IP PUI LAM ARTHUR AND ANOTHER v. ALAN CHUNG WAH TANG AND OTHERS

HCB 3819/2011

[2019] HKCFI 149

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BANKRUPTCY PROCEEDINGS NO 3819 OF 2011

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DECISION

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A. INTRODUCTION

1.  This is an application by the trustees in bankruptcy of the estate of Ho Yuk Wah David (“the Bankrupt”) under section 29 of the Bankruptcy Ordinance (Cap 6) for the production of certain documents.  The respondents are the trustees in bankruptcy of the estate of Lee Siu Fung Siegfried (“LSF”).

B.     THE RELEVANT FACTUAL BACKGROUND

2.  On 2 August 2011, a bankruptcy order was made against the Bankrupt on his own petition.  On 30 September 2011, the applicants were appointed the joint and several trustees of the property of the Bankrupt.

3.  As a result of their investigations, the applicants believe that the Bankrupt has been operating a complex scheme using about 30 offshore companies and nominees to conceal his assets, carry on his business ventures and litigations, and pay his personal and family expenses. Their investigations also revealed that through those offshore companies and his family members, the Bankrupt had diverted a significant amount of funds out of reach of his creditors.[1]

4.  The applicants believe that the offshore companies include Topmark Asia Ltd (“Topmark”) and Sun Ascent International Ltd (“Sun Ascent”), which are both companies incorporated in the BVI.  They consider that the Bankrupt is beneficially interested in and has control over Topmark and Sun Ascent.

5.  One of the respondents, Mr Alan Tang (“Mr Tang”), together with Mrs Alison Wong, were the joint and several liquidators (“the CWT Liquidators”) of CWT Textile Supplies Co Ltd (“CWT”). 

6.  Pursuant to a previous application of the applicants for production of documents, the CWT Liquidators produced (1) a consultancy agreement dated 29 December 2003 between the CWT Liquidators and Topmark (“the CWT Consultancy Agreement”) and (2) a funding agreement dated 29 December 2003 between the CWT Liquidators and Sun Ascent (“the CWT Funding Agreement”), collectively as “the CWT Agreements”.

7.  Pursuant to the CWT Agreements, Topmark provided consultancy services to the CWT Liquidators in relation to CWT Liquidators’ litigation against CWT’s former auditors for professional negligence (“the CWT Litigation”), and Sun Ascent provided funding to the CWT Liquidators in respect of the CWT Litigation.  The CWT Litigation was considered by the applicants to be the Bankrupt’s distress assets investments with him behind Sun Ascent and Topmark.

8.  The CWT Litigation was eventually settled, resulting in the payment of a sum of HK$45 million to the CWT Liquidators. Substantial sums were paid to Topmark and Sun Ascent pursuant to the CWT Agreements.

9.  Subsequently, the applicants were provided with the following documents:

(1) A funding agreement dated 4 August 2005 between Keentrade Investments Limited (“Keentrade”) and the respondents (“the LSF Funding Agreement”).  This was provided by Messrs ONC Lawyers representing Mr Tang in HCMP 450/2016 in late 2016.

(2) A consultancy agreement between Sinowood International Limited (“Sinowood”) and the respondents (“the LSF Consultancy Agreement”).  This was provided by Messrs ONC Lawyers representing the respondents in December 2017.

The two agreements are collectively referred to as “the LSF Agreements”.

10.  Pursuant to the LSF Agreements, Sinowood provided consultancy services to the respondents in connection with the latter’s litigation against LSF and other parties (“the LSF Litigation”), and Keentrade provided funding to the LSF Litigation. 

11.  The applicants believe that the Bankrupt controls Keentrade and Sinowood and stands to benefit from any payments that the companies may receive from the Respondents under the LSF Agreements

12.  By an inter-partes summons dated 27 April 2018 (“the Summons”), the applicants seek the production of the following documents from the respondents within 14 days:

(1) Copies of the documents leading up to, arising out of or in connection with the LSF Consultancy Agreement, including but not limited to any further agreement(s), correspondence(s),minutes of meeting(s)/‌written resolution(s) of creditors/‌committee of inspection/‌court order(s), and cheque(s), bank draft(s), cashier order(s), invoice(s) and receipt(s) and any other accounting documents in relation to the Consultancy Agreement.

(2) Copies of any other funding agreement and/or consultancy agreement in relation to the claim(s) against LSF and any other parties and the documents arising out of or in connection with this/these agreement(s), including but not limited to any further agreement(s), correspondence(s), minutes of meeting(s)/‌written resolution(s) of creditors/committee of inspection/court order(s),and cheque(s), bank draft(s), cashier order(s), invoice(s) and receipt(s) and any other accounting documents in relation to this or these agreement(s).

C.     THE RELEVANT LAW

13.  Sections 29(1) and 29(1A) of the Bankruptcy Ordinance provide as follows:

“ (1) The court may, on the application of the Official Receiver or trustee, at any time after a bankruptcy order has been made against a bankrupt summon before it the bankrupt or his spouse, or any person known or suspected to have in his possession any of the estate or effects belonging to the bankrupt or supposed to be indebted to the bankrupt, or any person whom the court may deem capable of giving information respecting the bankrupt, his dealings or property, and the court may require any such person to produce any documents in his custody or power relating to the bankrupt, his dealings or property.

(1A) The court may require a person referred to in subsection (1),other than the bankrupt, to submit an affidavit to the court containing an account of his dealings with the bankrupt or to produce any documents in his possession or under his control relating to the bankrupt or the bankrupt’s dealings, affairs or property.”

14.  The relevant legal principles on the provision of information or documents under section 29 are as follows:

(1) The Court’s power under section 29 of the Bankruptcy Ordinance (Cap 6) to order production of information or documents is to be exercised in the same way as an application under the now repealed section 221 of the Companies Ordinance (Cap 32): Re Lai Kwok Ying (a bankrupt)(unreported, HCB 8750/2007, 7 August 2009) §5 (Kwan J (as she then was)).

Whether provision of information or documents is reasonably required

(2) The applicant must satisfy the court the essential condition that the provision of information or documents is reasonably required for him to carry out his functions: Hau Po Man Stanley (in bankruptcy) v Joint and Several Trustees [2008] 1 HKC 256 at §21(a) (Chung J sitting in the Court of Appeal);Joint & Several Liquidators of Kong Wah Holdings Ltd v Grande Holdings Ltd (2006) 9 HKCFAR 766 at §27 (Lord Millett NPJ).

(3) In considering this question, great weight should be given to the views of the applicant, for he is an officer of the court and alone has the necessary knowledge of the problems facing him un understanding the affairs of the estate and his reasons for seeking production of documents in the terms proposed: Kong Wah Holdings Ltd (above) at §27.

Whether respondent is able to provide information or documents

(4) The applicant must also establish a prima facie case that the respondent is able to provide such information or documents:Hau Po Man Stanley (above) at §21(b).

Balancing exercise

(5) If the above criteria are met, the court must carefully strike a balance between the applicant’s reasonable requirements and the need to avoid making an order which is wholly unreasonable, unnecessary or oppressive to the person concerned.  The burden is on the applicant to satisfy the court,after balancing all the relevant factors, there is a proper case for such an order to be made.  See Hau Po Man Stanley (above) at §21(c).

(6) The applicant may not embark on a “fishing expedition” that ignores costs and proportionality: Re Lee Priscilla Hwang (bankrupt) [2012] 4 HKLRD 581 at §23 (Recorder A Chow SC(as he then was)); Re Lee Siu Fung Siegfried [2017] 1 HKLRD 1155 at §34 (G Lam J).

D.     DISCUSSION

15.  It is common ground that the documents sought by the applicants in this section 29 application can be categorised as follows:

(1) Documents leading up to, arising out of or in connection with the LSF Consultancy Agreement (“Category 1 Documents”).

(2) Other funding agreements in relation to the claims against LSF, and the documents arising out of or in connection with such funding agreements (“Category 2 Documents”).

(3) Other consultancy agreements in relation to the claims against LSF, and the documents arising out of or in connection with such consultancy agreements (“Category 3 Documents”).

D1.    Category 1 Documents

16.  Mr David Chen, on behalf of the applicants, submitted the Category 1 Documents are reasonably required for the applicants to carry out their functions to investigate the affairs and property of the Bankrupt.  On the basis of the following matters, the applicants believe that the Bankrupt controls Keentrade and Sinowood and stands to benefit from any payments that the companies receive from the respondents under the LSF Consultancy Agreement and the LSF Funding Agreement:

(1) The applicants believe that the Bankrupt funded, or at least was substantially involved in, the CWT Litigation.

(2) Additionally, the applicants believe that the Bankrupt is involved in the LSF Litigation through Keentrade and Sinowood.

17.  I consider that the applicants’ belief that the Bankrupt funded, or was substantially involved in, the CWT Litigation to be supported by sufficient evidence:

(1) The Bankrupt was a director of Topmark and, through his corporate vehicle, a director of Sun Ascent.  It is reasonable to infer that the Bankrupt was beneficially interested in and controlled Topmark and Sun Ascent.  I note that To J made the same inference in §§36 and 39 of his judgment in Re Ho Yuk Wah David (bankrupt) [2015] 2 HKLRD 603.

(2) The CWT Liquidators paid HK$24.8 million out of the settlement sum to Topmark, which subsequently paid over HK$12 million to two companies, which in turn paid substantial sums to the Bankrupt and his nominees.  In this connection, I note that To J in §27 of Re Ho Yuk Wah David (above) said that “[t]here is clear evidence that, at least, some of the funds paid by CWT to [Topmark] and Sun Ascent found their way to the Bankrupt through those offshore companies and were used to discharge the Bankrupt’s personal liabilities”.

(3) The respondents have not put forward anything to cast doubt on the applicants’ belief.

18.  Further, I consider there is sufficient evidence to support the applicants’ belief that the Bankrupt has been involved in the LSF Litigation through Keentrade and Sinowood:

(1) According to the Distribution Schedule dated 5 March 2009, an amount of HK$1,560,200 from the settlement sum in the CWT Litigation was used in the LSF bankruptcy matter.  The respondents’ evidence is that “the funders for the LSF Funding and Sun Ascent apparently belonged / were related to same group of investors or they were investors with a close business relationship”.  Given that the applicants have adduced sufficient evidence to establish that the Bankrupt was beneficially interested in and controlled Sun Ascent, it follows from the respondents’ evidence that the Bankrupt was related to, or had a close business relationship with, the funders in the LSF bankruptcy matter.

(2) The respondents’ evidence further shows that the proceeds recovered in the CWT Liquidation were used to discharge legal fees incurred in the LSF bankruptcy matter.  In the absence of any suggestion from the respondents to the contrary, I agree with Mr Chen’s submission that this arrangement could only be explained by the fact that the funders behind the CWT Litigation and the LSF case were the same person(s) who approved the arrangement. 

(3) Further, Mr Tang on behalf of the respondents sent two letters dated 9 May 2012 and 8 October 2012 to Keentrade. Each of the letters was recorded to have been copied to “Sinowood International Limited Attn: Mr David Ho (via email)”.  Moreover, the Bankrupt was identified by Mr Tang in his letter to Keentrade dated 8 October 2012 as “Mr David Ho of your consultants, Sinowood International Limited”.  These letters in my view show that the Bankrupt at the relevant time controlled,or had substantial connections with, Sinowood.

19.  For these reasons, I consider the applicants have cogent evidential basis to believe that the Bankrupt at the material times controlled Keentrade and Sinowood, and stands to benefit from any payments that the companies receive from the respondents under the LSF Consultancy Agreement and the LSF Funding Agreement.  The Class 1 Documents seek the production of all the documents leading up to, arising out of or in connection with the LSF Consultancy Agreement.  The applicants consider that such documents are reasonably required for them to discharge their duties and I attach weight to their views.  I am satisfied that the Class 1 Documents are reasonably required for the applicants to carry out their functions.

20.  Mr Patrick Siu, on behalf of the respondents, submitted that the Class 1 Documents are not reasonably required to discharge the applicants’ functions.  He relied on the fact that (1) the applicants had commenced proceedings in HCA 2752/2015 (“the Declaration Proceedings”) to seek a declaration that the shares in, amongst others, Keentrade, Sun Ascent and Topmark were held on behalf of the Bankrupt and (2) the applicants had discontinued the Declaration Proceedings in August 2017.  Mr Siu submitted that as a result of the discontinuance of the Declaration Proceedings, the applicants must be taken to have abandoned their speculation that the Bankrupt has been in control of Keentrade, Sun Ascent and Topmark, and therefore cannot be heard to say that they reasonably require the Class 1 Documents.  In making these submissions, I understand that Mr Siu was not seeking to rely on the legal doctrine of waiver or estoppel.

21.  I am unable to accept the respondents’ submissions: 

(1) The applicants’ evidence for the discontinuance of the Declaration Proceedings in August 2017 is that it would enable the Applicants to focus their efforts on other aspects of the bankruptcy.  They further say that if they have sufficient time and resources, they will consider reviving the claims in the Declaration Proceedings. 

(2) Further, Mr Chen submitted that new evidence surfaced in December 2017 when the applicants received from the respondents’ solicitors the above-mentioned letters written by Mr Tang to Keentrade, and that this bolstered the appellants’belief that the Bankrupt has been in control of Keentrade and Sinowood.

(3) In any event, the applicants have filed affidavit evidence to state that one of the primary purposes of this application is to confirm whether their belief that the Bankrupt is the person behind Keentrade and Sinowood is correct.  This clearly shows that the applicants have not abandoned this belief.

(4) In these circumstances, I cannot see how the applicants can be said to be no longer maintaining the belief that the Bankrupt is the person controlling Keentrade and Sinowood.

22.  Further, I am satisfied that the applicants have established a prima facie case that the respondents are able to provide the Class 1 Documents.  Indeed, the respondents did not put forward anything to contend otherwise.

23.  As far as the balancing exercise is concerned, Mr Siu submitted that an order for production of the Class 1 Documents should not be granted because (1) it is oppressive, (2) it is disproportionate and (3) the applicants are in collusion with LSF in making this application.

24.  On oppression, the respondents submitted that the applicants could have sought discovery of the Class 1 Documents against Keentrade in the Declaration Proceedings and that it is now oppressive to seek production of documents in this application, relying on Re China Medical Technologies Inc [2016] 2 HKLRD 962 at §24 and Cloverbay Ltd v Bank of Credit and Commerce International SA [1991] Ch 90 at 102C.  I am not satisfied that it is oppressive for the respondents to produce the Class 1 Documents: 

(1) As Mr Chen informed the Court during the hearing, Keentrade did not acknowledge service of the Writ in the Declaration Proceedings.  It therefore cannot be said that the applicants could have obtained discovery of any documents from Keentrade in those proceedings.

(2) The two authorities cited by the respondents also do not assist them.  In both Cloverbay and Re China Medical, it was held that the Court is required to balance the legitimate need of the liquidator against any possible oppression to the person to the examined, and that such balancing depends on the relationship between the importance to the liquidator of obtaining the information on the one hand and the degree of oppression to the person sought to be examined on the other.  I do not believe it can be said that the applicants currently have sufficient information to proceed with an action but nonetheless seek an order to compel the respondents to provide more.

(3) I have also borne in mind what Lord Millett NPJ said in Kong Wah Holdings Ltd (above) at §30(6) that an order is not necessarily oppressive because it is inconvenient for the party subject to it or causes him a lot of work or may make him vulnerable to future claims.

25.  Further, the respondents submitted that the applicants have made over 20 section 29 applications and that it is disproportionate to pursue this application particularly when the Declaration Proceedings have been discontinued.  However, the previous applications were made against banks and other professional parties and the documents sought in this application are not the subject matters of the previous applications.  I am unable to see why it is disproportionate to order the production of the Class 1 Documents.

26.  Finally, the respondents relied on two matters and asked the Court to draw the inference that this application is made by the applicants to assist LSF and that the applicants are colluding with LSF: 

(1) First, the respondents pointed to an incident in 2017 where the applicants disclosed to LSF’s associates the contents of a document produced by the respondents.  Documents provided by the respondents to the applicants pursuant to a section 29 application would be covered by an implied undertaking on the part of the applicants not to use the documents for any collateral purpose.  However, as explained by the applicants to G Lam J in correspondence and at a hearing on 24 August 2017, the contents of the relevant documents had previously been read out in open court in November 2016, and the relevant implied undertaking would, by virtue of RHC Order 24, rule 14A, cease to apply. Insofar as the respondents suggest that the Applicants would breach their implied undertaking and supply documents obtained under this application to any third parties, I am unable to see any basis for such a suggestion.

(2) Further, the respondents relied on the timing of this application and suggested that there might be some kind of collusion or communication between the applicants and LSF (or his associates).  Specifically, the respondents referred to the facts that (a) the Summons herein was issued on 27 April 2018, (b) the Judiciary announced also on 27 April 2018 that G Lam J’s judgment in a specific discovery application made by LSF’s associates against the respondents would be handed down on 30 April, (c) the applicants’ supporting affirmation herein was not filed until 4 May 2018.  Based on the timing of these events, I am not able to infer any collusion or communication between the applicants and LSF (or his associates). Indeed, the applicants have filed evidence to deny any form of collusion with the LSF or his associates.

(3) In any event, the applicants have filed evidence and stated on oath that the documents sought in this application are reasonably required for them to carry out their functions.  I am not satisfied that the matters relied upon by the respondents are sufficient for me to cast doubt on the genuineness of the Applicants’ reasons for needing the documents sought.

27.  For these reasons, I would exercise my discretion and order the respondents to produce the Class 1 Documents.

D2.    Category 2 Documents

28.  In the Summons, the applicants seek, amongst other things, copies of “any other funding agreement and/or consultancy agreement” from the respondents.  This is the reason why the Category 2 and the Category 3 Documents principally deal with “other funding agreements” and “other consultancy agreements” respectively. 

29.  At the hearing, Mr Chen submitted that the Category 2 Documents should include the LSF Funding Agreement and its related documents. I reject this submission.  As pointed out by Mr Siu, the applicants had already issued a summons on 3 March 2017 against the respondents in these proceedings seeking, amongst others, the LSF Funding Agreement and its related documents pursuant to section 29 of the Bankruptcy Ordinance, and that a consent order had already been made for the respondents to provide such documents.  The Category 2 Documents must therefore be confined to funding agreements other than the LSF Funding Agreement.  

30.  There is no dispute that the LSF Funding Agreement was terminated on 25 March 2013.  According to the respondents, the LSF administration is now being funded by a company called China New Investment Ltd (“the New Funder”). Further, Ms Anita Hou of the respondents, who is an officer of the Court, has both stated in correspondence and confirmed on oath that the New Funder is not related to the Bankrupt. 

31.  The applicants submitted that the Category 2 Documents are reasonably required to carry out their functions.  I can well understand the basis of this request if the applicants believe that the Bankrupt is in control of, or has a close connection with, the New Funder.  However, no evidence has been adduced by the applicants to assert that they believe, or have any reasonable suspicion, that the Bankrupt is related to or connected with the New Funder.  It follows that the applicants’ submission is nothing more than a bare assertion.

32.  Instead, Mr Chen submitted that the Court should not accept Ms Hou’s evidence that the New Funder is not related to the Bankrupt. He criticised that Ms Hou has not given any details on how she came to her conclusion, and asked the Court not to accept her bare denial, citing §§26 – 32 of Ng J’s judgment in Re Nanik Dayaram (unreported, HCB 7651/2011, 6 November 2015).  In my view, I do not consider Ms Hou’s evidence as a bare denial and do not accept Mr Chen’s criticism of her evidence. 

33.  Given that (1) the applicants have adduced no evidence to suggest that the Bankrupt is any way connected with the New Funder, and (2) the respondents have stated on oath that the Bankrupt is not related to the New Funder, I consider the applicants have failed to discharge their burden to satisfy the Court the Category 2 Documents are reasonably required for them to carry out functions. 

34.  In the event that I am wrong to conclude that the applicants have not satisfied the Court that the Category 2 Documents are reasonably required for their discharge of duties, I now consider the respondents’ assertion of legal professional privilege (“LPP”) over the Category 2 Documents to resist their production. For the reasons below, I do not consider that the respondents’ claim of privilege is made out: 

(1) In her affirmation on behalf of the respondents, Ms Hou stated:

“ Mr Tang and I would also assert legal advice / litigation privilege over the current / (any) further funding agreements and related correspondence in relation to the claims against LSF et al. As deposed to above, the LSF Trustees enter into funding arrangements to deal with the legal issues arising from the investigations of the LSF case, to seek legal advice and to commence legal actions against LSF and related parties …

The funding agreement would give the readers clues as to the funding mechanism, our litigation strategy, the legal actions we have contemplated, and the advice that we intend to seek from lawyers in relation to the merits of the case, as well as other matters such as overall strategy and tactics.”

(2) As the Court of Appeal stated in Citic Pacific Ltd v Secretary for Justice (No 2) [2015] 4 HKLRD 20 at §76(1), the person claiming LPP should (a) identify the materials over which LPP is claimed; (b) specify, with respect to each of the materials identified, whether the LPP claimed is legal advice privilege or litigation privilege; and (c) support the LPP claims by statement or affirmation setting out the special basis or bases and the full factual context upon which LPP is claimed in respect of each of the materials (“Supporting Affirmation”).

(3) In his oral submissions, Mr Siu only asserted LPP over the funding agreement involving the New Funder (“the New Funder Funding Agreement”).  He likened the New Funder Funding Agreement to the LSF Funding Agreement and submitted that the former would give the readers clues as to the funding mechanism, litigation strategy, overall tactics, contemplated legal actions and advice the respondents intend to seek.

(4) However, the respondents’ affirmation merely asserts what a reader would know on the basis of the disclosure of an unidentified funding agreement; it does not set out the special bases and the full factual context upon which legal advice privilege and litigation privilege are claimed in respect of the New Funder Funding Agreement.  I am therefore not satisfied that the materials from Ms Hou’s affirmation quoted above are sufficient to satisfy the requirements as to what should be contained in a Supporting Affirmation.

35.  For these reasons, I would not exercise my discretion to order the production of the Category 2 Documents.

D3.    Category 3 Documents

36.  In her affirmation filed on behalf of the respondents, Ms Hou stated on oath that Sinowood was the only consultant for the LSF actions, and there is no further consultancy agreement or arrangement in place subsequent to the termination of the LSF Consultancy Agreement in March 2012.  Based on such evidence, the respondents submitted that they have nothing to produce under this category.

37.  At the hearing, Mr Chen fairly accepted that the applicants have no basis to challenge Ms Hou’s evidence on oath.

38.  In these circumstances, it is plain that the applicants cannot establish a prima facie case that the respondents are able to provide the Category 3 Documents.  It follows that an order for production of such documents cannot be made.

D4.    The Proposed Affidavit

39.  In their Summons, the applicants further seek an order that if any of the documents sought “had never been or is no longer in his/her/its custody and/or power, [the respondents should] file an affidavit/affirmation stating in respect of each document whether it had been in his/her custody and/or power, and if it had been, when it was last in his/her custody and/or power and the reason it is now no longer in his/her custody and/or power” (“the Proposed Affidavit”).

40.  Section 29 of the Bankruptcy Ordinance does not confer any power on the court to order a party to file the Proposed Affidavit.  Specifically, section 29(1A) only empowers the court to “require a person referred to in subsection (1), other than the bankrupt, to submit an affidavit to the court containing an account of his dealings with the bankrupt or to produce any documents in his possession or under his control relating to the bankrupt or the bankrupt’s dealings, affairs or property”.  The respondents submitted that the court does not have jurisdiction to order the making of the Proposed Affidavit.

41.  In response, Mr Chen relied on section 99(1) of the Bankruptcy Ordinance, which provides that “[t]he rules and practice of the High Court for the time being for regulating the ordinary civil procedure of the court shall, so far as the same may be applicable and not inconsistent with the provisions of this Ordinance, be applied to bankruptcy proceedings”.  He submitted that the court’s power to order the making of the Proposed Affidavit is contained in RHC Order 24, rule 7, which allows the court to make an order requiring any other party to make an affidavit stating whether any document described in the application is, or has any time been, in his possession, custody or power, and if not, when he parted with it and what has become of it. 

42.  I am unable to accept these submissions.  This application is made by the applicants pursuant to section 29 of the Bankruptcy Ordinance, and the power conferred on the court under RHC Order 24, rule 7 has no relevance in such an application.  I am not satisfied that I have jurisdiction to order the respondents to make the Proposed Affidavit, and I decline to do so.

E.     DISPOSITION

43.  For the reasons given above, I make the following orders on the Summons:

(1) The respondents do, within 14 days of the date of the order, produce the documents set out in paragraph 1 of the Schedule to the Summons.

(2) The remainder of the Summons be dismissed.

(3) A costs order nisi that 50% of the applicants’ costs of the Summons be borne by the respondents to be taxed if not agreed.