CHAN YUK LAN v. CHIA WAI HING and Another

1993, No. A9174

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. This is a dispute between two cousins over a property known as Flat C on the 10th Floor, Block 30, Mei Foo Sun Chuen ("the Property").

FACTS: COMMON GROUND

2. The Plaintiff's mother and the 1st Defendant's father are sister and brother. The two families were close even though the 1st Defendant's family live in Malaysia.

3. The Plaintiff is a businesswoman who in early 1991 had interests in a beauty salon business, a property agency and a foreign exchange company.

4. The 1st Defendant is a resident of Malaysia. She assisted her father Mr. Chia Nyet Min ("Mr. Chia") in the running of his business in Sandakan, Sabah, Malaysia, although at some stage she was also a partner in a fashion business.

5. The 2nd Defendant is a private company incorporated in Hong Kong, with 10,000 issued shares. The 1st Defendant is registered as the shareholder of 9,999 shares. The remaining 1 share is held by Chan Koon Sang, the Plaintiff's younger brother.

On the basis of two resolutions dated 15 January 1991 and 16 January 1991 respectively, the 1st Defendant was given sole control over the 2nd Defendant company's property and was appointed the sole signatory of the 2nd Defendant's bank account.

6. Prior to the matters in dispute, the Plaintiff was the owner of the Property which was subject to a bank mortgage. The Plaintiff and her family had previously lived in the Property, but at some stage she had let it to a Japanese lady tenant. In January 1991 the Plaintiff and her family were living in another flat in the same block, viz. Flat A on the 5th floor ("5A").

7. In January 1991, the Plaintiff needed money as her foreign exchange company was operating at a loss. Her thoughts turned to making use of the Property to raise the funds she needed.

8. In January 1991 a document entitled "Preliminary Agreement for Sale and Purchase" dated 14 January 1991 was signed by the Plaintiff as "Vendor" and the 1st Defendant on behalf of the 2nd Defendant as "Purchaser".

9. On the face of this document, the Plaintiff agreed to sell and the 2nd Defendant agreed to buy the Property for HK$1,600,000. A deposit of HK$280,000 was stated to have been paid and receipt thereof is acknowledged by the Plaintiff.

10. It is not disputed that on 14 January 1991, a sum of M$100,000 brought by the 1st Defendant from Malaysia to Hong Kong was exchanged for HK$283,500. It is also not disputed that the 1st Defendant handed over this sum of money to the Plaintiff on the same day.

11. On the strength of the Preliminary Agreement for Sale and Purchase, the 2nd Defendant applied for and obtained a loan from Citibank. The 1st Defendant signed a personal guarantee for this loan. The loan was for a net sum of HK$1,280,000.

12. Upon completion, this sum was paid to the Plaintiff who, after discharging her original mortgage, obtained a net sum of HK$200,000 - HK$300,000.

13. On 12 February 1991, an amount of HK$80,000 was remitted from Malaysia on behalf of the 1st Defendant to the Plaintiff's account. The Plaintiff admits receiving this remittance.

14. In March 1991, mortgage repayments to Citibank commenced. Prior to the dispute between the parties, these repayments were made in the following manner: the Plaintiff would first deposit cash into the 1st Defendant's current account with Citibank, and Citibank would then automatically transfer the amount required for the mortgage repayment from the 1st Defendant's current account to the 2nd Defendant's loan account, from which the mortgage repayment was deducted by the bank.

15. Citibank's statements for the 1st Defendant's current account and for the 2nd Defendant's loan account were sent directly to the 1st Defendant in Malaysia.

16. In May 1991, Mr. Chia came to Hong Kong and became aware that the Plaintiff was occupying the Property.

17. On 1 June 1991, the Plaintiff sold 5A, and she and her family have been living at the Property since.

18. In September 1991, the 1st Defendant came to Hong Kong. It is common ground that the Property was discussed, and in the course of discussion, the Plaintiff gave the 1st Defendant two slips of paper containing various figures and the photocopies of certain banking documents. I will refer to these documents in detail later in this Judgment.

19. In the course of this visit, the 1st Defendant gave the Plaintiff a cheque dated 9 September 1991 for $30,693 which the Plaintiff presented.

20. No further money changed hands. By 1992, a dispute had arisen between the parties concerning the Property, culminating in these proceedings being instituted in 1993.

PLAINTIFF'S CASE

21. Briefly, the Plaintiff's case is that contrary to the contents of the Preliminary Sale and Purchase Agreement and the Assignment which she executed, she had never intended to sell the Property, whether to the 1st Defendant or the 2nd Defendant.

22. The purported transfer of the Property was part of a scheme she devised to raise money from the Property, and the 1st Defendant was a willing and knowing participant in that scheme.

23. On the Plaintiff's case, the beneficial interest in the Property never passed to the 2nd Defendant, but if it did pass, the 1st Defendant held her shares in the 2nd Defendant as her (the Plaintiff's) trustee only.

24. The Plaintiff's evidence was that as she was in need of funds in January 1991, she asked her uncle, Mr. Chia for a loan. Mr. Chia agreed to lend her M$100,000, which was the HK$283,500 which the 1st Defendant gave her on 14 January 1991. This was an entirely separate transaction from the purported sale and purchase of the Property.

25. The loan of $283,500 not being enough, the Plaintiff wished to raise further funds from the Property. However she found that, as she had acquired the Property relatively recently, her bank would not offer her much additional finance by way of further charge. She ascertained however that if a fresh purchaser were to apply to Citibank for a loan, a loan of about 80% on the market value of HK$1,600,000 (approximately $1,280,000) could be obtained.

26. She then devised a scheme whereby a company would be set up. This company would purportedly buy the property from her but the purchase would in fact just be a sham transaction to take advantage of Citibank's larger loan amount for a mortgage by a fresh purchaser.

27. She suggested to Mr. Chia that the 1st Defendant be made the majority shareholder of this company and he agreed. The scheme was duly put through.

28. The remittance in February 1991 of HK$80,000 from the 1st Defendant was in repayment of a loan of the same amount that she had made to the 1st Defendant during her visit in January. Again, it had nothing to do with the purported sale and purchase of the Property.

29. As for the cheque for $30,693 in September 1991, the 1st Defendant had presented her with the cheque made up as to HK$30,000, as payment for the free board and lodging that the Plaintiff had offered the 1st Defendant and her family in the past, and as to $693 as a sum chosen by the 1st Defendant for payment of cosmetics. These cosmetics had been given by the Plaintiff to the 1st Defendant and she (the Plaintiff) had told the 1st Defendant that they cost between $600 and $700. So, again, the amount of $30,693 had nothing to do with the purported sale and purchase of the Property.

DEFENDANTS' CASE

30. The Defendants' case is straightforward. There was a genuine agreement on the part of the 1st Defendant and her father Mr. Chia to buy the Property through the vehicle of the 2nd Defendant company.

31. The agreement is evidenced in the Preliminary Agreement for Sale and Purchase. The 1st Defendant paid the Plaintiff $283,500, of which $283,000 was acknowledged as receipt in the Preliminary Agreement itself. The balance of $3,500 was for part payment of sundry expenses, such as legal fees, stamp duty and expenses incurred in acquiring the 2nd Defendant company.

32. The application to Citibank for the mortgage was a genuine application made by the 2nd Defendant.

33. The remittance of HK$80,000 in February 1991 was in part payment of the sum owing to the Plaintiff for the balance of the purchase price, and the sundry expenses referred to above.

34. In May 1991, Mr. Chia became aware that the Plaintiff was occupying the property rather than the Japanese lady tenant but since he had not expected to get vacant possession until the end of the year in any event, he raised no objection.

35. In September 1991, the 1st Defendant came to Hong Kong and there was a settling of accounts between her and the Plaintiff. On the 1st Defendant's calculation, $30,693 was owed by her up to that stage and this was duly paid to the Plaintiff by the cheque of 9 September 1991.

36. So, on the Defendants' case, all three payments of $283,500 in January 1991, $80,000 in February 1991 and the $30,693 in September 1991 were for payment of the Property.

37. After the end of 1991, the 1st Defendant asked the Plaintiff to deliver up the premises but the latter refused. She asked for further settling of accounts but the Plaintiff would not do so.

38. The 1st Defendant says the Plaintiff subsequently offered to re-purchase the Property but they were unable to arrive at any agreement on the price. The relationship between the Plaintiff and the 1st Defendant became strained, leading to the present proceedings.

39. The 2nd Defendant counterclaims possession of the Property from the Plaintiff. Although there is also a claim for mesne profits for the Plaintiff's occupation of the Property, the parties are agreed that mesne profits from January 1992 until delivery up of vacant possession should be at the monthly rate equivalent to the monthly mortgage instalments paid and payable by the 2nd Defendant to Citibank.

FINDINGS

40. The Plaintiff clearly has the onus of establishing that, contrary to the documents she executed in 1991, there was never any true agreement for sale and purchase of the Property.

41. I find that the Plaintiff has failed to discharge this onus. I must say that I found the Plaintiff's story to be quite unworthy of belief, especially when tested against the documentary evidence.

42. For ease of reference, I shall set out in chronological order the particular pieces of evidence which led me to reject the Plaintiff's case and to hold for the Defendants.

State of Property in January 1991

43. The Defendants' case was that they had been told by the Plaintiff that the Property was tenanted in January 1991. If that were the case, the Property would fetch a lower price if the Plaintiff had offered it for sale on the open market.

44. The Plaintiff alleged that the Property was vacant.

45. However, the Plaintiff's bank statements showed that she continued to receive monthly deposits of the rental amount until March 1991.

46. Under cross-examination, the Plaintiff at first said she did not remember if the deposits (paid in by Autopay) were the rents, but was unable to explain what else those Autopay deposits could have been for.

47. Then in re-examination, she claimed to remember that the tenant had damaged the Property, and she agreed to pay those 3 months rent as compensation.

48. I find that the Plaintiff cannot be believed. If such damage had been done to the Property and such an agreement reached, I find it impossible that she would have failed to remember it when she was first questioned about the deposits. I find that the bank statements refute the Plaintiff's claim that the Property was vacant in January 1991 and are consistent with the Property being tenanted then.

Correspondence of dates of Payment of money and Execution of Preliminary Agreement for sale and purchase of the Property

49. On 14 January 1991, the 1st Defendant caused the M$100,000 which she had brought to Hong Kong to be exchanged into HK$283,500. It is not disputed that this amount was given by the 1st Defendant to the Plaintiff on the same day.

50. The date appearing on the Preliminary Agreement for Sale and Purchase of the Property was also 14 January 1991.

51. The fact that these dates correspond corroborates the Defendants' case that HK$280,000 was paid by the 1st Defendant to the Plaintiff as deposit for the sale and purchase.

52. Presumably to avoid the effect of this correspondence in dates, the Plaintiff attempted to show that the Preliminary Agreement was signed sometime after 14 January 1991 and was only backdated to that date.

53. At first her evidence (in chief) was that she did not discuss the scheme for a company to buy the Property until "several days" after the exchange of the Malaysian funds, i.e. "several days" after 14 January 1991. If that were so, the Preliminary Agreement would not have been signed until after 14 January 1991.

54. In cross-examination, she said that she first discussed her scheme with Mr. Chia (a) 1-2 days after she received the Malaysian funds on 14 January 1991 (b) on the night of 14 January 1991 and then (c) again, 1-2 days after 14 January 1991.

55. Even on her own version that the Preliminary Agreement was backdated, she said revealingly that the date 14 January 1991 was chosen because "I took money from her on 14 January so I suggested to date this [the Preliminary Agreement for Sale and Purchase of the Property] the 14th of January which she agreed".

56. If the money had nothing to do with the Preliminary Agreement for sale and purchase, there would have been no reason for her to backdate the Preliminary Agreement and there would have been no need for her to seek the 1st Defendant's agreement to any date she (the Plaintiff) might choose to enter.

57. The evidence of Chan Koon Sang did not assist the Plaintiff's case. In cross-examination, he was most evasive about the date of the Agreement.

58. Significantly, he agreed that he had on 14 January 1991 signed as director of the 2nd Defendant a document accepting the resignation of the Company Secretary.

59. I find that that resignation was indeed signed on 14 January 1991. Apart from the admission of Chan Koon Sang, no evidence was called and no reason was proffered on behalf of the Plaintiff as to why the Company Secretary should need or wish to backdate the document which it signed.

60. If the resignation was signed on 14 January 1991, that must mean that the process of acquiring the 2nd Defendant company commenced on or before 14 January 1991.

61. The sole purpose of the company was for the sale and purchase of the Property. There being no evidence that the company was acquired before the agreement or that the name of the 2nd Defendant company was added subsequently to the Preliminary Agreement, the Agreement (which contained the 2nd Defendant company's name) must have been signed on 14 January 1991 and not later.

62. As I have said, the correspondence in the dates when the money changed hands and when the Preliminary Agreement for sale and purchase of the Property was signed corroborates the Defendants' case and deals another damaging blow to the Plaintiff's credibility.

Amount of Deposit

63. It is common ground that on 14 January 1991, the 1st Defendant gave HK$283,500 to the Plaintiff.

64. The amount of deposit stated in the Preliminary Agreement for sale and purchase of the Property was $280,000, that is, the same amount less $3,500.

65. The 1st Defendant says that the $3,500 was in part payment of "sundries", such as legal fees and expenses connected with the acquisition of the Property through a company. It was taken into account when she settled accounts with the Plaintiff in September 1991.

66. The Plaintiff on the other hand said that she had never received a deposit of $280,000, or indeed of any amount. She asserted in cross-examination that generally the amount of deposit paid depended on the purchaser's financial position and the requirement of the vendor, and there was no hard and fast rule.

67. When cross-examined as to why she chose this figure of $280,000 as the purported deposit received, she at first said that she had to choose a large enough figure so that the bank would not look into the 1st Defendant's resources to pay the balance of deposit.

68. Later she also said that it was because she liked the figures "2" and "8". Whilst I accept that these 2 numbers are regarded by superstitious elements amongst Chinese people as lucky numbers, I do not accept the Plaintiff's explanation.

69. The purchase price for the Property was $1,600,000. The bank was going to provide a net loan of $1,280,000. That left $320,000.

70. If there was really a scheme to obtain the loan from the Bank by way of a sham agreement for sale and purchase of the Property, one would have expected the Plaintiff to have inserted the entire figure of "$320,000" as having been received by her, to avoid the Bank inquiring into the 1st Defendant's resources for paying the balance of deposit.

71. The Plaintiff would have been particularly anxious to do so, when (on her case) the 1st Defendant had no financial resources in Hong Kong.

72. Accordingly, I find that it was no coincidence that after the 1st Defendant had paid $283,500 to the Plaintiff, the Plaintiff acknowledged receipt of $280,000 as deposit for the sale and purchase of the Property. The 1st Defendant did indeed pay and the Plaintiff did receive $280,000 as deposit for that sale and purchase.

1st Defendant's control of 2nd Defendant and execution of guarantee

73. The 1st Defendant's case that there was a genuine sale and purchase of the Property to her through the vehicle of the 2nd Defendant is supported by the fact that she had sole control over the 2nd Defendant.

74. Pursuant to resolutions signed by the 1st Defendant and Chan Koon Sang as directors of the 2nd Defendant on 15 January and 16 January 1991, the 1st Defendant was given sole control over the Property and was made sole signatory of the 2nd Defendant's bank account.

75. The 2nd Defendant's bank statements were sent directly to her in Malaysia.

76. I cannot believe that the Plaintiff would allow that to happen if the 2nd Defendant was really her company. Even if she did not wish the Bank to know her connection with the 2nd Defendant, the other director of the company was her younger brother Chan Koon Sang. She could easily have arranged for him to be the controlling director and sole signatory, and for the bank statements to be sent to his address, if only for greater administrative convenience, since the 1st Defendant was resident in Malaysia.

77. Under cross-examination, the Plaintiff claimed not to be aware of the resolutions. However, Chan Koon Sang admitted that he knew that the 1st Defendant had the sole right to operate the 2nd Defendant's bank account. Since Chan Koon Sang's involvement in the matter was orchestrated by the Plaintiff, I find it impossible to believe that the Plaintiff was not aware of the facts that the 1st Defendant had control of the Property and the 2nd Defendant's bank account.

78. A further fact pointing to the beneficial ownership of the 2nd Defendant is that the 1st Defendant signed a personal guarantee with Citibank for the 2nd Defendant's loan.

79. The 1st Defendant was an experienced business woman who had been assisting her father in his business for 8 years at the time these events took place.

80. I cannot believe that she would have signed a personal guarantee to guarantee the 2nd Defendant's repayment of a substantial loan, if the 2nd Defendant was controlled by the Plaintiff whom she knew to be in financial difficulties.

Settling of accounts

- Exchange memo and deposit slips evidence sale

81. I now come to the events of September 1991.

82. The Defendants have produced a number of documents with certain writing on them which the Plaintiff admits to be hers. These documents include:-

(a) a copy of the Exchange Memo for the exchange of the M$100,000 to HK$283,500, on which has been written "Deposit from Wai Hing 30C 10/F";

(b) a copy of a Deposit Slip of Citibank dated 1 March 1991 evidencing the deposit of HK$15,101 into the 1st Defendant's current account on which has been written "Deposit $2,000 more to pay the mortgage instalment for Wai Hing";

(c) a copy of a similar Deposit Slip of Citibank dated 9 April 1991 evidencing the deposit of HK$16,200 into the 1st Defendant's current account on which has been written "Paid $3,100 more to pay the mortgage instalment for Wai Hing";

(d) a copy of a similar Deposit Slip of Citibank dated 2 May 1991 evidencing the deposit of HK$16,000 into the 1st Defendant's current account on which has been written "Wai Hing".

83. In my view, these documents on their face clearly support the Defendants' case that there had been a genuine sale and purchase, and that the Plaintiff's payments of the mortgage repayments were made on behalf of the 1st Defendant.

84. The Plaintiff attempted to explain the words she had written by claiming that the 1st Defendant was pressuring her to repay the alleged loan of M$100,000.

85. She then told the 1st Defendant that if she (the Plaintiff) could not repay the loan within 3 years, then she would either sell the Property and repay Mr. Chia from the proceeds, or she would sell the Property to Mr. Chia at market price, treating the loan as a deposit.

86. She wrote on the Exchange Memo to placate the 1st Defendant and her father. As for the Deposit Slips, she was trying to show the 1st Defendant how much extra would be required every month should the latter take over the Property in 3 years time.

87. I do not accept the Plaintiff's version. There is nothing in the words she wrote on (a) to (d) to indicate that there was anything contingent. The language is clearly consistent with these words being notes written to remind herself what those documents were.

88. She had said in evidence that she had a habit of writing larger Chinese characters on documents where she had trouble reading smaller English type. I have no doubt that she wrote those notes on (a) to (d) out of this habit, to remind herself what those documents were.

- Plaintiff's handwritten slips

89. Apart from the above, there were also:-

(e) a slip of paper (at p.130 of the Defendants' Bundle of Essential Documents) containing figures showing a deduction of 899 from 14,000, with the 899 shown to be made up of rates 420, service fees 409 and another figure of 70. It is agreed that the 899 was meant to show the total outgoings for the Property;

(f) another slip of paper (at p.128 of the Defendants' Bundle of Essential Documents) showing the following:-

90. In my view, whilst (e) may be neutral in itself, (f) supports the Defendants' case. They represent a list of all the moneys the Plaintiff had received from the 1st Defendant and her father together with the dates of receipt.

91. The Plaintiff's explanation was that she was listing out, not what she had received from them, but what she owed them. The 2nd item of $80,000 was "interest" on the 1st and 3rd items for 3 years. There was, she says, no calculation of this interest. She simply liked the number "8" and she happened to be looking at the Credit Advice for the 1st Defendant's repayment of $80,000 in February 1991.

92. I find that evidence quite incredible. Business people (especially business people in financial difficulties) do not agree to pay a particular amount as interest (even to relatives) just because they happen to like certain figures, or because they happen to be looking at an unrelated sheet of paper. They do calculations, even of the most rudimentary nature.

- The figure of $30,693

93. Finally, there is the odd figure of $30,693 which the 1st Defendant paid the Plaintiff by cheque dated 9 September 1991.

94. The Defendants' evidence is that this was the balance owing to the Plaintiff after she did a calculation on a piece of paper (at p.126 of the Defendants' Bundle of Essential Documents).

95. I shall not set out the contents of that piece of paper here, but I note that all the figures on the paper were backed up by the documentary evidence except one figure of $9,800 as "lawyer's rebate".

96. The 1st Defendant says that she was told by the Plaintiff soon after her arrival in Hong Kong in September 1991 that the lawyer had given a rebate of $9,800. The Plaintiff denies that she had ever done so. No evidence was adduced by either party to support or refute the giving of such a rebate.

97. The Plaintiff's explanation for the figure of $30,693 is that the 1st Defendant had presented her with the cheque, made up as to $30,000 as payment for the free board and lodging that the Plaintiff had offered the 1st Defendant and her family in the past, and as to $693 as a sum chosen by the 1st Defendant for payment of cosmetics. These cosmetics had been given by the Plaintiff to the 1st Defendant and she (the Plaintiff) had told the 1st Defendant that they cost between $600 and $700.

98. In my view, it is quite unbelievable that the 1st Defendant would choose to pay such an odd figure as $693 if the Plaintiff had only said that the cosmetics were between $600 and $700. Normally, one would expect that either $600, or $700, or the median figure of $650 would be adopted.

99. Accordingly I reject the Plaintiff's explanation of this figure and accept the 1st Defendant's version, notwithstanding the lack of evidence to support the rebate.

100. In doing so, I have noted the point made by the Plaintiff's counsel that the sum of $30,000 had already been paid into the 1st Defendant's current account before the account was settled and the cheque made out. I have noted the 1st Defendant's explanation for this under cross-examination, and accept her explanation.

Conclusion

101. In conclusion, the Plaintiff has failed to discharge the onus of proving that the sale and purchase was other than genuine.

102. In arriving at this conclusion, I have reminded myself that the 1st Defendant herself was a willing participant in the misrepresentation to Citibank that the Property was vacant at the time of the sale and purchase, so as to obtain better terms for the loan.

103. I have also reminded myself that an amount of only $80,000 was remitted in February 1991 when at least $100,000 was owing to the Plaintiff ($40,000 being the balance of deposit and $67,000 for legal fees). The 1st Defendant says that the Plaintiff only asked for a remittance of $80,000, which I find surprising.

104. However, in the main, the evidence of the 1st Defendant was clear and cogent, and her father Mr. Chia was a particularly impressive witness. Such discrepancies as there were in their evidence were minor.

105. The Plaintiff's case was however so devoid of credibility, when tested against the documentary evidence as analyzed above, that I have no hesitation in rejecting it on the facts.

Illegal Contract

106. For the sake of completeness, I shall deal with the Defendants' secondary position, which is that even on the Plaintiff's case, the scheme devised by the Plaintiff was illegal, as she was deceiving Citibank into granting a loan on the basis that there was a genuine sale and purchase of the Property.

107. I accept the Defendants' contention that on the Plaintiff's own case, a deception was practised on Citibank. The application for loan was on the basis of a transfer of ownership, but on the Plaintiff's case, the beneficial ownership of the Property never passed to the 1st or 2nd Defendants.

108. There is no evidence from Citibank as to whether they would nevertheless have advanced the loan had they known of the scheme, but it is revealing that when the Plaintiff was cross-examined as to whether she had informed the staff of Citibank of her idea to form a company to purchase the property from herself, her answer was "Of course not".

109. The Court should not lend its aid to a claim for the retransfer of property purportedly sold when the transfer was part of an illegal scheme, and that scheme has been achieved (Chettiar v Chettiar [1962] AC 294). Here the scheme has been achieved because the loan has been advanced by Citibank.

110. It was the Plaintiff who had to rely on and disclose the scheme as part of her case to obtain the retransfer of the Property or for a declaration that the 1st and/or 2nd Defendants held the Property on trust for her, notwithstanding the contents of Preliminary Agreement for sale and purchase of the Property and Assignment.

111. Once this disclosure was made by the Plaintiff, the Court was bound to take notice of it, even in the absence of any pleading by the Defendants (Chettiar v Chettiar, p.302).

RELIEF

112. In the light of my findings above, I dismiss the Plaintiff's action.

113. On the Defendants' Counterclaim, I order that the Plaintiff do deliver up vacant possession of the Property to the 2nd Defendant.

114. Counsel for the Defendants has asked that vacant possession be delivered up forthwith or at the latest within 1 month. Counsel for the Plaintiff has asked that the Plaintiff be given 6 months to vacate.

115. In view of the fact that the Plaintiff's children are living at the Property and as I have heard no evidence that the 2nd Defendant is in urgent need of the Property, I order that there be a stay of execution of the order for vacant possession for a period of 5 months from the date of this judgment on condition that the Plaintiff keep up repayment of the mortgage repayments on the 2nd Defendant's behalf. The period of 5 months should take it up to the Christmas school holidays.

116. As far as the 2nd Defendant's claim for mesne profits is concerned, the parties are agreed that mesne profits from January 1992 until delivery up of vacant possession should be at the monthly rate equivalent to the monthly mortgage instalments paid and payable by the 2nd Defendant to Citibank.

117. I make no order for interest as no amounts are outstanding.

118. I make an order nisi that the costs of the action be paid by the Plaintiff to the Defendants, and the parties are content that the costs should be on a party and party basis.

Dated 17 July 1995