interests under the Old Government Leases and the New Government Lease are different, there cannot be privity of estate either.

(b)   Section 35(1) and Part I(B) of the First Schedule of the Conveyancing and Property Ordinance will not assist the applicant.  Section 35(1)(a) provides that:

“There shall be implied in any assignment of the whole of the interest in land held under a Government lease, the covenant by a person who assigns, and the covenant by a person to whom an assignment is made, mentioned in Part I of the First Schedule;”

        and Part I(b) of the First Schedule provides:

“That the assignee and any person deriving title under the assignee shall at all times from the date of the assignment or other date therein stated pay the Government rent or as the case may be the apportioned Government rent and observe and perform all the covenants (other than the covenant to pay the whole of the Government rent if the Government rent has been apportioned) agreements and conditions contained in the Government lease and any Deed of Mutual Covenant and on the part of the lessee to be observed and performed so far as the same relate to the land assigned.”

The above only operate to imply into the assignments from which the respondents derive their title respecting their unit (insofar as it has not been expressly provided for) the covenants contained in the New Government Lease and the 1993 DMC.  They do not incorporate the 1980 DMC into the assignments.

(c)   The quotation from Halsbury’s Laws of Hong Kong and the reasons proffered above explain why there is no need to make any reference to the 1980 DMC in the 1993 DMC.

(d)   The Government Leases Ordinance does not in fact apply (see the scope of application under section 3 thereof).

49.  Mr Ho’s latest argument is apparently prompted by the following judgment of Liu JA in Wong Kam-lan:

“Further, assume for the moment that the archaic doctrine of seisin is equally applicable to persons other than a freeholder such as leaseholders (see p. 45 the Law of Real Property, Megarry & Wade 5th edn.), by what is known as unity of seisin ‘a restrictive covenant will be discharged when a person becomes entitled to both the dominant and servient lands to which it relates’. See p. 640 Cheshire and Burn's Modern Law of Real Property, 15 edn. The Privy Council expressed the view that in a building scheme, unity of seisin would only suspend a restrictive covenant within the particular area of unity, to be revived on severance. See Texaco Antilles Ltd. v. Kernochan [1973] AC 609, PC at p. 626 B/C - C/D. However, Miss Lam for the plaintiff is at pains to direct our attention to the premise on which this view as articulated by Lord Cross of Chelsea in delivering the judgment of the Board, was based viz. that provided ‘the whole (development) area has never at any time come into common ownership’. Even if the doctrine of seisin should apply to leasehold interests, Texaco affords an illustration that the doctrine would not operate in a development scheme with full rigour. Unity is often spoken of in terms of fusion of the servient tenement with the dominant tenement. By the provisions in the DMC, particularly the definitions of ‘Owner(s)’ and ‘Second Owner's Unit’ in its clause (1), the defendant as developer and Madam Chau as the first purchaser were clearly made tenants in common of all the 214 undivided parts or shares of the building and land, with Madam Chau holding 15/214ths parts or shares and the defendant 199/214ths parts or shares of every speck of dirt in the property. Despite the variation in the ratio of shares in the undivided estate and their respective exclusive right of user, both parties were each entitled to the entirety. For every integral part, the defendant stood to hold 199/214ths parts or shares and Madam Chau 15/214ths. In other words, under the DMC the dominant and servient lands over that same property were concurrently enjoyed by each in ownership and possession. That was the condition which the DMC had created and it is inconceivable that the DMC was capable of being destroyed by the defendant gaining 15/214ths parts or shares more but with the same wholesome entitlement to the same land and building as before in its capacity of a tenant in common. It would appear therefore that a deed of mutual covenant in a multi-storeyed development with respective owners each holding a ratio of the undivided estate as tenants in common would not be extinguished by any one tenant in common becoming thereafter entitled to all the undivided shares in the property.”

50.  Mr Lui has expressed doubts on the above but I do not need to deal with his queries.  I agree with him that we are dealing with a wholly different scenario and Wong Kam-lan is not relevant:

“In the present case, the Land simply reverted to the Government as landlord after the expiry of the original Government leases. The Government was never a party to the 1980 DMC, which was only a contract inter se between the individual owners who derived title from the developer. There was thus no question of the Land having come into the common ownership of the covenantors and the covenantees to the 1980 DMC, and the issue of unity of ownership discharging a covenant did not arise.”

51.  Since we are not dealing with the twilight between the Government leases, the problem identified by Mr Ho does not arise for determination.  Suffice it for me to note that there would still be a vacuum even if Mr Ho were correct that the 1980 DMC had been suspended and was only re-engaged when FSI assigned the units back to the owners.

52.  In the end, I think the respondents are correct in their final analysis:

“Therefore, in the present case, it is clear that the 1980 DMC has been extinguished when the original Government leases expired on 24 June 1990. This is not because of unity of ownership (or any supposed exception to that rule when applied to a scheme of development) upon the expiry of the original Government leases. This is because the 1980 DMC was only a contract among the tenants in common of the original Government leases, and those tenants could not create an interest bigger than what they had and those covenants among the tenants could not bind the reversioner. The current owners derived their title from Financial Secretary Incorporated who in turn derived its title in 1993 from the Government under the new Government lease. The new Government lease is not encumbered by the 1980 DMC. Therefore all owners (or mortgagees etc) who derived their title from the new Government lease are not subject to the 1980 DMC.”

Conclusion

53.  By the foregoing analysis, it is futile for the applicant to attempt to invoke the 1980 DMC in these cases and any proposed amendment relating to the 1980 DMC should be disallowed.  There is no merit in the other objections and the respondents are otherwise not objecting to the amendment. 

54.  For the above reasons, I make the following orders:

(1)   Leave be granted to the applicant to re-amend its Amended Notice of Application in LDBM 89/2012 and to amend its Notice of Application in LDBM 90/2012 as per the draft attached to the respective summons, save that the proposed amendment relating to the 1980 DMC be disallowed.

(2)   The Applicant do file and serve the amended pleadings within 14 days from the date of handing down of this decision.

(3)   There be leave to the respondents to amend their respective Notice of Opposition, if so advised, within 28 days thereafter.

(4)   There be leave to the applicant to amend their replies, if any, within 14 days thereafter.

55.  As for costs, the applicant is offering to pay for the costs of and occasioned by the amendment. The main argument was on the 1980 DMC and the respondents have succeeded in their objection.  Not much time was spent on the argument on lateness and estoppel.  I take the view that the respondents should be entitled to the costs of the entire argument.  I therefore order that the costs of and occasioned by the amendment and the costs of the argument (including the costs of both hearings) be to the respondents in any event.

56.  It remains for me to thank both sides for their thoughtful submissions.