PETER GEOFFREY DE KRASSEL v. VINCENT JULIA CHU AND OTHERS

    HCA 1151/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1151 OF 2005

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JUDGMENT

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1. The plaintiff claims that the 3^rd, 4^th and 5^th defendants together with the 1^st and 2^nd defendants conspired to defraud him by unlawful means alternatively, conspired to injure him alternatively, committed the tort of unlawful interference with the plaintiff’s trade or business alternatively, induced a breach of the plaintiff’s contract with Messrs Mossack Fonseca (HK) Ltd (“MF”).

2. The 1^st and 2^nd defendants have not defended the claims made against them.  Default judgment was entered against them. 

3. On 7 April 2006 interlocutory judgment was entered against the 2^nd defendant for damages to be assessed with costs.  On 10 January 2008 interlocutory judgment was entered against the 1^st defendant for damages to be assessed with costs.

4. At the pre-trial review on 28 September 2009 it was ordered that there be a split trial of the issues of liability and quantum.

5. This is the trial of the issue of liability on the plaintiff’s claims against the 3^rd, 4^th and 5^th defendants.

6. The plaintiff claims to be the owner of one of two bearer shares in China Associates Ltd (“the Company”), a BVI company.  He claims that at all material times he owned one bearer share representing 50% of the Company with the other bearer share representing the other 50% of the Company being owned by his ex-wife the 1^st defendant Vincent Julia Chu also known as Zhu Liang and Tiffany Chu (“Tiffany”).

7. The plaintiff received his University education in the United States of America (“USA”) where he graduated in law. He subsequently developed an interest in the entertainment industry and moved to Los Angeles where he represented actors, producers, entertainers and studios.  He is an international businessman.

8. Tiffany is the plaintiff’s ex-wife.  The plaintiff and Tiffany met when they were both living in California.  Tiffany was from Shanghai and went to live in California for work and further education.  She had an interest to be involved in the entertainment industry.  Tiffany came from a very influential family in Shanghai with many contacts and much influence.  She was well connected in the fields of television broadcasting and the entertainment industry in Mainland China.

9. The plaintiff and Tiffany developed a common interest and they began business together by taking American rock bands to tour in Mainland China.

10. In 1989 Tiffany was employed by Warner Brothers which required her to move to Hong Kong.  The plaintiff decided to move to Hong Kong with Tiffany to be with her.  At that time the plaintiff was married to his first wife and his move to Hong Kong marked the end of his first marriage.

11. The plaintiff and Tiffany were married in 1994.  

12. The Company was incorporated in the BVI with its former name CAL Hospitality Services Limited on 18 June 1992.  Two bearer shares in the Company were issued on 28 October 1992.

13. The plaintiff was the sole director of the Company until his resignation on 7 October 1993.

14. Tiffany was the sole director of the Company until her resignation on 2 August 1994. CAL International Ltd was appointed as director of the Company on that day.

15. The plaintiff and Tiffany each held one share in CAL International Ltd.

16. There is one child of the family a boy born in December 1996.

17. The 2^nd defendant Wong Hui Laam, Vida (“Vida”) was employed by the Company in 1993.

18. The 3^rd defendant (“D3”) is a qualified US lawyer.  He has practised as a lawyer and business consultant in the USA, Hong Kong and Taiwan for over 25 years.

19. The 4^th defendant (“D4”) and the 5^th defendant (“D5”) are companies incorporated in Hong Kong.  D3 is a director and shareholder of D4 and D5.  At all material times D3 ran his business consultancy in Hong Kong through D4 which primarily involved giving advice to individuals including US expatriates living in Asia upon tax planning, trusts and US investments.  D4 was the corporate vehicle for D3’s business interests in Hong Kong.

20. D5 concentrated more upon D3’s business interest in Taiwan. D5 became a dormant company in July 2000.

21. D3’s brother William Silsby is employed by D4 and assists D3 in his business consultancy in Hong Kong.

22. In 2000 Tiffany filed divorce proceedings in Hong Kong in FCMC 1444 of 2000 against the plaintiff on the grounds of the plaintiff’s unreasonable behaviour.  A decree nisi was granted in May 2000.

23. The plaintiff claims that he and Tiffany each held one of the two bearer shares in the Company. He produced one of the share certificates (certificate number 2) in evidence as exhibit P1 which he had removed from a safe deposit box that he and Tiffany jointly held when they were still married.

24. It is his case that he was the owner of one of the two bearer shares in the Company and that Tiffany was the owner of the other bearer share each of them owning 50% of the Company.

25. There is no dispute that Tiffany first consulted D3 for professional advice in March 1999.

26. The plaintiff’s claims arise out of a series of transactions which on his case deprived him of his interest in the Company that interest being his one bearer share and 50% interest of the Company.

27. There are 4 causes of action relied on by the plaintiff.

28. The primary claim of the plaintiff is for damages for conspiracy to defraud by unlawful means as pleaded and particularised.  It is the plaintiff’s case that in or about March 1999 the defendants or any two or more together conspired to defraud him by unlawful means.

29. As Mr Wright, for the plaintiff, made plain in his opening submissions, the plaintiff’s primary claim is that the defendants conspired to injure the plaintiff by unlawful means as pleaded at paragraphs 5A.1, 22 and 22A of the re-amended statement of claim (“RASC”).  Leave to file and serve voluntary particulars of the overt acts relied on was given in the course of the trial.  The overt acts relied on are set out in the voluntary particulars filed on 11 December 2009 (“the voluntary particulars”).

30. The essence of the plaintiff’s complaint is that D3, D4 and D5 conspired with Tiffany and Vida to divest the plaintiff of his interest in the one bearer share of the Company.  

31. The plaintiff’s alternative claim is that the defendants conspired to injure the plaintiff with the sole or predominant intention to injure the plaintiff and/or causing loss to the plaintiff by damaging or destroying his business as pleaded at paragraphs 5A.3 and 23B of the RASC.

32. The further alternative cause of action of the plaintiff is unlawful interference with trade or business.  The plaintiff claims that the defendants unlawfully interfered with his trade or business thereby causing loss and damage as pleaded at paragraphs 5A.2 and 23A of the RASC.

33. Also in the alternative is the cause of action for inducement of breach of contract where the plaintiff claims that D3, D4 and D5 have knowingly induced MF to break its contractual relationship with the plaintiff causing loss to the plaintiff as pleaded at paragraphs 5A.4 and 23 (sic) of RASC.

34. D3, D4 and D5 deny the very serious allegations made against them and deny that they are liable to the plaintiff for any of the claims made.

The main issues

35. On the claim for conspiracy to defraud by unlawful means the main issues are :

(1)  whether there was any agreement between D3, D4, D5 and other persons to injure the plaintiff;

(2)  if so, whether any such agreement was to take an unlawful action or to do an unlawful act;

(3)  if so, whether such unlawful act or acts caused loss to the plaintiff;

(4)  whether D3, D4 and D5 intended to cause loss to the plaintiff.

36. On the claim for conspiracy to injure with the sole or predominant intention to injure the plaintiff the main issues are :

(5)  whether there was any agreement between D3, D4, D5 and other persons to injure the plaintiff;

(6)  if so, whether D3, D4 and D5 had the predominant purpose or intention to injure the plaintiff;

(7)  whether any such agreement caused loss to the plaintiff.

37. On the claim for unlawful interference with trade or business of the plaintiff the main issues are :

(8)  whether D3, D4 and D5 interfered with the plaintiff’s trade or business;

(9)  if so, whether such interference was unlawful;

(10)     whether such interference caused loss to the plaintiff;

(11)     whether D3, D4 and D5 intended to cause loss to the plaintiff.

38. On the claim for inducement of breach of contract, the main issues are :

(12)     whether there was a breach of the contract between MF and the plaintiff;

(13)     whether D3, D4 and D5 had knowledge that they were inducing the breach of contract;

(14)     whether D3, D4 and D5 intended to induce the breach of contract.

The applicable legal principles

39. As Arden LJ said in Meretz Investments NV and another v ACP Ltd and others [2008] Ch 244 at paragraph 117

“There are two types of conspiracy: conspiracy to injure by unlawful means and conspiracy to injure by lawful means.  The latter requires a predominant intention to injure ……………….. Conspiracy to injure by unlawful means does not require a predominant intention to injure.”

40. And as Nourse LJ said in Kuwait Oil Tanker Co. SAK and another v Al Bader and others [2000] 2 All E R 271 at paragraph 108 :

“A conspiracy to injure by unlawful means is actionable where the claimant proves that he has suffered loss or damage as a result of unlawful action taken pursuant to a combination or agreement between the defendant and another person or persons to injure him by unlawful means, whether or not it is the predominant purpose of the defendant to do so.”

41. On the claim for conspiracy to injure by unlawful means it is incumbent on the plaintiff to prove :

(a)  the nature of the agreement;

(b)       the unlawful means alleged;

(c)  each of the unlawful acts relied on;

(d)       the fact that each act was carried out pursuant to the conspiracy;

(e)  the relevant state of mind of the alleged conspirator. 

42. If a defendant believes that he has a lawful right to do what he is doing he should not be liable for conspiracy to injure by unlawful means (Meretz Investment at paragraph 174 per Toulson LJ).

43. It is trite that a plaintiff who alleges dishonesty must plead and establish facts at trial to show that the defendant was dishonest and not merely negligent.  The Court will not infer dishonesty from facts which have not been pleaded or from facts which have been pleaded but which are consistent with honesty.

44. In Three Rivers DC v Governor and Company of the Bank of England (No.3) [2003] 2 AC 1 Lord Millet said at page 291

“ It is well established that fraud or dishonesty (and the same must go for the present tort) must be distinctly alleged and as distinctly proved; that it must be sufficiently particularised; and that it is not sufficiently particularised if the facts pleaded are consistent with innocence: see Kerr on Fraud and Mistake, 7^{th ed} (1952), p 644; Davy v Garrett (1878) 7 Ch D 473, 489; Bullivant v Attorney General for Victoria [1901] AC 196; Armitage v Nurse [1998] Ch 241, 256.  This means that a plaintiff who alleges dishonesty must plead the facts, matters and circumstances relied on to show that the defendant was dishonest and not merely negligent, and that facts, matters and circumstances which are consistent with negligence do not do so.”

45. An allegation of dishonesty must be established with cogent and compelling evidence. The standard of proof is on a balance of probabilities.

46. However, it is clear that the more serious the allegation, the less likely it is that the event occurred and hence the stronger and more compelling the evidence should be before the court concludes that the allegation is established on a balance of probabilities.

47. In re H & Others (Minors) [1996] AC 563 Lord Nicholls said at page 586

“ The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not.  When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.  Fraud is usually less likely than negligence.”

48. He also said at the same page

“The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.  Ungoed-Thomas J. expressed this neatly in In re Dellow’s Will Trusts [1964] 1 WLR 451, 455: ‘The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it.’ ”

49. And as Lord Hoffman NPJ succintly said in Aktieselskabet Dansk Skibsfinansiering v Brothers & Others (2003) 3 HKCFAR 70 at page 78

“ The correct analysis is that the court is not looking for a higher degree of probability. It is only that the more inherently improbable the act in question, the more compelling will be the evidence needed to satisfy the court on a preponderance of probability.”

50. It is also important to bear in mind what Lord Hoffman NPJ said in Aktieselskabet Dansk Skibsfinansiering at page 83 :

“ It seems to me much safer, at least in the context of an allegation of fraud, to concentrate upon the actual defendants and simply ask whether they have been dishonest.  Judges or juries seldom have any conceptual difficulty in knowing what is meant by dishonesty.”

51. As regards lawyers acting on the basis of their client’s instructions, a lawyer is normally entitled to proceed on the basis of his client’s instructions being correct.  

52. Dillon LJ said in Orchard v South Eastern Electricity Board [1987] 1 QB 565 at page 579

“ It is not the duty of the solicitor to endeavour to assess the result where there is likelihood of a conflict of evidence between his client’s witnesses and those of the other side: per Sachs LJ in Carl Zeiss Stiftung v Herbert Smith & Co (No. 2) [1969] 2 Ch. 276, 297D.”

53. Dankwerts LJ said in Carl Zeiss Stiftung v Herbert Smith (No. 2) [1969] 2 Ch 276 at page 293

“ But claims are not the same things as facts.……….What we have to deal with is the state of the defendant solicitors’ knowledge (actual or imputed) at the date they received payments of their costs and disbursement.  At that date they cannot have had more than knowledge of the claims above mentioned.  It was not possible for them to know whether they were well-founded or not.  The claims depended upon most complicated facts still to be proved or disproved, and very difficult questions of German and English law.  It is not a case where the West German foundation were holding property upon any express trust.  They were denying the existence of any trust or any right to property in the assets claimed by the plaintiff.  Why should the solicitors of the West German foundation assume anything against their clients?”

54. In Competitive Insurance Co Ltd v Davies Investments Ltd [1975] 1 WLR 1240 where it was sought to make a liquidator personally liable on the ground of constructive notice Goff J (as he then was) said at page 1250

“ True it is that he disposed of the trust property but he did so on the basis that there was no trust and that he was acting on nobody’s behalf except his principals. I do not see how this can be regarded as intermeddling in this context.  The most that can be said, even if that be right, is that he was negligent which, in my judgment, is not sufficient.”

55. Blind-eye knowledge involves a deliberate decision not to inquire into matters which are obvious and specific.

56. Lord Scott in Manifest Shipping Co Ltd v Uni-Polaris Insurance CoLtd & others [2003] 1 AC 469 said at page 515

“ ‘Blind-eye’ knowledge approximates to knowledge.  Nelson at the battle of Copenhagen made a deliberate decision to place the telescope to his blind eye in order to avoid seeing what he knew he would see if he placed it to his good eye.  It is, I think, common ground―and if it is not, it should be―that an imputation of blind-eye knowledge requires an amalgam of suspicion that certain facts may exist and a decision to refrain from taking any step to confirm their existence.  Lord Blackburn in Jones v Gordon (1877) 2 App Cas 616, 629 distinguished a person who was ‘honestly blundering and careless’ from a person who

‘refrained from asking questions, not because he was an honest blunderer or a stupid man, but because he thought in his own secret mind―I suspect there is something wrong, and if I ask questions and make farther inquiry, it will no longer be my suspecting it, but my knowing it, and then I shall not be able to recover.’ ”

Lord Blackburn added ‘I think that is dishonesty’. ”

57. And after reviewing the authorities Lord Scott said at page 517 :

“ In summary, blind-eye knowledge requires, in my opinion, a suspicion that the relevant facts do exist and a deliberate decision to avoid confirming that they exist.  But a warning should be sounded.  Suspicion is a word that can be used to describe a state-of-mind that may, at one extreme, be no more than a vague feeling of unease and, at the other extreme, reflect a firm belief in the existence of the relevant facts.  In my opinion, in order for there to be blind-eye knowledge, the suspicion must be firmly grounded and targeted on specific facts.  The deliberate decision must be a decision to avoid obtaining confirmation of facts in whose existence the individual has good reason to believe.”

58. It is clear that in order for there to be blind-eye knowledge the suspicion must be firmly grounded and targeted on specific facts and not mere suspicion which may be no more than a vague feeling of unease.

59. The tort of unlawful interference with trade or business has been given different labels e.g. causing loss by unlawful means or interference with business by unlawful means.  Nothing turns on this.  

60. The essence of the tort is :

(a)  a wrongful interference with the actions of a third party in which the claimant has an economic interest and

(b) an intention thereby to cause loss to the claimant

(OBC Ltd and another v Allan and others [2008] 1 AC 1 per Lord Hoffman at paragraph 47).

61. Unlawful conduct is a prerequisite of liability.  As Lord Nicholls said in OBC Ltd at paragraph 145

“ ....... the common law of England has adhered to the view that ‘unlawful’ conduct is a prerequisite of liability under the tort of unlawful interference with trade..............  In this country intentionally causing damage without using unlawful means is out of itself actionable.”

62. The tort of inducing breach of contract was established in Lumley v Gye (1853) 2 E & B 216. It is based on the principle that a person who procures another to commit a wrong incurs liability as an accessory (per Lord Hoffman in OBC Ltd at paragraph 3).

63. And in Meretz Investment Arden LJ said at paragraph 86

“ The tort of inducing a breach of contract is committed when a person, with the requisite knowledge and intention…..procures or persuades another person to breach his contract with a third party.”

64. The tort consists of the following elements :

(a)  knowledge that the defendant is inducing a breach of contract.  The defendant must know that he is inducing a breach of contract.  As Lord Hoffman said in OBC Ltd at paragraph 39 

“ To be liable for inducing breach of contract, you must know that you are inducing a breach of contract.  It is not enough that you know that you are procuring an act which, as a matter of law or construction of the contract, is a breach.  You must actually realize that it will have this effect.  Nor does it matter that you ought reasonably to have done so.”

(b)   an intention to procure a breach of contract.  The defendant must intend to procure or persuade the third party to break his contract with the claimant.  In OBC Ltd Lord Hoffman said at paragraph 19

“ The mental ingredient is an intention by the defendant to procure or persuade (“induce”) the third party to break his contract with the claimant. The defendant is made responsible for the third party’s breach because of his intentional causative participation in that breach.  Causative participation is not enough.  A stranger to a contract may know nothing of the contract.  Quite unknowingly and unintentionally he may procure a breach of the contract by offering an inconsistent deal to a contracting party which persuades the latter todefault on his contractual obligations.  The stranger is not liable in such a case.  Nor is he liable if he acts carelessly.  He owes no duty of care to the victim of the breach of contract.  Negligent interference is not actionable.”

The witnesses

65. I heard evidence from the plaintiff and D3.

66. I also heard evidence from Peter Bradley (“Bradley”) who at all material times was a solicitor and partner of Messrs Stephen Harwood & Lo (“SHL”), Terence Lau Pok Hoi (“Lau”) who at all material times was an assistant solicitor at SHL, John Mulcahy (“Mulcahy”) who at all material times was a banker with NationsBank which subsequently merged with Bank of America on 30 September 1998 and from Eliza Wu of ICS Trust (Asia) Ltd (“ICS”). 

67. The witnesses gave evidence about matters which occurred some 10 years ago and I have taken this into consideration when considering and evaluating their evidence.

68. Bradley, Lau and Mulcahy were witnesses who were called on behalf of the plaintiff.  They were trying their best to recollect events which took place a long time ago. It was clear from their evidence that their witness statements were not written out by them but were prepared for them by the plaintiff’s solicitors. When they signed their witness statements they did not have the benefit of perusing the many documents that were shown to them in cross-examination.  

69. In assessing the credibility of the plaintiff and D3 I have considered counsel’s submissions.  I have no hesitation in finding that D3 is an honest, credible and reliable witness whose evidence I believe and accept.  I cannot say the same for the plaintiff. I find that the plaintiff is a dishonest, evasive, untruthful and unreliable witness.  Where the evidence of D3 is at variance with the evidence of the plaintiff, I have no hesitation in preferring the evidence of D3 which I accept to the evidence of the plaintiff which I reject.

70. D3 has maintained that at all times whilst acting for Tiffany he was acting as her professional advisor in good faith.  I believe him and have no hesitation in accepting his evidence.

71. Contrary to the plaintiff’s case that he and Tiffany each owned one of the two bearer shares and 50% of the Company, Tiffany has at all times maintained that the Company was wholly owned by her. This is clear from her affirmations filed in the matrimonial proceedings.

72. The plaintiff’s case is that he and Tiffany were involved in various companies as joint owners and in 1995 he instructed Bradley of SHL to restructure the same under the umbrella of a parent company CAL International Ltd (“CAL”).  Bradley confirmed that he carried out the restructuring of the various companies.  He regarded his client as being the owners of CAL which he regarded as the plaintiff and Tiffany.  However, it is clear from the many letters and communications that Bradley had over the years he did not copy letters to Tiffany nor does it appear from the documents that he took instructions from Tiffany.

73. The plaintiff gave evidence that Tiffany did also give instructions to Bradley but I do not believe him.  It seems to me that the plaintiff was the one who was principally dealing with SHL in relation to the affairs of the various companies.  

74. By the letter dated 9 February 1995 from SHL to Mossack Fonseca & Co. (BVI) Ltd they were informed that SHL Services Ltd (“SHL Services”) had taken over the secretarial role of numerous companies and gave a list of the directors, secretaries and shareholders of the companies listed therein. I would observe all that is said about the shareholding of the Company was that there were bearer shares only.  The letter does not support the plaintiff’s case that the Company was jointly owned by the plaintiff and Tiffany.

75. The plaintiff gave evidence that the two bearer shares of the Company were kept in a safe deposit box jointly held by him and Tiffany at Standard Chartered Bank in Hong Kong.  He said that he removed one of the share certificates namely, exhibit P1 sometime after July 1998.  

76. According to the plaintiff, he and Tiffany agreed in the summer of 1997 to set up Communications Asia Ltd (“Communications Asia”) with Philippines cable operators to expand the business and financing was required from bankers.  It was intended that Communications Asia which was to be based in Hong Kong was to become a regional television broadcaster which would have subscribers who would invest. In order for the project to be fulfilled the shares of the Company were to be transferred to CAL Media Holdings Ltd which would sell them to Communications Asia.  It was important for the Company to be involved as it had all the distribution rights in Mainland China and Tiffany had the personal connection in Mainland China.

77. The project was to be effected by three core documents namely a shareholder’s agreement, a share subscription agreement and a share purchase agreement which were prepared by Bradley.  These documents were never executed.

78. Mulcahy said that NationsBank was hired to do the bank financing with Washington Equity to do the placement of shares.

79. Unknown to Mulcahy, however, on 15 July 1998, the plaintiff and Tiffany had already agreed to separate.  As the plaintiff said and I accept, he and Tiffany had drifted apart prior to that date and had agreed to divorce.

80. On that day 15 July 1998 the plaintiff and Tiffany signed an agreement (“the July agreement”) agreeing on the division of cash and stock that the Company was going to receive on the basis of the deal going forward.  If the project went ahead successfully the Company was going to receive US$10 million over a period of time as well as stock in Communications Asia.  By the July agreement the plaintiff and Tiffany agreed to divide the cash and stock in the manner set out therein.

81. By late summer and the fall of 1998 the bankers advised that the time was right to put together the private placement for the Communications Asia deal with a target for the spring of 1999.  Roadshows with prospective investors in the USA started in March 1999.  The strategy was to meet prospective investors in the USA, Hong Kong, Singapore and the Philippines and to close the deal in December 1999.

82. It was submitted, correctly in my view, by Mr Fok SC with Mr Fung, for D3, D4 and D5, that in respect of the plaintiff’s causes of action it is incumbent on the plaintiff to first establish on a balance of probabilities that he did in fact own 50% of the Company.  The complaint is that the plaintiff was deprived of his 50% interest in the Company and that was said to be the purpose of the conspiracy.  

83. As rightly pointed out by Mr Fok there is not a single piece of documentary evidence showing that the plaintiff was in fact the owner of the one bearer share and 50% of the Company.  The only evidence as to this comes from the plaintiff who gave evidence that he and Tiffany were each owners of one bearer share and that 50% of the Company was owned by each of them. I do not believe the plaintiff and reject his evidence.

84. The plaintiff in evidence said that there were documents showing that the two bearer shares were to be held by the plaintiff and Tiffany equally.  These documents were the minutes of the Company in the files which were with the Company kit and minute books and resolutions which were taken away from SHL Services to ICS.  I do not believe the plaintiff’s evidence that the minutes of the Company showed that the Company was jointly owned by the plaintiff and Tiffany or that the two bearer shares were owned by the plaintiff and Tiffany.  The plaintiff never mentioned this in his witness statement.  This would have been an important fact to mention when preparing his witness statement made on 24 November 2006 yet he only mentioned it for the first time in cross-examination years later.  If there were such a document in existence it is inconceivable, in my view, that he would have omitted to mention it in his witness statement.  I do not believe the plaintiff. I am satisfied that he is lying and that he has made this up when giving evidence.  I find that there was no minute showing that the Company belonged to him and Tiffany.  

85. The fact that Bradley and Mulcahy proceeded on the basis that the Company was jointly owned by the plaintiff and Tiffany does not assist the plaintiff.  The impression that Bradley and Mulcahy got about the ownership of the Company came not from Tiffany but from what the plaintiff had informed them.  His own self-serving statements to them do not assist him in establishing that he was in fact the owner of one of the two bearer shares.

86. On the contrary there is clear documentary evidence showing that the whole Company belonged to Tiffany and to no one else including the plaintiff.  Exhibit D1 dated 15 May 1997 is addressed “To Whom It May Concern” and unequivocally confirms that Tiffany is “the holder of the legal and beneficial interest” of the Company.  Exhibit D1 was signed by the plaintiff and, in my view, amounts to a clear admission by the plaintiff that the Company wholly belonged to Tiffany and to no one else including the plaintiff.

87. On the evidence no equivalent document was ever signed by Tiffany confirming that the plaintiff had any legal or beneficial interest in the Company.

88. In cross-examination the plaintiff tried to explain away exhibit D1 by saying that because he was leaving town exhibit D1 was prepared to secure a mortgage to acquire property that they had bought for their office.  He said that exhibit D1 was prepared as he was not going to be around to go to the bank to sign the appropriate documentation.  He said that it was shown by Tiffany to the bank when the mortgage was obtained.

89. The plaintiff’s explanation of why exhibit D1 was prepared is, in my view, incredible. The relevant sale and purchase agreement and the credit facility letter being exhibits D8 and D9 respectively, in relation to the mortgage from the bank were not made contemporaneously but were only made one year after exhibit D1.  Exhibit D8 was made on 27 May 1998 and exhibit D9 was made on 19 June 1998.  The suggestion that exhibit D1 was prepared for the purpose of obtaining a mortgage on a property transaction one year later is, in my view, incredible.  I do not believe the plaintiff and reject his explanation which falls away.

90. The fact remains that the only documentary evidence, signed by the plaintiff, which confirms that the Company belonged to Tiffany and to no one else including the plaintiff is exhibit D1.

91. When exhibit D1 was shown to both Bradley and Mulcahy in cross-examination they said that it would not surprise them to hear that Tiffany’s instructions to D3 were that the Company was her Company alone.  Mulcahy also said that having seen exhibit D1 for the first time in evidence it would have caused him to question what the plaintiff was asserting to him as to being a shareholder of the Company.  It is, in my view, regrettable that exhibit D1 was not shown to Bradley and Mulcahy when their witness statements were prepared. 

92. I would also observe that in the interview given by Tiffany to the International Herald Tribune published on 2 May 1994, Tiffany described the Company as hers.

93. I am not satisfied that the plaintiff has established as a fact that he owned 50% of the Company.  That being so, the plaintiff is unable to establish his causes of action against D3, D4 and D5.

94. Even if, contrary to my findings, the plaintiff were to establish that he did own 50% of the Company, there is no evidence to show that D3 knew that the plaintiff was the lawful holder of 50% of the Company.  D3 maintained that he acted on his client’s instructions in good faith and that his instructions were that the Company wholly belonged to Tiffany.  I have no hesitation in believing him.  I accept his evidence. 

95. On the evidence of D3 which I accept he did not have actual knowledge that the plaintiff owned one of the two bearer shares in the Company.  The most that can be established on the evidence which I accept is that D3 had notice that the plaintiff was making a claim to one of the two bearer shares and therefore to 50% of the Company.  But this was not founded on any specific facts put forward by the plaintiff to D3.  It was contrary to the instructions given to him by his client Tiffany who instructed him that she was at all times the 100% owner of the Company.  As D3 said, and as I accept and find, there was nothing in the instructions given by Tiffany to him in March 1999 which raised a suspicion that the plaintiff might be one of the shareholders of the Company.

96. In evidence the plaintiff accepted that his whole case depended on D3 knowing that he owned 50% of the Company.  The plaintiff says that in his telephone conversation in May 1999 with D3 he mentioned that he had possession of one bearer share in the Company but that he did not know where he had kept it.  This was denied by D3.  On this dispute of fact I prefer the evidence of D3 which I accept to the evidence of the plaintiff which I reject.

97. In my judgment there was neither actual knowledge nor blind-eye knowledge on the part of D3 at the time of the alleged agreement in or about March 1999 that the plaintiff was the owner of one of the two bearer shares and 50% owner of the Company.

98. The criticism was made by Mr Wright, for the plaintiff, that these defendants did not plead a positive case that the Company wholly belonged to Tiffany.  However, that is not something that these defendants need to plead.  It is for the plaintiff to establish first of all that he was in fact the owner of the one bearer share and 50% owner of the Company.  This is denied.  The plaintiff has in my judgment failed to establish that he was the owner of the one bearer share and 50% owner of the Company.

99. The next thing to consider is whether there was any agreement to injure the plaintiff as alleged in or about March 1999.  The plaintiff accepted in evidence that he did not know when in March 1999 the agreement was made nor did he know if it was recorded in writing or whether it was made orally or the terms of the agreement.

100. Was there an agreement between D3, D4, D5 and other persons to injure the plaintiff?    

101. There is no dispute that Tiffany only met D3 for the first time in March 1999.  D3 gave evidence that he was told that Tiffany had been separated from the plaintiff since about 1997 and was seeking a divorce from him.  She was concerned at being dragged into the plaintiff’s various business schemes the majority of which came to nothing. She told him that she owned the Company which she managed and ran and which was in the business of selling television programs to television stations in Mainland China.  She also told him that the plaintiff conducted his own businesses through CAL companies.  He was also told that the plaintiff was not employed by the Company.  Tiffany told him that she and the plaintiff had entered into the July agreement.  She told him that as the plaintiff was not claiming an interest in the Company she did not object to the plaintiff representing himself as her business partner in the project.

102. D3 said that Tiffany approached him in March 1999 because of two main problems.  The first was that she was concerned about being liable for fees incurred by the plaintiff in respect of the Communications Asia deal.  The second was the plaintiff’s claim to an interest in the Company.

103. D3 said that in respect of the second problem his job was to negotiate a settlement with the plaintiff so that it was clear that the Company only belonged to Tiffany.  According to D3 there was no strategy or plan.  He said that they were reacting to events that were happening.  

104. I believe D3 and accept his evidence.

105. D3 denied the existence of an agreement in March 1999 between him and Tiffany to make her the only shareholder of the Company.  D3 was adamant that there was no such agreement.  I believe him and accept his evidence.  I find that there was no such agreement or any agreement to injure the plaintiff in or about March 1999. 

106. It is also incumbent on the plaintiff to establish that the agreement as alleged involved using unlawful means as the means of achieving the purpose of the conspiracy which was to deprive the plaintiff of his shareholding in the Company.

107. What are said to be the unlawful acts?  On the plaintiff’s primary claim, his pleaded case on what the overt acts are in furtherance of the conspiracy to injure by unlawful means are set out in the voluntary particulars as follows :

“ The Plaintiff will rely on the following overt acts:

(1)   On or about 12^th April 1999, [D3] prepared a draft agreement for 1^st Defendant dated 12^th April 1999 providing that: “[The 1^st Defendant] will cooperate, support and assist [the Plaintiff] in the closing of the deal.  [The 1^st Defendant] will place in trust immediately 49% of the shares of [the Company] for our son Austen.  In return [the Plaintiff] hereby waive and disclaim any right, title or interest in [the Company] or its assets.”

(2)   On 7^th May 1999, the corporate kits of both the Company and CALInternational Ltd, the sole director of the Company, were removed from the offices of Stephenson Harwood & Lo by the agent of the 1^st Defendant on the advice of [D3] .

(3)   On 13^th May 1999, the corporate kits were used by the 1^st and 2^nd Defendants to pass resolutions:

(i)    removing CAL International Ltd as director of the Company;

(ii)   cancelling the bearer shares in the Company;

(iii)   issuing new shares in the Company to Mega Global Ltd and the 2^nd Defendant but not to the Plaintiff.

(4)   [D3] prepared draft agreements for the 1^st Defendant dated 19^th May 1999 and 20^th May 1999 which provided that “[CAL International Limited] is currently serving as sole Director of [the Company], a British Virgin Islands company” and “[CAL International Ltd] has held 2 bearer shares of US$1 share each of the Company issued under its former name of CAL Hospitality Services Limited (Certificate Numbers 1-2) and 2 bearer shares of US$1 share each of CAL issued under its present name.”

(5)   On or about 1^st September 1999, [D4] sent a facsimile transmission to Mr. Chan Ming Fong and Mr. Luke Peng of Commerzbank International Trust (Singapore) Ltd (“Commerzbank”), which was signed by [D3] was copied to the 1^st and 2^nd Defendants, advising Commerzbank that [D3 and D4]  had a client who was considering “moving key banking functions to Singapore.”

(6)   On or about 4^th November 1999, [D3] stated in a telephone conversation with Mr. John Mulcahy of Nationsbank (then Bank of America) that the Plaintiff was not a shareholder in the Company, that the Plaintiff no longer represented the Company and that the 1^st Defendant considered the Bank of America’s engagement by the Company to haveended in August 1999 and there was no longer any agreement between the Bank of America and the Company.

(7)   On or about 13^th June 2000, [D4] as agent of the 1^st Defendant sent a facsimile transmission to [MF] which was signed by [D3] stating that: “[The 1^st Defendant is willing to pay the exact amount of US$7,945.00 to you and your affiliated companies (collectively known as “MF”) on the understanding that immediately on receipt of these funds MR (sic.) shall:

1.   Transfer the registered office and all original documents of that BVI company “China Associated, Ltd (“the Company”) as James Wadham and his staff at FIDCO shall direct.

2.   MF shall take any action needed to complete the above transfers and to relinquish and role in the management and affairs of the Company.

3.   MF agrees not to contact the Client, her office or any of her staff about any further payments for those other companies owned by her estranged husband Peter de Krassel, the so called ‘Counselors at large group of Companies’.  They acknowledge that the Client has no involvement with any of the said companies and is only the owner of the Company.” ”

108. The same particulars of overt acts are relied upon in support of the alternative claims of conspiracy to injure and unlawful interference.  All of the acts with the exception of (5) of the voluntary particulars are alleged to be unlawful acts.

109. As I have found that there was no agreement to injure the plaintiff there cannot have been any agreement to do the unlawful acts.  

110. Mr Wright submitted that the events after March 1999 provided cogent evidence of a conspiracy to damage the plaintiff by unlawful means. I go on to consider whether the overt acts pleaded in the voluntary particulars were unlawful acts.

111. As to (1) of the voluntary particulars, D3 accepted that he prepared the draft agreement for Tiffany.  This was a draft to be put forward to the plaintiff by Tiffany for the plaintiff’s agreement.  The plaintiff was free to agree or disagree.  I fail to see how it can be said that the preparation of the draft agreement was an unlawful act on its own.

112. As to (2) of the voluntary particulars, I also fail to see how it can be said that the taking of the corporate kits of the Company and CAL was an unlawful act.  Even on the plaintiff’s own case Tiffany was a 50% owner of those companies. She would have, even on the plaintiff’s case, been entitled to change the secretarial service from SHL Services to ICS. There was in any event no evidence that D3 was involved in the taking of the corporate kits from SHL Services to ICS.  D3 denied a suggestion that he advised Tiffany to arrange for the corporate kits to be collected from the offices of SHL. I believe him and accept his evidence.

113. As to (3) of the voluntary particulars, it is said that the corporate kits were used to pass the resolutions including cancelling the bearer shares in the Company and issuing new shares to Mega Global Ltd and Vida but not to the plaintiff.

114. D3 gave evidence that he was informed by Tiffany in March 1999 that she had visited her safe deposit box and she had been shocked to see that the Company documentation including bearer share certificates had been removed.  The plaintiff was the only other person with access to the box.  Tiffany carried out extensive searches for the missing bearer share certificates and asked the plaintiff and SHL if they knew where they were. I accept his evidence and believe him.

115. The plaintiff gave evidence in chief at the first day of trial that sometime after July 1998 he had removed one bearer share certificate from the safe deposit box namely, exhibit P1 and left the other one there.  He said that he did not tell anybody what he had done.  On his evidence in chief quite clearly he did not tell Tiffany at the time that he had removed one bearer share certificate from the safe deposit box.  However, the following day in cross-examination he changed his evidence.  He said that he had told Tiffany that he had gone to the safe deposit box and removed some items.  He explained that it was due to stress that he had given a different version of events the previous day.  I do not believe him. I do not believe that he ever told Tiffany that he had removed the bearer share certificate or some items from the safe deposit box. I reject his evidence on this.  I find that he did not tell Tiffany that he had removed one bearer share certificate from the safe deposit box. 

116. The reason the plaintiff gave for removing the bearer share certificate from the safe deposit box was that he was going to be travelling and that he was going to be spending more time in the Philippines and the USA concluding the Communications Asia deal.  The reason he gave for removing the bearer share certificate from the safe deposit box is, in my view, unconvincing.  I do not believe him.  It seems to me that if indeed he were the true owner of that share there is no plausible reason why he would not tell Tiffany that he had removed it.  I find that he removed that share certificate from the safe deposit box for his own purpose without telling Tiffany about it to enable him to later assert that he was a 50% owner of the Company when in fact he was not.

117. Lau confirmed in evidence that he had a number of telephone conversations on 19 April 1999 with Tiffany, Vida and Bonnie Ho.  Lau gave evidence that he told Tiffany, Vida and Bonnie Ho in one or more of the telephone conversations that the share certificates of the Company were or might have been lost.

118. On the following day 20 April 1999 Lau by fax wrote to Tiffany, Vida and Bonnie Ho confirming that SHL did not have the two bearer share certificates and asked whether they wanted to instruct a BVI lawyer “regarding the procedures in respect of lost bearer certificates”.

119. It is clear that steps had to be taken to regularize the affairs of the Company. The plaintiff chose not to inform Tiffany that he had taken a bearer share certificate out of the safe deposit box.  Since the missing share certificate could not be found, steps had to be taken to regularize the Company’s affairs.  

120. D3 said that Tiffany informed him that she did not want the plaintiff’s solicitors to have control over the Company’s secretarial functions.  In view of her pending divorce she wanted to distance herself and the Company from the plaintiff and his solicitors SHL.  A number of alternative company secretarial companies were recommended by D3 to Tiffany and she chose ICS to replace SHL Services.  I believe D3 and accept his evidence.

121. I find that the corporate kits were removed from SHL Services to ICS as Tiffany no longer wanted SHL Services to have control over the Company’s secretarial functions.

122. On 13 May 1999 ICS Secretaries Ltd became the Company’s secretary.  Written resolutions of the Company were passed which included resolutions to cancel the existing bearer shares and issuing new registered shares to Mega Global Ltd a company established by Tiffany and Vida.  There was also a resolution to remove CAL as director of the Company and to appoint Tiffany as the sole director in its stead.

123. Both the plaintiff and D3 gave evidence of a three way telephone conversation in mid May 1999 involving the plaintiff, Tiffany and D3.

124. The plaintiff said that in that conversation D3 referred to the bearer share certificate having been lost but that he told D3 that he had the bearer share. He just did not know where it was at the time.  He was adamant that he had told D3 that he had the bearer share certificate but wasn’t sure where it was and that it was either in the safe deposit box or in the Philippines or the USA or the office but he wasn’t sure where.  This was never mentioned in his witness statement.  The whereabouts of the missing bearer share certificate was an important matter to deal with yet it was not mentioned in his witness statement.  

125. D3 denied that the plaintiff had told him that he had the bearer share certificate in the telephone conversation.

126. On this dispute of fact I prefer the evidence of D3 which I accept to the evidence of the plaintiff which I reject.  I do not believe the plaintiff. I believe D3.  I find that the plaintiff did not mention to D3 or to Tiffany in that conversation that he did have the bearer share but did not know where it was at the time.  

127. It is clear that Tiffany, Vida, Lau and D3 all thought that the bearer share certificates were lost.  That being so, it was, in my view, reasonable to take the step of cancelling the bearer shares and the issue of shares so as to arrange the shareholding of the Company in accordance with Tiffany’s instructions that the Company was solely hers.

128. As I have found that the plaintiff has failed to establish that he was a 50% owner of the Company, there was nothing unlawful in the matters alleged under (3) of the voluntary particulars.

129. I find that the resolutions that were passed on 13 May 1999 were not unlawful acts.

130. As to the matters alleged in (4) of the voluntary particulars, it seems to me that the statement in the draft agreements prepared by D3 that “[CAL] is currently serving as sole Director of [the Company]” was inaccurate at the time in view of the resolutions that had been passed on 13 May 1999.  However, the statement that the Company “has held 2 bearer shares…..” is not, in my view, an inaccurate statement.  In view of the resolutions that had been passed on 13 May 1999 the bearer shares were cancelled but prior to that time the Company had held two bearer shares.  As Mr Fok submitted, and as I accept, the past tense of “has held” rendered the statement at least equivocal and not a clear and unambiguous representation.

131. D3 gave evidence that by the time of the mid-May telephone conversation with the plaintiff the bearer shares had already been cancelled and that the plaintiff knew that.  D3 said that he had been told by Tiffany that the plaintiff knew that the resolutions had been passed.  D3 also said that it was clear from his conversation with the plaintiff that the plaintiff knew that Tiffany had been looking for the bearer shares and had not found them and that action had been taken to “clean up” the corporate situation.  He told the plaintiff that as part of the “clean up” of the Company the plaintiff needed to sign a document to complete the files at ICS.

132. I believe D3 and accept his evidence.  I find that the plaintiff knew at the time of the telephone conversation in mid-May 1999 that the bearer shares had been cancelled.

133. I am unable to accept the submission made on behalf of the plaintiff that the clear impression given by the draft agreements is that the shares which are to be placed in trust are the bearer shares.

134. I am satisfied that there was no dishonesty on the part of D3 in stating in the draft agreements that “[CAL] is currently serving as sole Director of [the Company]”.  This was, as I have said, an inaccurate statement at the time in view of the resolutions that had been passed.  This was due to carelessness rather than dishonesty on the part of D3.  I so find.

135. As to (5) of the voluntary particulars, this is not alleged to be an unlawful act on the part of D3, D4 and D5.  The fax of 1 September 1999 sent to Commerzbank was a fax signed by D3 introducing Tiffany to Commerzbank.  In my judgment the fax was entirely consistent with the innocent explanation of D3 as a professional advisor to Tiffany introducing a third party banker to provide banking services to Tiffany in Singapore rather than as part of any alleged conspiracy.

136. As to (6) of the voluntary particulars, it is alleged that in the telephone conversation with Mulcahy on or about 4 November 1999 D3 informed him that the plaintiff was not a shareholder of the Company, that the plaintiff no longer represented the Company and that Tiffany considered the Bank of America’s engagement by the Company to have ended in August 1999 and there was no longer any agreement between Bank of America and the Company.  In view of the instructions given by Tiffany to D3 which I find that he honestly believed and on which D3 acted the matters relied on were not unlawful in my judgment.  

137. I would observe that in any event Mulcahy never relied on what he had been told by D3 as Bank of America continued to represent Communications Asia in seeking to raise capital to fund the project.  Also, as I have said, Mulcahy in evidence said when shown exhibit D1 in cross-examination for the first time that it would have caused him to question the plaintiff’s assertion of being a shareholder of the Company.

138. As to (7) of the voluntary particulars, the sending of the fax to MF on or about 13 June 2000 is said to be an unlawful act as being a misrepresentation that Tiffany was the sole owner of the Company in order to secure the transfer of the registered office of the Company to Samoa.  There is no representation in the fax that Tiffany was the sole owner of the Company.  There is a representation that Tiffany has no involvement with any of the plaintiff’s companies and “is only the owner of the [Company]”.  I find that the 3^rd defendant honestly believed his instructions from Tiffany that this was so.  I am unable to accept that this was an unlawful act.

139. The plaintiff has failed to establish that the acts relied on were unlawful acts.

140. It seems to me and I so find that the acts of D3 were entirely consistent with the innocent explanation of D3 as a professional advisor to Tiffany acting in accordance with her instructions which he honestly believed rather than as part of the alleged conspiracy.

141. Issues (1) and (2) are resolved against the plaintiff.  As there was no agreement to injure the plaintiff by unlawful means, no loss was caused to the plaintiff by the alleged unlawful acts.  Issues (3) and (4) are also resolved against the plaintiff.

142. The plaintiff’s primary claim falls to be dismissed.

143. The alternative claim of conspiracy to injure requires the plaintiff to establish that there was a predominant intention on the part of D3, D4 and D5 to injure the plaintiff.

144. This was denied by D3 and I accept his evidence that there was never any intention to injure the plaintiff.

145. I observe that the plaintiff’s pleaded case is that the defendants conspired with “the sole or predominant intention of injuring the plaintiff”.  It is alleged that the motivation of the defendants “was a wholly unreasonable and unjustified victimization and hatred of the plaintiff ” (paragraph 23B of the RASC).  The plaintiff has failed to establish this in my judgment.  

146. D3 did not know the plaintiff and they had never met.  D3 only met Tiffany in March 1999 as a client for professional advice.  There is no plausible reason why in or about March 1999 D3 would victimize and hate the plaintiff.  In evidence the plaintiff suggested that the reason was money but, in my view, that is unconvincing.  I reject it.  D3 at all times acted as a professional advisor for professional fees which he billed for and in respect of which he was paid.  The bills have been produced in evidence.  There was nothing else in it for him or for D4 and D5.  In my view the fees charged were reasonable fees for the professional work done as fully particularised in the bills rendered.

147. I find that there was never any intention to injure the plaintiff on the part of D3, D4 and D5. 

148. Issues (5), (6) and (7) are also resolved against the plaintiff.

149. In my judgment the plaintiff has failed to establish his alternative claim of conspiracy to injure.

150. Reliance was placed by the plaintiff on the judgment of Judge Gill in FCMC 1444 of 2000 in the District Court given on 19 August 2002 on the plaintiff’s application for ancillary relief in the matrimonial proceedings.  The hearing before the judge was unopposed as Tiffany did not appear to contest the application by the time of the hearing before the judge although the divorce and interlocutory matters before then had been bitterly fought.  Tiffany had filed affirmations and at a pre-trial hearing directions were given for deponents to attend for cross-examination.  As she did not appear at the hearing before Judge Gill, Tiffany’s affirmations could not be used as evidence without leave under the Matrimonial Causes Rules. The hearing before Judge Gill proceeded on the evidence adduced by the plaintiff as well as his oral evidence which was one-sided as the judge recognized.  The plaintiff’s evidence was not tested by cross-examination and no case was advanced on behalf of Tiffany. Although Tiffany maintained in her affirmations that the Company was her company which she owned her evidence could not be used and was rejected by Judge Gill.  He proceeded to make ancillary orders on the basis of the plaintiff and Tiffany each owning 50% of the Company.

151. The hearing before Judge Gill was one-sided.  The plaintiff’s evidence was never tested in cross-examination and Tiffany’s affirmations were rejected and not relied on.  Exhibit D1 which, as I have said, was a clear admission by the plaintiff that the Company wholly belonged to Tiffany was never mentioned by the judge in his judgment.  It seems that he did not consider this important evidence.

152. The judge went further.  He found (at page 25 of the judgment) that the letters drafted by D3

“ taken in sequence are a clear indication that the plan was to have the [plaintiff] distanced and then removed entirely from [the Company], and then pretend he never had any involvement―See [D3’s] draft of 12 April 2000, reproduced in part earlier in this judgment.  I mention as an aside this demonstrates appalling professional misconduct on [D3’s] part.”

153. In my view what the judge said as set out above was unwarranted and wholly unfair to D3.  He was not a party to those proceedings and was not given a chance to defend himself before the very serious finding was made against him. 

154. Judge Gill’s judgment does not assist the plaintiff.  I place no reliance on it. 

155. As regards the alternative claim for unlawful interference, the same overt acts as set out in the voluntary particulars are relied on. I have found that the plaintiff has failed to establish the conspiracy by unlawful means and it follows, in my view, that this alternative claim must also fail.  Issues (8), (9), (10) and (11) are also resolved against the plaintiff.

156. As for the alternative claim for inducing breach of contract, the plaintiff’s case is that the contract which was breached was a contract between the plaintiff and MF whereby they agreed to act as agents for the Company.  No such contract was adduced in evidence.

157. In evidence the plaintiff said that his contract with MF was removed from the office by Tiffany and Vida.  I do not believe him.  This was never mentioned in his witness statement.  

158. I do not believe that the plaintiff had a personal contract with MF.  It is highly unlikely, in my view, that MF would have entered into a personal contract with the plaintiff rather than with the Company to whom it was providing services.  The plaintiff has said that he was the client of record with MF but I do not believe him.  If indeed he were the client of record there would have been no difficulty in him obtaining a copy of the contract from MF but this has not been done.

159. I also find on the evidence of D3 which I accept that there was no intention on the part of D3 to procure a breach of any contract that MF might have had with the plaintiff. 

160. In my judgment the plaintiff has failed to establish that there was a personal contract between him and MF which was breached.  The plaintiff has also failed to establish that D3, D4 and D5 had knowledge that they were inducing a breach of the same or that they intended to procure a breach of the same.  Issues (12), (13) and (14) are also resolved against the plaintiff.

161. The plaintiff’s claim for inducing a breach of contract also fails.

162. I dismiss the plaintiff’s claims against D3, D4 and D5.

163. I also make an order nisi that the plaintiff do pay D3, D4 and D5’s costs of the action to be taxed if not agreed, with a certificate for two counsel.