LI CHUN BON AND ANOTHER v. CHINA MOBILE HONG KONG CO LTD

DCCJ 617/2017

[2023] HKDC 1533

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 617 OF 2017

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DECISION ON LEAVE TO APPEAL

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1.  On 25 May 2023, I handed down my judgment in this action dismissing the plaintiffs’ claim (“the Judgment”).

2.  This is the plaintiffs’ application for leave to appeal, which is opposed by the defendant.

3.  The application has been set down for paper disposal with directions for written submissions. I am grateful for the submissions received:

(a)  the submissions in support dated 5 July 2023 and the reply submissions dated 2 August 2023 of the plaintiffs’ counsel (Mr Jonathan Lee); and

(b)  the submissions in opposition dated 19 July 2023 of the defendant’s counsel (Mr Ernest Ng and Ms Nicole Chui).

The Judgment

4.  For ease of reference, I shall adopt the abbreviation of the Judgment.

5.  The Building at the center of this dispute comprises three storeys and a roof. At the material time, the G/F premises belonged to the plaintiffs whereas the 2/F premises and the roof belonged to the 2/F Owner.

6.  It was the plaintiffs’ case that the defendant, a mobile network operator, had installed and maintained antenna equipment on the common parts of the Building on the roof without the consent of all the owners. They, as one of the owners, claimed against the defendant for damages and/or mesne profits, based on four causes of action, namely, trespass, nuisance, breach of Special Condition 5(a) of the New Grant, and breach of Clauses 8 and 12 of the DMC.

7.  The claim was denied. It was the defence case that they had the permission of the 2/F Owner to install and maintain the equipment there.

8.  After trial, I made the following essential findings:

(a)  The defendant’s antenna equipment was attached to (i) the inner side of the parapet walls and (ii) the inner side of the vertical wall of the staircase hood on the roof. See paras 7-29 of the Judgment.

(b)  Pursuant to the 2/F Assignment and the DMC, the 2/F Owner has been granted exclusive use, occupation and enjoyment of, inter alia, “the Main Roof”. The expression is not defined in those instruments but, as a matter of construction, it should encompass the inner side of the parapet walls and the inner side of the vertical wall of the staircase hood on the roof. Those parts are therefore not caught by the definition of “common parts” in Cap 344.

The plaintiffs did not dispute the licence agreements between the 2/F Owner and the defendant for the installation and maintenance of the equipment on the roof and the defendant did not commit any trespass. See paras 6(d) & 30-50 of the Judgment.

(c)  There was no nuisance. See paras 51-80 of the Judgment.

(d)  There was no breach of the New Grant. See paras 82-87 of the Judgment.

(e)  There was no breach of the DMC. See paras 88-92 of the Judgment.

9.  In deference to the submissions made, I also commented on the dispute over valuation. For the brief reasons given, I said I generally preferred the evidence of the defendant’s expert and would have awarded the plaintiffs $41,867 had they succeeded in their claim based on trespass and breach of the DMC. See paras 93-104 of the Judgment.

The grounds of appeal

10.  In this appeal, the plaintiffs only take issue with my determination of their trespass claim. There is otherwise no challenge to the other findings in the Judgment.

11.  The two grounds of appeal put forward by them are:

(a)  “The Judge has …, with respect, misconstrued section 2(a) and Schedule 1 of the BMO and misinterpreted the 2/F Assignment and the DMC in holding that the drafters ought to have qualified the term ‘Main Roof’ to exclude the application of the default statutory position.”[1] (Ground 1)

(b)  “[T]he defendant’s expert’s methodology to valuation is fundamentally flawed. The market rental value of A-B-C-E should have been assessed at $209,500 x (554/569) = $203,977 and the plaintiffs ought to have been awarded $203,977/3 = $67,992.”[2] (Ground 2)

Ground 1

12.  According to the draft Notice of Appeal,

(a)  “Section 2(a) & (b) and Schedule 1 of the Building Management Ordinance (Cap 344) (‘BMO’) establish a rebuttable statutory presumption that the parts specified in Schedule 1, including ‘walls enclosing passageways’ and ‘parapet walls’, constitute ‘common parts’ unless the instrument in question has specified or designated otherwise by way of express or implied term, for which stronger indication will be required before the Court will come to the view that there has been such specification or designation.”[3]

(b)  “Since the 2/F Assignment and the DMC only granted the 2/F Owner the exclusive use, occupation or enjoyment of the ‘Second Floor and the Main Roof’, there is no express term specifying or designating ‘the inner side of the parapet walls’ of the Main Roof and ‘the walls enclosing the staircase’ leading up to the Main Roof. Likewise, there can be no implied term to that effect since without such a term, the DMC would still work / not lack commercial or practical coherence in that the 2/F Owner will not be prevented from exclusively using, occupying and enjoying both the Second Floor and the Main Roof.”[4]

(c)  “As such, where the drafter of the 2/F Assignment and the DMC has neither expressly nor impliedly excluded ‘the inner side of the parapet walls’ and ‘the walls enclosing the staircase’ from the common parts, the ‘default position’ as per section 2(a) and Schedule 1 of the BMO will, by definition, apply.”[5]

13.  In argument, the plaintiffs’ counsel submits that my analysis of the trespass claim is “inconsistent with … 3 binding authorities of the Court of Appeal and the natural and ordinary meaning of ‘specified or designated’ (the Chinese version being ‘指明或指定’).” More particularly, he argues that:

(a)  “In The Incorporated Owners of Westlands Garden v Oey Chiou Ling [2011] 2 HKLRD 421, Tang Ag CJHC (as he then was) observed that Schedule 1 serves as a ‘non-exhaustive pointer to what might commonly be regarded as common parts, such that, for example, if a part has been ‘specified in Schedule 1’, the court will require stronger indication before it would come to the view that it has been ‘specified or designated … as being for the exclusive use … of an owner’ (at §20) (emphasis added).”

(b)  “As to what such ‘stronger indication’ entails, in Hollywood Shopping Centre Owners Committee Ltd v IO of Wing Wah Building Mongkok Kowloon [2011] 4 HKLRD 623, the Court of Appeal held that ‘[u]nless there is an express or implied term in the DMC conferring the right to exclusive use occupation and enjoyment of the Canopy to any of the co-owners, the Canopy must be part of the common parts of the Building. There is no specific reference to the Canopy anywhere in the DMC. The clauses in the DMC to which the court’s attention was drawn could not support the contention there was such an implied term’ (at §47) (emphasis added).”

(c)  “More recently, in Kong Wai Hsien v IO of Tai Wai Glamour Garden [2019] 5 HKLRD 672, the Court of Appeal held that the effect of section 2(b) of BMO is that ‘unless there is an express term or implied term in the relevant deed of mutual covenant conferring the right to exclusive use occupation and enjoyment of the external walls to any of the co-owners, the external walls would be part of the common parts of the relevant building’ (at §30(3)) (emphasis added).”

14.  The proposition he puts forward based on those cases is summarized in para 5 of his reply submissions:

“Those cases were not cited so much for their facts but for their elucidation of the general principles and the proper approach to be adopted, which had not been considered or correctly applied by this Court, namely:

(1) Is there an express term specifying or designating the specific part in question ie ‘the inner side of the parapet walls’ and ‘the walls enclosing the staircase’ as being for the exclusive use, occupation or enjoyment of the owner.

(2) If not, is there an implied term specifying or designating ‘the inner side of the parapet walls’ and ‘the walls enclosing the staircase’ as being for the exclusive use, occupation or enjoyment of the owner.

(3) If not, the statutory ‘default position’ applies and those two parts would be deemed to be ‘common parts’ by the virtue of section 2(b) and Schedule 1 BMO.”

15.  After noting there is no express specification or designation in the instruments in this case, he goes on:

(a)  “As for implied term limb, the Court of Appeal in Lo Yuk Sui v Fubon Bank [2019] HKCA 261 has held that a term is to be implied ‘only if it is necessary to make the contract work … The concept of necessity must not be watered down. Necessity is not established by showing that the contract would be improved by the addition’ (at §32) (emphasis added). A more helpful way of putting the question is whether, without the term, the contract would ‘lack commercial or practical coherence’ (at §31).”

(b)  “Based on the facts found by this Court, there is nothing to suggest that without an implied term that ‘Main Roof’ includes ‘the inner side of the parapet walls’ and ‘the walls enclosing the staircase’, the DMC would not work or that it would lack commercial or practical coherence. Plainly, D [sic, the reference should be to 2/F Owner] would not be and was not prevented from exclusively using, occupying and enjoying both the Second Floor and Main Roof. The fact that the DMC may be improved by spelling out that ‘Main Roof’ includes those parts or conversely, that the absence of such specification may be ‘a very imprudent term for one of the parties to have agreed’ (Judgment at §46) (at least from D’s perspective) is irrelevant to both interpretation and implication.”

16.  Thus, what is advocated by the plaintiffs’ counsel in terms of the proposition is an express/implied term analysis and, ultimately, his argument rests on implication of terms.

17.  To start with, it is noted that those authorities were not discussed in the Judgment because they had not been cited at the trial: see para 47 of the Judgment. The plaintiffs were then represented by a solicitor and Mr Lee was not involved. The plaintiffs’ solicitor did not perform any express/implied term analysis and there was no submission pertaining to implication of terms.

18.  As to what constitutes binding authority, Halsbury’s Laws of England, Volume 11 (2020) offers this guidance:

“… The enunciation of the reason or principle upon which a question before a court has been decided is alone binding as precedent. This underlying principle is called the ‘ratio decidendi’, namely the general reasons given for the decision or the general grounds upon which it is based, detached or abstracted from the specific peculiarities of the particular case which gives rise to the decision. What constitutes binding precedent is the ratio decidendi, and this is almost always to be ascertained by an analysis of the material facts of the case, for a judicial decision is often reached by a process of reasoning involving a major premise consisting of a pre-existing rule of law, either statutory or judge-made, and a minor premise consisting of the material facts of the case under immediate consideration.

The concrete decision alone is binding between the parties to it, but it is the abstract ratio decidendi, as ascertained on a consideration of the judgment in relation to the subject matter of the decision, which alone has the force of law and which, when it is clear what it was, is binding; but, if it is not clear, it is not part of a tribunal’s duty to strive to extract a ratio decidendi in order to be bound by it, and it is always dangerous to take one or two observations out of a long judgment and treat then as if they gave the ratio decidendi of the case.” (para 25)

“Statements which are not necessary to the decision, which go beyond the occasion and lay down a rule that is unnecessary for the purpose in hand are generally termed ‘dicta’; they have no binding authority in another court, but they may have some persuasive efficacy.” (para 26)

19.  Turning to the first of the three authorities cited by the plaintiffs’ counsel, the subject matter under discussion in Westlands Garden was an internal non-structural partition wall between two adjoining flats both belonging to the owner/respondent. The issue was whether the partition wall had been specified or designated for the exclusive use of an owner: see para 28. The Court of Appeal held that “… the areas occupied by ‘the flats’ in the building – including the partition walls – were designated under the DMC and the First Assignment ‘for the exclusive use, occupation or enjoyment of the owners’ of the flats concerned. It follows that the wall in the present case falls outwith the first limb of the definition of ‘common parts’ under the Building Management Ordinance (ie para (a) of the definition)”: see para 34.

20.  One of the arguments advanced by the IO/applicant in Westlands Garden was that the partition wall came under “boundary walls” in para 4 of Schedule 1 to Cap 344 and was therefore a common part. The Court of Appeal introduced the statutory scheme in paras 15-22 of the judgment and made reference to Schedule 1 in para 20 (the paragraph now invoked by the plaintiffs’ counsel). It was in that context that the Court of Appeal said “the court will require stronger indication before it would come to the view that it has been ‘specified or designated … as being for the exclusive use … of an owner’”. Eventually, the Court of Appeal rejected the argument and said, “[i]n our opinion, partition wall has not been specified in Schedule 1 of the Ordinance”: see para 27. In other words, Schedule 1 of Cap 344 was not engaged and what was said by the Court of Appeal in relation to parts that are specified in Schedule 1 (ie para 20) was not necessary to the decision.

21.  The plaintiffs’ counsel suggests that the Court of Appeal later elaborated in Hollywood Shopping Centre and Kong Wai Hsien “what such ‘stronger indication’ entails”. But it is not apparent from the reported judgments that the Court of Appeal had done so. There was no elaboration of what “stronger indication” should entail and Westlands Garden was not even cited.

22.  In fact, the Court of Appeal said in Hollywood Shopping Centre that “the statutory definition of ‘common parts’ should have no application to this case, as the DMC was executed on 1 October 1966, before the predecessor of the BMO, namely the Multi-storey Buildings (Owners Incorporation) Ordinance, was enacted on 19 June 1970”: see para 34. So the default position, which is central to the plaintiffs’ proposition, was not engaged in Hollywood Shopping Centre.

23.  Kong Wai Hsien was concerned with the external walls of the building concerned. It was contended that the developer of the building had been given exclusive rights to all the use and enjoyment of the external walls by virtue of clauses 8(b) and (c) in Section II and notwithstanding the definition of “Common Areas” in Section I of the DMC in question: see paras 31, 35 & 37. It is apparent from the judgment that the focus of the Court of Appeal was on the peculiar terms of that DMC (viz the definition of “Common Areas” in Section I, clauses 8(b) and (c) in Section II and the 3^rd Schedule): see paras 40-53. The Court of Appeal did not perform any express/implied term analysis and there was no discussion on implication of terms.

24.  Whilst these cases are authoritative judgments of the Court of Appeal, I do not think they are binding on me for the proposition submitted by the plaintiffs’ counsel.

25.  What is to be noted is that the Court of Appeal invariably came to its conclusion through interpretation of the relevant instrument. The difference between interpretation and implication is explained in Chitty on Contracts, 34^th Edition (2021), Volume 1: General Principle, at para 16-003:

“Interpretation is concerned with ‘what is there’ and involves ‘deciding what the parties meant by what they did say’, whereas implication is concerned with ‘inserting what is not there’ and thus involves ‘deciding whether [the parties] would have said something they did not in fact say had the matter occurred to them’. …

The process of interpretation or construction generally precedes implication and has been described as ‘the precursor of implication’ so that, at least in ‘most cases’, it is only after the process of interpreting or construing the express words of an agreement has been completed that the issue of whether a term is to be implied will be considered by the court.”

26.  In the same vein, the Court of Appeal recognized in Lo Yuk Sui at para 29 that:

“In the light of these authorities, it must be recognized that construction of express terms and implication of terms involve different techniques. Though the overall exercise is an iterative one, in most (if not all) cases it would be appropriate to start from the construction of the express terms by reference to the context and surrounding circumstances known to the parties.”

27.  In the present case, I came to my conclusion through interpretation of the 2/F Assignment and the DMC. I applied the principles of construction authoritatively summarized by the Court of Appeal in 黎偉雄, Sino Channel and Achieve Goal: see paras 45-46 of the Judgment. Those principles continued to be applied by our courts: see recent judgments of the Court of Appeal in Cheng Sing Keung v Chan Ka Hay [2023] HKCA 270 at para 56 and the Court of First Instance in Hong Kong Housing Society v The Incorporated Owners of Heya Star [2023] HKCFI 2142 at para 24. The plaintiffs’ counsel does not dispute the application of these principles.

28.  As the instruments in this case have to be construed against their own scheme and factual and legal background, I do not derive much assistance from the authorities cited by the plaintiffs’ counsel which involved construction of instruments with very different context and background.

29.  Turning to the iterative process of construction performed at para 48 of the Judgment, two points are taken.

30.  First, on the application of Nation Group at para 48(c), the plaintiffs’ counsel submits that:[6]

“… that case had nothing to do with ownership of walls, be it parapet walls or walls enclosing staircase of the roof, but with that of an enclosed floor space and a canopy which protrudes outwards from the external walls of the building (at 436). By contrast, the ‘Main Roof’ in the present case is neither an enclosed floor space nor a canopy which protrudes outwards. The dictum in Nation Group, which was tailored to the specific factual context of that case, cannot be intelligibly adapted and applied to the present case.”

31.  Nation Group was not cited for its facts but for the principle elucidated at 436F-G (quoted below) that as a matter of construction, the grant of exclusive use of an entire floor would give the grantee the entire volume of the floor space of that floor:

“… The correct approach again depends on the proper construction of the agreement. To take the first purchaser as an example, what Madam Chow acquired was one equal undivided 228^th share in the Lot together with the right to the exclusive use of ‘Flat A1 on [the] Seventh Floor’. The reason why no one would suggest that Madam Chow thereby acquired any right to use the underside of the floor slab is because the words ‘Flat A1 on the Seventh Floor’ (or even merely the word ‘flat’) do not, as a matter of construction, encompass the underside of the 7^th floor slab. It may be different if the agreement had been to grant her exclusive use of ‘the concrete floor slab’, but that is not what the contract was about.

The same is true of exclusive use of the ‘entire first floor’ which the purchaser contracted to acquire in the present case. As Godfrey JA pointed out in the Court of Appeal, the parties must be taken to have intended that the purchaser was to be given ‘the right to the exclusive use of the floor and ceiling surfaces of the First Floor and of the air space between them,’ in other words, of the entire volume of the first floor space, but not use of the underside of the concrete slab.”

32.  Recently in Memoran Company Limited v The Incorporated Owners of Mei Hing Mansion [2023] HKCA 841, the Court of Appeal reiterated that:

“… the plaintiff’s case is that it is only the structural concrete part of the Structural Concrete Slab between its under and upper surfaces which is a common part of the Building. It is not the plaintiff’s position that those two surfaces also constitute common parts of the Building. This is consistent with the observation made by Tang ACJHC (as he then was) in Westlands Garden at [50] (referring to Nation Group Development Ltd v New Pacific Properties Ltd (2000) 3 HKCFAR 427 at 436D-F) that as a matter of construction, an owner usually acquired no right to use the structural part of the slab:

‘Nation Group Development Ltd v New Pacific Properties Ltd was not concerned with the ownership of a partition wall. It drew an analogy with a floor slab. It was sufficient for the purpose of Nation Group Development Ltd v New Pacific Properties Ltd, for illustrative purpose, to refer to the surface of the floor slab without going on to consider the ownership of the floor slab. Indeed, it is clear from passages quoted above the Ribeiro PJ’s emphasis was that an assignment of a flat on the 7^th floor:

‘... do not, as a matter of construction, encompass the underside of the 7^th floor slab …’”

33.  As said in Memoran, it was sufficient for the Court of Final Appeal in Nation Group to refer to the surface of the floor slab of the flat for illustrative purpose. The “entire volume of the first floor space” discussed in Nation Group was defined vertically by the under and upper floor/ceiling surfaces and horizontally by the surrounding wall surfaces of the first floor. In the present case, it is not disputed that the 2/F Owner has been granted the exclusive use, occupation and enjoyment of “the Main Roof”. In accordance with Nation Group, the entire volume of “the Main Roof” is defined horizontally by the surrounding wall surfaces on the roof including the inner side of the parapet walls and the inner side of the vertical wall of the staircase hood.

34.  Secondly, the plaintiffs argue in the reply submissions that:

“In [para 48(b)], this Court observed that the drafters should have qualified ‘Main Roof’ to exclude ‘the inner side of the parapet walls’ or ‘the walls enclosing the staircase’ from it for the statutory scheme to kick in. With respect, this is erroneous as the statutory scheme mandates the exact opposite – unless those parts have been specified or designated, ie included by the drafters, the default position is that they form part of the common parts.”

35.  I stand by my decision. As I explained in para 48 of the Judgment, the natural and ordinary meaning of the expression “Main Roof” would encompass the inner side of the parapet walls and the inner side of the vertical wall of the staircase hood. I made reference to the plaintiffs’ premises in para 48(c) to make the point that that interpretation should be apparent to all. The drafter of the 2/F Assignment and the DMC is presumed to know the statutory default position. If he had meant the expression not to cover the inner side of the parapet walls and the inner side of the vertical wall of the staircase hood, he would have provided a definition. In any event, the above is only one aspect of the iterative process. The plaintiffs do not dispute the validity of the other aspects of the exercise which point to the same conclusion.

Ground 2

36.  According to the draft Notice of Appeal:

(a)  “The Judge failed to have due regard to the plaintiffs’ expert’s uncontradicted view that existing licence fee information of the subject property should not be used to conduct the valuation on a direct comparison approach as it is not considered an independent comparable.”[7]

(b)  “Further, the Judge failed to have due regard to the defendant’s expert’s omission to account for the fact that the defendant’s licence agreements also covered use of the Main Roof and the arbitrariness in the defendant’s expert’s methodology of taking a simple average of the licence fee and rateable value of the subject property to arrive at the market rental value.”[8]

37.  Given my conclusion in Ground 1, this ground falls away.

38.  Anyway as I explained in para 93 of the Judgment, I only “briefly” commented on the dispute over valuation in deference to the submissions made. It was not meant to be a comprehensive or exhaustive discussion.

39.  Of the three points taken by the plaintiffs’ counsel:

(a)  The defendant’s expert has in fact explained why he resorted to the licence fee and the rateable value in his valuation: see pp 296-297 of the trial Bundle. First, “no reliable comparable at around the date of valuation can be identified.” Secondly, “the licence fee is considered a good comparable” because “the use permit agreement was established on appropriate lease terms in an arm’s length transaction” and “the parties had each acted knowledgeably, prudently, and without compulsion.”

The criticism of the plaintiffs’ expert was that “[t]he existing licence fee information of the Subject Property should not be used to conduct the valuation as it is not considered an independent comparable”: see p 619 of the trial Bundle.

Thus, the criticism was not “uncontradicted at trial” as the plaintiffs’ counsel has suggested: see para 13(1) of the submissions in support. In para 99 of the Judgment, I rejected the plaintiffs’ criticism for want of supporting evidence.

(b)  It is submitted by the plaintiffs’ counsel that “the scope of D’s 2010 licence agreement also covered the Main Roof [12/149], which completely undermines D’s expert’s criticism that Ps’ expert had used comparables which included a rooftop [17/205]”: see para 13(2) of the submissions in support. “[17/205]” is a reference to the appeal bundle, which is the same as p 618 of the trial Bundle.

At p 618 of the trial Bundle, the defendant’s expert commented on the two comparables adopted by the plaintiffs vis-à-vis the nature of the comparables, the location of the comparables and the duration of the lease involved. With regard to the first aspect, he said, “[t]he nature of the two comparables is the rooftop plus the external wall. Since the Subject Property refers only to the external and internal parapet walls, these two pieces of rental information are totally out of range in this valuation.” In other words, the defendant’s expert was complaining that the plaintiffs’ expert was not comparing like with like.

In my view, that criticism remains valid as the plaintiffs’ comparables, namely, “Roof & External wall of Unison Industrial Centre” and “Roof & External wall of Valiant Industrial Centre”[9] have little to do with the property to be valued comprising the internal parapet walls of the roof marked “A”, “B”, “C” and “E” and the external wall near the ground floor marked “D”: see para 94 of the Judgment.

That criticism has nothing to do with the accessibility of the property to be valued which is a matter of common ground between the experts: see para 1.5.1 of their Joint Statement at p 615 of the trial Bundle.

(c)  In fact, both experts have taken simple average of their comparables. On p 281 of the trial Bundle, the plaintiffs’ expert took simple average of her two comparables in coming to the average “Adjusted Unit Rate” of $2,249 which was used in her valuation. That has attracted criticism of the defendant’s counsel in para 129 of their closing submissions. Almost as a “quid pro quo”, the plaintiffs’ solicitor took issue with “… the unreasoned approach of the PE [sic, this should refer to the defendant’s expert] by arbitrarily take [sic] the average of the licence fee and the rateable value” in para 108 of his closing submissions.

However, it is not apparent from the Joint Statement of the experts at pp 606-625 of the trial Bundle that the experts have taken issue with each other on their methodology in taking simple average of comparables and there was no discussion in that regard. Consequently, the exchanges in closing submissions remain empty talk.

40.  Apart from challenging the defendant’s valuation, the plaintiffs have not sought to defend their valuation against my criticisms: compare paras 97-98 of the Judgment and paras 12 & 15 of the submissions in support. Even if the plaintiffs succeed in belatedly challenging the defendant’s valuation, it does not mean that the plaintiffs’ valuation ($203,977) should be adopted.

41.  Notwithstanding the plaintiffs’ effort, I maintain my preference for the defendant’s valuation.

Disposition

42.  It is common ground that no leave to appeal should be granted unless the appeal has a reasonable prospect of success or there is some other reason in the interests of justice that the appeal should be heard: see section 63A(2) of the District Court Ordinance, Cap 336.

43.  For the above reasons, I do not think the grounds of appeal put forward by the plaintiffs have any reasonable prospect of success. They have not advanced any argument on the “interest of justice” limb. I refuse to grant leave to appeal and their application is dismissed.

44.  Costs normally follow the event. I make an order nisi that the plaintiffs do pay the defendant’s costs of this application, to be taxed on a party and party basis if not agreed.