MAK PUI KI V. HO WING HA

HCMP 898/2020

[2020] HKCFI 2705

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 898 OF 2020

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J U D G M E N T

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1.  By an Originating Summons filed on 23 June 2020 (“the OS”), the plaintiff seeks a determination from the court on the questions arising out of a provisional sale and purchase agreement (“the PSPA”) between the plaintiff as purchaser (“P”) and the defendant as vendor (“V”) in respect of a property known as Flat No 17 on the 6^th Floor of Chung Yew Building, No 75 Kok Cheung Street, Kowloon (“the Property”). The application is made pursuant to s.12 of the Conveyancing and Property Ordinance (“CPO”).

2.  P and V have agreed that the OS be determined on the papers without an oral hearing.  The parties have provided me written submissions in accordance with the directions given by the court.  I have considered all the written submissions.

3.  Originally, P was focusing on the following 3 complaints against V[1]:

(1)  the requisition on the possible severance of the joint tenancy in the Property (then held by one Mr Lau Yiu Woon (“Lau”) and one Madam Chan Lai Sheung (“Chan”)) upon the execution by Chan in 2009 of a Tripartite Legal Charge/Mortgage (“the Jafoon Mortgage”) in favour of Jafoon Property Finance Limited (“Jafoon”) (“the Severance Requisition”);

(2)  the requisition on the contents of the Government Lease of Kowloon Marine Lot No 28 (“the Government Lease Requisition”); and

(3)  the requisition on whether V was in possession of the originals of certain title deeds which related exclusively to the Property (“Missing Title Deeds Requisition”).

4.  However, subsequently, P decided only to pursue the matters relating to the Severance Requisition in these proceedings[2].  Accordingly, I would only deal with these matters in this judgment. The outcome of these proceedings would depend upon my ruling on the Severance Requisition.

The facts

5.  The factual background relating to the Severance Requisition is as follows:

(1)  On 8 November 1999, the Property was assigned to Lau and Chan as joint tenants.

(2)  On 24 June 2009, Chan alone as mortgagor executed the Jafoon Mortgage.

(3)  On 22 April 2003, Lau passed away.

(4)  By an assignment dated 11 February 2014 (“the 2014 Assignment”), Chan assigned the Property to V.

(5)  On 2 May 2020, P and V signed the PSPA. The scheduled completion date as per the PSPA is 2 July 2020 (“the Scheduled Completion Date”).

6.  On 18 May 2020, P raised the Severance Requisition.  P took the view that by executing the Jafoon Mortgage, Chan had severed the joint tenancy.  Thereafter Chan and Lau owned the Property as tenants in common in equal shares.  Lau’s share would not be passed to Chan upon Lau’s death on 22 April 2003 by the operation of survivorship.  Accordingly, the 2014 Assignment would only have the effect of assigning Chan’s ½ share in the Property to V.  The other ½ share was vested in Lau’s estate.  In order to give a good title to P, it would be necessary for V to obtain a confirmatory assignment duly executed by the personal representative(s) of Lau’s estate to pass the other ½ share to V.

7.  On 26 May 2020, V gave a reply to the requisition. V did not agree with P that the joint tenancy had been served by the Jafoon Mortgage.

8.  The parties continuously exchanged correspondence on this requisition, but neither side could persuade the other side.

9.  On 23 June 2020, P issued the OS and served the same on V.

10.  Completion did not take place on the Scheduled Completion Date, ie 2 July 2020.

11.  On 3 July 2020, V wrote to P, informing P that V elected to terminate the PSPA and forfeit the deposits paid by P under the PSPA.

The crux

12.  Although there is no express term in the PSPA concerning V’s obligation to show a good title, it is trite that there is such an obligation in an open contract.  Not only V has the obligation to answer a requisition properly raised by P, V also has an obligation to satisfactorily answer the requisition at a time reasonably before the Scheduled Completion Date.  The point has already been made clear in the last century by the Court of Appeal in Acitve Keen Industries Ltd v Fok Chi-keong[3], in which Litton JA (as he then was) said:

“…… even though the Chinese agreement is wholly silent on the question of objections and requisitions as to title, there is an obligation on the vendor to show a good title. This obligation arises by necessary implication from the contract itself. This accords with common-sense. Were the law otherwise, the purchaser might be left in the position of having to make a snap decision on the day fixed for completion, on scanty information, as to whether to complete or not. It follows that this obligation falling on the vendor to properly answer requisitions and inquiries, if reasonably raised by the purchaser, must be discharged within a reasonable time, to enable the purchaser to satisfy himself on the matter, get his money ready and complete on the day fixed.”

13.  Further, V also has a duty to give a good title to P upon completion.  This has been expressly spelt out in Clause 6 of the PSPA.

14.  The duty to show a good title and the duty to give a good title are two separate and independent duties[4].

15.  Here, the difference between P and V is whether the joint tenancy between Chan and Lau had been severed by Chan’s execution of the Jafoon Mortgage on 24 June 2009.  In my view, this is the crux of the whole case.  If the answer to this question is “Yes”, V would have failed to answer the Severance Requisition, and would also have not been able to give a good title to P on the Scheduled Completion Date.  Conversely, if the answer to this question is “No”, all the complaints raised by P would not be valid.

Analysis

16.  It is well established that a joint tenancy would display 4 unities, ie the unities of (a) possession, (b) interest, (c) title and (d) time.

17.  In the well-known case Williams v Hensman, Page Wood V-C said[5]:

“A joint tenancy may be severed in three ways: in the first place, an act of any one of the persons interested operating upon his own share may create a severance as to that share… Secondly, a joint tenancy may be severed by mutual agreement. And, in the third place, there may be a severance by any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common...”. (Emphasis added)

18.  P submits that in the present case, the joint tenancy between Chan and Lau was severed by the first way mentioned in Page Wood V-C’s statement.  In P’s submissions, by entering into the Jafoon Mortgage as mortgagor alone, Chan was doing a unilateral act operating on her share in the Property, which act fell under the first out of the three ways propounded by Page Wood V-C by which a joint tenancy may be severed.

19.  P relies upon the following authorities in support of her contention:

(1)  In Ma Sum v Ma Choi Kee & Ors[6], it was held that when one of the joint tenants entered into a mortgage, a severance of the joint tenancy took effect as a mortgage of the mortgagor’s undivided share.  Huggins J (as he then was) said[7]:

“The basis of the principle is indicated in York v Stone: a joint tenancy is an odious thing in equity and it is to the disadvantage of the mortgagor that the joint tenancy should continue, because if he happen to die first all his estate and interest goes from his representative to the survivor. …… It was suggested that if the mortgage … by the 1^st defendant was a mortgage of her share in a tenancy in common it was not registered as such, but the Land Registration Ordinance provides a register of deeds only and it is immaterial to the validity of an entry in the register that the effect of the deed in law is not that anticipated by the parties.” (Emphasis added)

(2)  Ma Sum was followed and applied by DDJ Kate Li in MoneySQ Ltd v Liu Kit Ling & Anor[8].

(3)  In Cedar Holdings Ltd v Green & Anor[9], Buckley LJ in the English Court of Appeal said :-

“If the effect of ...the legal charge…was…to occasion a disposal by the first defendant of his beneficial interest under the statutory trust…, there can, I think, be no doubt that the legal charge… would have effected a severance of the joint beneficial ownership. The legal charge…would constitute an act by one of the joint owners operating upon his own share. This would fall within the first of the three methods of severance mentioned by Page Wood V-C in Williams v Hensman (1861) 1 John & H 546, 557. The effect of such an act is to destroy the unity of interest theretofore existing between the joint owners and so to put an end to the joint ownership.” (Emphasis added)

(4)  In First National Securities Ltd v Hegerty & Anor[10], the husband purporting to act on behalf of both himself and his wife executed a legal charge of the house (then held by him and his wife as joint tenants) to the plaintiff therein by forging his wife’s signature.  The wife was unaware of the transaction.  Bingham J held that[11]:

“If the husband and wife were up to then equitable as well as legal joint owners of the house I think that this disposition by the husband was a sufficient act of alienation to sever the beneficial joint tenancy and convert the husband and wife into tenants in common.”

(5)  Bingham J’s decision was upheld on appeal. Sir Denys Buckley in the English Court of Appeal said[12]:

“The judge, however, (rightly, in my opinion) took into consideration the possible effect upon the husband’s interest in 24, Mill Road of the two forged documents. He expressed the view that, if the husband and the wife were up to then equitable as well as legal joint owners of the house, the forged legal charge… was a sufficient act of alienation of the husband’s interest to sever the beneficial joint tenancy and to create a valid equitable charge upon the husband’s beneficial interest in favour of the plaintiffs.”

(6)  In Fortis Bank Asia HK v Yu Kam Hoi Herman & Anor[13], Reyes J said:

“94. ...... The only other realistic possibility is that the Property was assigned to the brothers as joint tenants both at law and in equity. Assume that was the case. Where A, B and C are joint tenants and A alienates his interest to T, severance takes place. In such situation, B and C continue to hold an interest in 2/3 of the property as join[t] tenants between themselves. The remaining 1/3 interest is held by T as tenant in common with B and C. Thus, when Joseph’s interest was charged to the Bank, a 1/3 share in the Property would have become severed in equity from the joint tenancy among the brothers.”

20.  P further submits that the execution of the Jafoon Mortgage by Chan as the mortgagor alone would not only have the effect of severing the joint tenancy in equity, but would also have the effect of severing the joint tenancy at law.

21.  S.8 of the CPO provides:

“Severance of joint tenancy

(1) A joint tenancy of an estate or interest in land may be severed at law only by -

(a) a notice served by a joint tenant on the other joint tenants; or

(b) an instrument.

(2) A joint tenancy of an estate or interest in land may be severed in equity by a notice served by a joint tenant on the other joint tenants or by any other method that is effective in equity or that would, but for subsection (1), be effective at law.”

22.  Prior to the execution of the Jafoon Mortgage by Chan, the Property was held by Chan and Lau as joint tenants at law, for both Chan and Law were the registered owners of the Property as joint tenants.  The Jafoon Mortgage is an “instrument” satisfying the requirement in s.8(1)(b) of CPO, for the term “instrument” was defined in s.2 of CPO[14] to mean “any document having legal effect except a will”.  It is not necessary for the Jafoon Mortgage to expressly spell out a severance of the joint tenancy at law, for there is no such requirement under s.8(1)(b) of CPO.

23.  V contends that:

(1)  As shown in the Jafoon Mortgage, Chan mortgaged her interests in the Property as “one of the joint tenants”.

(2)  As prescribed by s.44(1) of the CPO, as from 1 November 1984 onwards, a mortgage of a legal estate may be effected at law only by a charge by deed expressed to be a legal charge.  There would be no assignment of the legal estate by the mortgagor to the mortgagee.  Notwithstanding this change, as stated in s.44(2) of the CPO, the mortgagor and the mortgagee would have the same protection, power and remedies as if the mortgage had been effected by way of assignment of the legal estate.

(3)  The Jafoon Mortgage was only an encumbrance on the Property.  Jafoon could only have security over the share or interest owned by Chan as one of the joint tenants.  The Jafoon Mortgage did not involve any alienation of interest in land.

(4)  Ma Sum was decided before 1 November 1984.  In view of the introduction of s.44 of the CPO on 1 November 1984, Ma Sum was no longer good law.  In Moneysq, there was no full argument on the point.

(5)  First National Bank was based upon UK legislation with wording different from s.44 of CPO.

24.  V heavily relies upon Ho Wai Kwan v Chan Hon Kuen in support of her contention.[15]  The issue in that case was whether a charging order made under s.20 of the High Court Ordinance in respect of a joint tenant’s interest in land would have the effect of severing the joint tenancy.  DHCJ Simon Leung ruled that there was no severance in such circumstances.

25.  In my view, Ma Sum is not affected by the introduction of s.44 of the CPO on 1 November 1984.  V does not dispute that before 1 November 1984, Ma Sum should be regarded as good law.  Thus, before 1 November 1984, the execution by a joint tenant of a mortgage would have the effect of severing the joint tenancy, and the mortgage would be a mortgage of his share in a tenancy in common.  The mortgagee would have a protection, ie the mortgagee’s interest would not be affected if the mortgagor predeceases the other owner of the Property.

26.  S.44(2) of the CPO provides:

“Under a mortgage effected by a legal charge, the mortgagor and the mortgagee shall, subject to this Ordinance, have the same protection, powers and remedies (including but not limited to those relating to foreclosure and the equity of redemption but excluding the power of the mortgagee to enter into possession before any default by the mortgagor) as if the mortgage had been effected by way of assignment of the legal estate before the commencement of this section.” (Emphasis added)

27.  The protection enjoyed by the mortgagee as mentioned in [25] above, as prescribed by s.44(2) of the CPO, should not and would not be affected by the introduction of s.44 of the CPO.  There is no basis to say that s.44 of the CPO has reversed the holding in Ma Sum.

28.  In my view, P’s position is well supported by the authorities cited in P’s written submissions.  As said by Buckley LJ in Cedar Holdings Ltd, the execution of a legal charge by one joint tenant would constitute an act of that joint tenant operating upon his own share.  The effect of such an act is to destroy the unity of interest existing between the joint owners and so to put an end to the joint ownership.  I do not see how this position is affected by s.44 of the CPO.  On the contrary, this position is preserved by the statutory provision.  See the analysis in [25] to [27] above.

29.  In Ho Wai Kwan, the learned judge declined to follow an obiter dictum of the Court of Appeal in Siu Chun-wah, Alice & Anor v Malahon Credit Co. Ltd[16]:

“We entertain no doubt that her evidence was sufficient to establish that it was intended, right from the beginning, that she would share the beneficial interest in the flat jointly with Mr. Ng, and that the effect of that evidence is that while they were joint tenants at law (with benefit of survivorship) in equity, which leans against joint tenancies, they are to be regarded as having equal shares as tenants in common. If this is not the true position and they were joint tenants in equity, then when the charging order absolute was made there was a severance and they became tenants in common.” (Emphasis added)

30.  The conflict between Ho Wai Kwan and Siu Chun-wah was noted by the Court of Appeal in Primecredit Ltd v Yeung Chun Pang Barry[17]. In Primecredit, Lam VP said:

“1.8 …… Counsel have not addressed us on the question if the making of the charging order in favour of the plaintiff would have the effect of equitable severance. There are conflicting local authorities: Ho Wai Kwan v Chan Hon Kuen [2015] 1 HKLRD 901 contra Malahon Credit Co Ltd v Siu Chun Wah Alice [1988] 1 HKLR 196. We leave that issue open for debate on another occasion.” (Emphasis added)

31.  Whether Ho Wai Kwan has been correctly decided is an arguable issue, and the issue may be decided by the Court of Appeal on an appropriate occasion in future.  In the present case, even assuming Ho Wai Kwan is a correct decision, I am of the view that V may not succeed by relying upon that case.

(1)  In Ho Wai Kwan, the court held that a charging order targeting a joint tenant’s interest in the land would not have the effect of severing the joint tenancy. However, the issue here is whether a charge executed by a joint tenant would sever the joint ownership.  In my view, the issue here is different from the issue in Ho Wai Kwan.

(2)  When a charging order is imposed on a judgment debtor in respect of his interest in a jointly owned property, no positive act has been performed by the judgment debtor in relation to his interest in the land.  The judgment debtor’s role is passive, and he simply has done nothing in relation to his interest in the land.

(3)  However, the situation in this case is that Chan executed the Jafoon Mortgage and this was an active act done by Chan.  Chan’s execution of the Jafoon Mortgage is an act of Chan operating upon her share in the Property.

(4)  V’s stance is that “the Schedule to Jafoon Mortgage clearly states that Chan mortgaged her interests in the Property as ‘one of the joint tenants’ ”. [18]

(5)  As per the Second Schedule to the Jafoon Mortgage, the property mortgaged to Jafoon is “ALL THAT the Mortgagor’s interest as one of the joint tenants in [the Property]”.  It is clear that the only mortgagor in the Jafoon Mortgage is Chan.  Lau did not execute the Jafoon Mortgage as mortgagor, and Lau did not authorize Chan to execute the Jafoon Mortgage on Lau’s behalf as mortgagor.

(6)  It cannot be said that all the interest in the Property had been mortgaged to Jafoon under the Jafoon Mortgage.  Since the Property was jointly owned by Chan and Lau, in order to mortgage all the interest in the Property to Jafoon, it would be necessary to have consent from both Chan and Lau.

(7)  In Thames Guaranty Ltd v Campbell & Ors[19], Mann J:

“In my judgment the deposit of title deeds with the creditor does not operate as an equitable charge unless the deposit is an effective one. A deposit is an effective one in my view if the creditor can retain custody until his debt is paid. I do not regard the deposit of title deeds by one joint tenant without the consent of the other as being effective in that sense. My reasons are as follows.

Joint owners of a legal estate are jointly entitled to the custody of the title deeds relating to that estate: see Halsbury’s Laws of England, 4^th ed., Vol 39 (1982), para 388. The two are trustees of the deeds no less than they are of the legal estate. Trustees can act only with unanimity…” (Emphasis added)

(8) Mann J’s decision was affirmed on appeal. In the English Court of Appeal’s judgment, Slade LJ said[20]:

“Nevertheless, as at May 1973, Mr Campbell did have the power, without his wife’s concurrence, to sever the beneficial joint tenancy in the property (which for present purposes we assume existed on that date) and to dispose of his severed beneficial interest in such manner as he thought fit. If, on 24 May 1973, he had signed a written assignment of his beneficial interest in the property in favour of the plaintiffs to secure the proposed advances, this would, in our opinion, unquestionably have amounted to a course of dealing sufficient to sever the beneficial joint tenancy and to create a charge on such beneficial interest…”.

(9)  Clearly, when Chan executed the Jafoon Mortgage, she was mortgaging her interest in the Property to Jafoon.  At that point of time, the unity of interest was destroyed, and Chan and Lau became to hold the Property as tenants in common in common, each having ½ interest in the Property.  The interest mortgaged by Chan to Jafoon under the Jafoon Mortgage was Chan’s ½ share in the Property.

(10)  In my view, the analysis in the above is in accordance with well-established principles and is not affect by the Ho Wai Kwan case.

32.  V seeks to rely upon the decision of the Supreme Court of Victoria in Lyons v Lyons[21] to argue that the Jafoon Mortgage was a mere encumbrance on the Property and would not sever the joint tenancy.  In Ho Wai Kwan, the learned judge referred to Lyons v Lyons and said:

“25. In Australia, there were cases where the court had a similar conclusion in respect of the effect of a mortgage under the Torrens system on joint tenancy. A Torrens mortgage involved a charge without a conveyance. In Lyons v Lyons [1967] VR 169, the Supreme Court of Victoria accepted (at 173) that under the general law, the mortgagor conveys his estate as a joint tenant in the mortgaged land to the mortgagee. He thus obtained the estate and interest under a different instrument or judicial act than the other joint tenant. The original unities of title between them were thus destroyed. McInerney JA continued (at 174) to observe that an encumbrance however does not pass the estate or interest in the land itself and therefore does not destroy any of the unities between the joint tenants. Examples of such encumbrances are the grant of a rent-charge or profit a prendre. A Torrens mortgage does not operate as a transfer of the estate or interest but has the effect as a security. His lordship held (at 174) that such a mortgage affects none of the unities of joint tenancy and thus amounting to no severance.”

33.  Lyons v Lyons is a decision on the interpretation and application of s.74(2) of the Transfer of Land Act 1958 in Australia, which reads as follows:

“Any such mortgage or charge shall when registered have effect as a security and be an interest in land, but shall not operate as a transfer of the land thereby mortgaged or charged.”

34.  One can immediately see that there is no provision similar to s.44(2) of the CPO in the Australian legislation.  In my view, this is a significant difference.  The effect of s.44(2) of the CPO is to deem a mortgage effected by a legal charge as a mortgage effected by assignment of the legal estate.  With this deeming provision in the Hong Kong legislation, in my judgment, V may not derive assistance from Lyons v Lyons.

35.  V argues that the Jafoon Mortgage was a mere encumbrance on the Property and Chan did not alienate her interest in the Property by executing the same.  With respect, I am unable to agree.  The execution of Jafoon Mortgage by Chan would be an act of Chan creating an encumbrance on her own share (not an encumbrance on the entire Property, for Lau’s consent was absent).  Bearing in mind that by the operation of s.44(2) of the CPO, Chan’s act would be deemed as equivalent to executing a mortgage by assigning her own share in the Property to Jafoon.  That act would already have the effect of severing the joint tenancy.

36.  P also refers to Clause 3.01 of the Jafoon Mortgage.  Under that clause, apart from charging her legal estate in the Property to Jafoon by way of first legal charge, Chan also assigned absolutely to Jafoon all her equitable interest in the Property.  P submits that Chan has alienated her interest in the Property by executing the Jafoon Mortgage.

37.  V submits that P is not entitled to rely upon Clause 3.01 of the Jafoon Mortgage, for P has not raised the same in the correspondence during the requisition stage.  In my view, there is no merit in this objection.

(1)  P’s argument based upon Clause 3.01 is a point of law.  V is not saying that had this argument been raised during the requisition stage, V would have had been able to produce some factual evidence to deal with this argument.  In these circumstances, P may pursue the argument in these proceedings, no matter whether P has raised the same point in the correspondence or not.  As said by Litton JA (as he then was) in Active Keen[22], a requisition as to title is not an occasion for the parties’ solicitors to bandy propositions of law.  The vendor’s solicitor must act with total candour and disclose all the material facts to the purchaser’s solicitor.  As what the legal position is based upon the facts disclosed, each party must ultimately decide for himself.  In the absence of any prejudice to V, I do not see why P should be prevented from running this argument in these proceedings.

(2)  Further, apart from the duty to show a good title, V also has the duty to give a good title on the Scheduled Completion Date.  As said by the Court of Appeal in Profit World:

“23. …… a vendor’s obligation to give a good title on completion cannot depend on whether a requisition as to defects was raised within time or was raised late or not at all. Either he is in a position to give a good title on completion or he is not. Requisition cannot alter the nature of that obligation.”

38.  Having considered V’s submissions, I do not see any satisfactory answer to P’s argument based upon Clause 3.01 of the Jafoon Mortgage.  I accept P’s argument.  In my view, P’s argument has forceful refuted V’s contention that Chan did not alienate her interest in the Property by executing the Jafoon Mortgage.

39.  P further relies upon Clause 14.01 of the Jafoon Mortgage in support of the argument that Chan has alienated her interest in the Property by executing the Jafoon Mortgage.  Under Clause 14.01, Chan appointed Jafoon as her attorney to do various acts in relation to the Property.  The authorization could not be an authorization relating to the entire interest in the Property, for such an authorization could only be given by Chan and Lau jointly.  The authorization could only be an authorization given by Chan in relation to Chan’s share in the Property.  This authorization itself is an act by Chan operating upon her own share in the Property, and would be sufficient to create a severance.  In my view, there is no satisfactory answer from V on this point.  I agree with P and accept P’s submission.

40.  In my judgment, the Jafoon Mortgage did have the effect of severing the joint tenancy between Chan and Lau.  After the execution of the Jafoon Mortgage, Chan and Lau held the Property as tenants in common in equity and at law, each having ½ interest in the Property.  Since the 2014 Assignment was only executed by Chan, the ½ share in Lau’s estate has not been passed to V.  Accordingly, V would not be able to give a good title to P on the Scheduled Completion Date.

41.  I hold that V has failed to show a good title by providing a satisfactory answer to the Severance Requisition at a time reasonably before the Scheduled Completion Date.  Further, V has also failed to give a good title to P on the Scheduled Completion Date.

Disposition

42.  I give judgment to P.  For the reasons set out in the above, I am of the view that P is entitled to have reliefs as per [1] to [6] of the OS.  I so order.  There be liberty to apply.

43.  Costs should follow the event.  At the beginning, P indicated that she would rely upon the Severance Requisition, the Government Lease Requisition, and the Missing Title Deeds Requisition in support of her claim[23]. Later, P abandoned the Missing Title Deeds Requisition[24].  Subsequently, P further abandoned the Government Lease Requisition[25]. Although P succeeds in these proceedings, V has spent time to deal with these abandoned issues.  In order to reflect the time spent by V on the issues abandoned by P, in my view, the fair apportionment should be 70% of the costs of these proceedings be paid by V to P.  With no disrespect to Mr Lee and Ms Yip for P, the complexity of these proceedings would not be sufficient to justify a certificate for 2 counsel.

44.  Pursuant to the directions given by the court, the parties have provided me submissions as to whether the costs of these proceedings should be taxed or assessed on the High Court scale or on the District Court scale.  Upon reflection, since I do not know whether there has been any without prejudice communication between the parties which may have an impact on costs, I would only make a costs order nisi at the present stage.

45.  There be a costs order nisi that 70% of the costs of these proceedings (including all costs reserved) be paid by V to P, to be taxed if not agreed.  Any application for an order varying the costs order nisi should be made within 14 days after the handing down of this judgment.

46.  Lastly, it remains for me to thank all counsel for the assistance rendered to the court.