POON LAI BING v. GOLD DRAGON LTD t/a CLUB PARIS AND ANOTHER

CACV 136/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 136 OF 2007

(ON APPEAL FROM DCCJ 2299 OF 2006)

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J U D G M E N T

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Hon Cheung JA :

1. This is an appeal by Golden Dragon Limited trading as Club Paris (‘Club Paris’) and Oriental Las Vegas Night Club Limited trading as New Oriental Palace Night Club (‘New Oriental’) against the decision of H H Judge Chow who struck out part of their amended defence and counterclaim.  Leave to appeal was granted by a single judge of this Court.

Background

2. Poon Lai Bing (‘Ms Poon’) is the plaintiff in High Court Action No. 4315 of 2003.  This action was initially commenced in the Labour Tribunal but later transferred to the High Court.  Ms Poon claimed that she was an employee of New Oriental i.e. the 2^nd defendant who subsequently transferred her employment to Club Paris i.e. the 1^st defendant.  She claimed that Club Paris and New Oriental were related parties.  She claimed that her contract of employment was wrongfully terminated by Club Paris and she sued it and New Oriental jointly and severally for damages arising from the wrongful termination of her contract of employment. 

3. Club Paris also commenced an action in the High Court against Ms Poon.  These two actions were ordered to be consolidated.  It appeared, however, that there were separate pleadings in respect of these two High Court actions after consolidation. 

4. By a consent order dated 15 June 2005, Mr. Registrar Chan of the High Court gave leave to Club Paris and New Oriental to amend their defence and counterclaim in High Court Action No. 4315 of 2003.  The amendment was made on 16 June 2005. 

5. By an order dated 9 May 2006 the consolidated actions were ordered to be transferred to the District Court as District Court Action No. 2299 of 2006.  The pleadings in their existing form were continued to be used in the District Court action.

6. The trial of the consolidated actions which was listed for 10 days was scheduled to commence in the District Court on 16 April 2007.  The parties were unable to proceed with the case on that date because the judge previously assigned to handle this case had to excuse himself due to conflict of interest.

7. H H Judge Chow was then assigned to deal with this matter and the trial began on 18 April 2007.  On 18 April 2007 in the course of his opening, Mr. Khaw, counsel for Ms Poon, submitted that certain parts of the amended defence and counterclaim regarding fraud, dishonesty and forgery did not contain the necessary particulars and were thus liable to be struck out.  The Judge, however, indicated that he would not deal with any application to strike out without having a summons before him.  The matter was then adjourned to the next day namely, 19 April 2007 when Ms Poon filed a summons for the application to strike out.  This was opposed by counsel for Club Paris and New Oriental.  The Judge then adjourned the argument to the following day. 

8. On Friday 20 April 2007 the parties made their submission on striking out and the Judge gave the decision on Monday 23 April 2007. 

9. Club Paris and New Oriental then applied for leave to appeal against the decision and adjourn the trial pending their application for leave to appeal.  The next three days were taken up on this matter.  On 27 April 2007 the Judge refused to grant leave to appeal to Club Paris and New Oriental.  As the trial was originally fixed until 27 April 2007, the Judge then adjourned the trial to another date. 

The amended defence and counterclaim

10. In the amended defence and counterclaim Club Paris claimed that it was entitled to terminate the employment of Ms Poon by reason of her misconduct.  The reasons that were relied upon by Club Paris were two-fold :

(1)	Ms Poon had misappropriated the proceeds of sale of scrap beer cans belonging to Club Paris (‘the misappropriation issue’).
(2)	She had falsified attendance records resulting in Club Paris overpaying her (‘the attendance record issue’).

11. The application to strike out the amended defence and counterclaim was in respect of the following paragraphs : 14, 15, 24, 25, 26, 27, 29 and 30 and relief number (2) of the prayer. 

12. The basis for striking out was that these paragraphs referred to fraud, dishonesty and forgery and insufficient particulars were provided for by the defendants. 

13. The Judge, apart from paragraph 15, struck out those paragraphs I have referred to earlier.  They related to the attendance record issue.  I would set out the relevant paragraphs including paragraph 15 :

‘	14.	The 1st and 2nd Defendants aver that the Plaintiff as an employee of the 1st Defendant had during a protracted period of time falsely reported and furnished to the 1st Defendant Attendance Records in which the days and hours of work of hers were inflated, that such conducts are serious misconducts, inconsistent with the due and faithful discharge of the Plaintiff’s lawful duty and contrary to the Code of Conduct and that in the premises, the Plaintiff had during a protracted period of time forged or caused to forge the Attendance Records rendering her able to claim wages from the 1st Defendant.
	15.	The 1st and 2nd Defendants further aver that in breach of the established rules and regulations referred to in paragraph 6 hereinabove, the Plaintiff used the name of Mr. Chan Kwok Leung, on many occasions, to oppress the Accounting Department of the 1st Defendant to reimburse her money incurred for the purchase of miscellaneous items without first obtaining the approval of Miss Ma Yuk Wan and such purchase should have been done through the Department of General Affairs of the 1st Defendant.  The following is a table showing payments made by the Accounting Department of the 1st Defendant to the Plaintiff without the approval of Miss Ma Yuk Wan.
		[TABLE]
				AMOUNTS	NUMBER OF OCCASIONS
		November to December 2000		34,496.50	42
		January to December 2001		188,393.50	318
		January to December 2002		226,636.24	279
		January 2003		387.00	2
		Total		449,913.24	641	’
	17.	Paragraphs 7 and 8 of the Statement of Claim are denied.  The 1st and 2nd Defendants avers that the Plaintiff had duly received her salary for the whole month of February and for part of the days she worked in March 2003;, and that the Plaintiff applied for and obtained in February 2003 two advance loans of salary HK$3,000.00 and HK$3,500.00 totalling HK$6,500.00; and that the Plaintiff had duly received her share of tips for March 2003.  Both tThe 1st Defendant and the 2nd Defendants further aver that by reason of the Plaintiff’s misconducts, namely theft and/or fraud and/or forgery and/or dishonesty and/or breach of the 1st Defendant’s rules and regulations, the Plaintiff was and is not entitled to claim annual leave pay and long service payment due to her during her period of service under the First Agreement and the Second Agreement.  The 1st Defendant further
	24.	An electronic fingerprint time recorder which would keep a record of the staff attendance was installed at the premises of the 1st Defendant in August 2001.  The Plaintiff and the staff of the 1st Defendant have been required to record their attendance at work in the electronic fingerprint time recorder since 16 August 2001.  It was subsequently discovered that there were discrepancies between the electronic fingerprint record and the Attendance Records as to the Plaintiffs attendance at work.  The forgery of the Attendance Records was perpetrated by the Plaintiff for the purpose of concealing the Plaintiff’s absence from work and thus enabling the Plaintiff to claim full wages from the 1st Defendant.
	25.	It is apparent from the electronic fingerprint record that the Plaintiff would have been dismissed on 17th October 2001 or 13th March 2002 due to her three consecutive days’ absence from work on 15th, 16th and 17th October 2001 or 11th, 12th and 13th March 2002 had she not concealed her absence from work by oppressing the staff of the 1st Defendant to make false Attendance Records for her.  All subsequent wages paid to the Plaintiff from 18th October 2001 to 20th March 2003 or 14th March 2002 to 20th March 2003 were therefore false claims which the Plaintiff would not have been entitled to but for the aforesaid deliberate concealment and forgery by the Plaintiff.  As a result, the 1st Defendant was defrauded to have paid the Plaintiff a cumulative sum of HK$23,800.00 x (12+5+3/31) = HK$406.903.23 or HK$23,800.00 x (12+7/31) = HK$290,974.19.
	18.26.	Alternative to paragraph 25 hereinabove, Dduring the period from 1st August 2001 to 19th March 2003, as recorded in by comparing the 1st Defendant’s electronic fingerprint records staff attendance register with the subsequent Attendance Records, it havehas been revealed that the Plaintiff had intentionally and dishonestly inflated her report on actual days and hours of work, so much so that the Plaintiff had overclaimed; and the 1st Defendant had thereby been misled defrauded and overpaid, her salary by a cumulative total sum of HK$325,936.30321,460.33.  The said sum of HK$325,936.30321,460.33 should have been refunded by the Plaintiff to the 1st Defendant upon the Plaintiff’s termination of employment on 20th March 2003, but the Plaintiff had not done so.
	19.27.	Alternative to paragraph 25 hereinabove,Ffor the service of the Plaintiff for part of the month of March 2003, the Plaintiff was and is entitled to a sum of HK$11,236.326,308.33 being salary due to her calculated by the 1st Defendant in arrears.  When this sum of HK$11,236.326,308.33 is set off against the refund of theor overpaid salary due from the Plaintiff to the 1st Defendant, the Plaintiff owed and still owes the 1st Defendant a sum of HK$314,699.98315,152.00 being the salary overclaimed and overpaid fraudulently obtained by the Plaintiff.
	29.	The 1st Defendant counterclaims against the Plaintiff for the sum of HK$406,903.23 or HK$290,974.19 being salary fraudulently obtained by the Plaintiff as pleaded in paragraphs 24 and 25 hereinabove.
	22.30.	Alternatively,Tthe 1st Defendant counterclaims against the Plaintiff for the sum of HK$314,699.98315,152.00 being salary overclaimed fraudulently obtained by the Plaintiff and overpaid by the 1st Defendant as pleaded in paragraphs 1924, 26 and 27 aforesaid.
	Prayer No. (2)		overpayment of salary of HK$406,903.23 or HK$290,974.19 or 314,699.98HK$315,152.00 as pleaded in paragraphs 1929 and 30 hereinbefore;’

The correspondence

14. On 13 April 2007 which was three days before the commencement of the trial, Messrs M. K. Lam & Co (‘M. K. Lam’) solicitors for Ms Poon wrote to the solicitors for the defendants, Messrs Foo & Li (‘Foo & Li’), stating that allegations of fraud, forgery and dishonesty referred to in the amended defence and counterclaim were not supported by particulars.  They required Foo and Li to supply particulars and threatened to strike out the pleadings. 

15. On the next day, namely, 14 April 2007, Foo and Li wrote back and said that the amended defence and counterclaim contained all the necessary and material particulars to support the defendants’ claim for fraud, forgery and dishonesty but they further stated that :

‘

Insofar as the remaining paragraphs are concerned, they are all related to the “Attendance Record Incident”.  Without admitting that the pleadings on the “Attendance Record Incident” is short of material particulars, we are instructed to provide you with the following particulars to assist you to comprehend our clients’ case on the “the Attendance Record Incident”.’

16. The following particulars were provided :

‘	(1)	Two electronic fingerprint time recorders were installed at the Personnel Department and 鐘房 in August 2001.
	(2)	The purpose of the installation was to keep an accurate record of staff attendances at work.
	(3)	By virtue of the Notice of all the staff of Club Paris dated 15th August 2001, all the staff of Club Paris were required to record their attendances not only by punching their work cards, but also by fingerprint registration via either of the 2 electronic fingerprint time recorders.  There was no exception to this requirement and Poon Lai Bing was under a duty to register her attendances at work by either of the 2 electronic fingerprint time recorders.
	(4)	The 2 electronic fingerprint time recorders were functioning properly and recorded accurately the information of the staff attendances at work.
	(5)	Ng Ching Yu, Chow Shuk Man and Wong Tsz Shun Walter would prepare Staff Attendance Record / Report from the printout of the electronic fingerprint time recorders every half a month.
	(6)	The Staff Attendance Record / Report compiled would be signed by Poon Lai Bing and then submitted to the Accounting Department for payroll purpose.
	(7)	In August 2001, Poon Lai Being asked Ng Ching Yu, Chow Shuk Man and Wong Tsz Shun Walter to turn a blind eye and to fill in wrong information in the Staff Attendance Record / Report after they discovered the true Poon Lai Bing’s attendances recorded in the electronic fingerprint time recorders.  They were threatened by Poon Lai Bing to forge the Staff Attendance Record / Report of Poon Lai Bing notwithstanding that the Staff Attendance Record / Report did not reflect the information or data contained in the electronic fingerprint time recorders.
	(8)	Appendices A1 to A20 to the Accountancy Expert Report compiled by Ms To Tsz Wan, Vivien dated 20th October 2004 created in reliance predominantly on the print-out from the electronic fingerprint time recorders and the evidence of Chan Oi Hop and Shek Kin Chung, clearly showed that on numerous occasions as particularized in the aforesaid Appendices, Poon Lai Bing did not turn up at work and did not work full hours of work.
	(9)	By reason of the matters aforesaid, Poon Lai Bing fraudulently and dishonestly procured her subordinates to forge the Staff Attendance Record / Report in relation to her attendances at work in order to induce the Accounting Department of Club Paris to accept the contents therein as truth for payroll purpose.
	(10)	Induced thereby, Club Paris paid Poon Lai Bing full wages.
	(11)	By virtue of clause 5(4) of the Code of Conduct, any staff of Club Paris who was absent from work without cause for 3 consecutive days would be regarded as having left and terminated his/her employment.
	(12)	But for the fraud, forgery and dishonesty, Poon Lai Bing’s contract of employment would have been terminated on 17th October 2001 or an earlier date.
	(13)	In the premises, Club Paris has overpaid Poon Lai Bing wages and suffered loss and damage.
	(14)	The quantum of Club Paris’ claim for wages fraudulently obtained by Poon Lai Bing has been pleaded in paragraphs 25 and 26 of the Amended Defence and Counterclaim which are alternative bases of Club Paris’ claim.’

The Judge’s reasoning

17. In acceding to the striking out the Judge stated that :

‘

11.

The Defendants say that without admitting that the pleading on the “Attendance Record Incident” is short of material particulars they provided to the Plaintiff with particulars to assist the Plaintiff to comprehend the Defendants’ case on the “Attendance Record Incident”. These particulars include the abovesaid subparagraphs (1) to (7).  Therefore these sub-paragraphs are clearly not part of the pleadings.  So whether the relevant paragraphs contain full and necessary particulars relating to fraud, forgery, dishonesty or not, one has to look at the actual pleadings themselves.  After looking very carefully at the relevant paragraphs as applied for by the Plaintiff, I find that it is abundantly clear that the relevant paragraphs only contain vague and general statements relating to fraud, forgery or dishonesty, with no particulars specifically pleaded to support their case.  Therefore, these paragraphs are liable to be struck out.  Accordingly I order that these paragraphs be struck out.’  (emphasis added)

Particulars of fraud

18. I accept fully the requirement that where fraud is relied upon it must be distinctly pleaded with the utmost particularity : Aktieselskabet Dansk Skibsfinansiering v Wheelock Marden & Co Ltd & Ors (‘ADS’) [1994] 2 HKC; Three Rivers District Council and others v. Governor and Company of the Bank of England (No. 3) [2003] 2 AC 1 at 291 and Peconic Industrial Development and Another v. Yu Ka Hong Paul & Another CACV No. 285 of 2005.

19. As Bokhary JA (now Bokhary PJ) observed in ADS ‘none of the basic rules of pleading have anything to do with technicality’ but ‘all of them have everything to do with practical justice’.  He identified the purpose of pleadings in the early part of his judgment :

‘	(1)	inform the other side of the nature of the case they have to meet as distinguished from the mode in which that case is to be proved;
	(2)	prevent the other side from being taken by surprise at the trial;
	(3)	enable the other side to know what evidence they ought to be prepared with and to prepare for trial;
	(4)	limit the generality of the pleadings, the claim and the evidence;
	(5)	limit and define the issues to be tried, and as to which discovery is required; and the hands of the party so that he cannot without leave go into any matters not included (although if the opponent omits to ask for particulars, evidence may be given which supports any material allegation in the pleadings).’

The pleadings should not be struck out

20. In my view the Judge should not have struck out the relevant parts of the amended defence and counterclaim. 

Discretion wrongly exercised

21. The Judge was of course exercising a discretion when he ordered the relevant parts of the amended defence and counterclaim to be struck out.  It is well established that an appellate court would not interfere with the exercise of a discretion in the first instance unless the discretion was wrongly exercised in the sense that, for example, the judge had taken irrelevant factors into account or ignored some relevant factors. 

22. In my view the Judge had clearly wrongly exercised the discretion when he refused to consider the particulars provided by Foo & Li on 14 April 2007.  While they were not voluntary particulars in the sense that they were provided before the request was made, they were in every sense particulars of the pleadings.

Allegations sufficiently pleaded

23. To start with, the allegations of fraud, dishonesty and forgery of the attendance records pleaded in paragraph 14 must be read together with paragraphs 24 and 25 which particularized the misconduct of Ms Poon.  They pleaded that :

(1)	Ms Poon was required to record her attendance at work with the electronic fingerprint time recorder;
(2)	The electronic records showed that there were two occasions when she was consecutively absent from work for three consecutive days.
(3)	There were discrepancies between the electronic record and the attendance record.
(4)	Ms Poon had concealed her absence from work by ordering the staff of the 1st defendant to make false attendance records for her.  She signed the records.
(5)	The forgery of the attendance records was for the purpose of concealing Ms Poon’s absence from work and thus enabling her to be paid full wages from the 1st defendant.

24. The particulars provided on 14 April 2007 further showed :

(1)	the identities of the staff of the 1st defendant who were responsible for the making of the attendance records.
(2)	the names of the staff threatened by Ms Poon for the purpose of forging the attendance records.
(3)	details of the discrepancies of the records.

25. In my view fraud and dishonesty had been sufficiently pleaded.  Without outgoing into the technical meaning of forgery, the pleading together with the particulars provided clearly showed that Ms Poon had forged the attendance records in the sense that she signed a document which contained false information to be supplied to her employer as if it was a truthful document.  Ms Poon was sufficiently informed of the nature and particularity of the allegations.

Factual allegations 

26. In any event, even if for the purpose of argument, the Judge was still not satisfied that sufficient particulars had been given of the allegations of fraud, dishonesty and forgery, he should merely strike out those words and the allegations relating to the falsification of the attendance records should be left intact.  These are factual allegations pertinent to the issue of misconduct of Ms Poon in the employment.  Irrespective of whether Club Paris could succeed on fraud, dishonesty or forgery, it would be entitled to rely on these factual allegations in support of its termination of Ms Poon. 

Reason for the striking out

27. Mr. Khaw informed the Court that he was instructed to act for Ms Poon in place of another counsel at a very late stage of the proceedings.  Upon perusing the paper he considered that the amended defence and counterclaim lacked particulars and he immediately caused M. K. Lam to request particulars by the letter of 13 April 2007.  He, however, considered that the particulars provided by Foo and Li were still not sufficient.  He was concerned with the length of the trial and the numerous witnesses to be called.  He was of the view that if the allegations were struck out then the issue would be narrowed and the length of the hearing would be greatly reduced.

28. While I accepted what Mr. Khawsaid as to the reason behind his application, the issue that I need to focus upon is still whether the matters relied upon by Club Paris were sufficiently pleaded. 

29. Mr. Khawin his written submission relied on a number of recent English decisions such as Goymer v. Lombard North Central Wheelease Ltd (The Times, 1 April 1993) which indicated that as striking out can be undertaken at any stage of the proceedings, the Court is entitled to consider such an application even when the application is made at trial or shortly before trial for the purpose of excluding irrelevant matters so that costs and time can be saved.  A summary of these cases is contained in Tang Woung Shiu v. Tang Kun Yeung & Another [2002] 3 HKLRD 627. 

30. Although this point was briefly mentioned in the oral submission the cases were not examined at the hearing before us because the focus was on the sufficiency of the particulars.  My view is that Ms Poon had the amended defence and counterclaim for 10 months and no action was taken on it until the eve of the trial.  Without expressing any view on the English approach, even if Ms Poon was permitted to apply to strike out the pleadings on the first day of the trial, the Judge should only accede to this request in the clearest circumstances where, for examples, the particulars were totally lacking and the allegations were clearly unsustainable. 

31. In this case the defendants had filed witness statements of various witnesses which confirmed the allegations relied upon in the pleadings concerning Ms Poon’s fraud, dishonesty and forgery of the attendance records.  In my view the Judge should have refused the application and proceeded to hear the evidence.  By then justice would be better served by a final determination of the issues in dispute.  As it turns out this striking out exercise caused the remaining eight days that were available for the hearing to be wasted with enormous costs implications for the parties.

Consent order and estoppel

32. Mr. Kwok S.C. who together with Mr. Alan Ng as counsel for Club Paris and New Oriental submitted that the Judge should not even entertain the application to strike out in the first place.  He referred to the fact that leave to amend the defence and counterclaim was granted pursuant to a consent order and Ms Poon should not be allowed to re-open the issue on the amendment again. 

33. This involves arguments on the nature of the consent order and the application of the principle of estoppel.  In my view it is not necessary to deal with these issues in this case as I have dealt with the merits of the application to strike out.

Conclusion

34. I accordingly would allow the appeal and reinstate the paragraphs that had been struck out.  I would direct that the trial in the District Court is to be resumed as soon as possible before another judge.  I would make a provisional costs order that Club Paris and New Oriental are entitled to the costs of the appeal and below with certificate for counsel.

Hon Stone J :

35. I agree that this appeal must be allowed.

36. The history of this case has been set out in the judgment of Cheung JA.

37. This was a simple District Court trial on the essentially straightforward issue of whether the plaintiff, a former employee of the defendants, was or was not entitled to compensation for wrongful termination of her employment; in turn, the defendants mounted a counterclaim.

38. The size of plaintiff’s monetary claim was small, of something in the order of HK$300,000, with the counterclaim in the amount of a similar or slightly larger sum, and the facts were in narrow compass; in short, a far from complex matter.

39. However, that which the learned judge seized with the trial permitted to occur was, in effect, the complete hijacking of this case by an eleventh hour application – on the very morning of the first day of the trial on 16 April 2007 – by counsel on behalf of the plaintiff to strike out parts of the defendants’ pleaded case, notwithstanding that the matters objected to, namely parts of the Defence and Counterclaim as to alleged dishonesty, fraud and forgery, had been the subject of an amendment consent order of almost two years earlier, on 16 June 2005, prior to the transfer of this litigation to the District Court.

40. Instead of ordering the trial (which, in light of its fundamental simplicity, unaccountably had been set down for a period of 10 days) to proceed immediately, and thus to determine without further delay that which was no more than a very ordinary, albeit contentious, compensation claim and counterclaim, what was allowed to happen was that the judge acceded to the blandishments of counsel and entertained a strike out application – which he ordered should be formally mounted by an immediate short-served summons issued on the following day – an application which was not determined in favour of the plaintiff/applicant until fully 7 days after the purported commencement of the trial proper; thereafter the remaining 3 days which had been allocated in the court diary for this case was taken up by a correlative application by the defendants, ultimately refused by the learned judge, for leave to appeal, this latter decision being handed down on 27 April 2007.

41. In turn this necessitated a further hearing before a single judge of the Court of Appeal in order for the defendants to obtain leave to appeal the substantive strike out decision, and thereafter the substantive appeal has been entertained in this court.

42. In my judgment this sequence of events cannot be considered other than as a procedural travesty, the result of which is that the matter now has to be remitted to the District Court for trial before yet another judge, causing yet more expense and delay in addition to the no doubt significant amounts of time and costs hitherto unnecessarily wasted simply because the court below declined to take a robust view and to proceed to do precisely what it was supposed to do and to try the case which then had been called on before it.

43. As to the merits of this appeal, I agree entirely with what has fallen from Cheung JA.

44. In light of the particulars which had been proffered in correspondence by solicitors representing the defendants there was no question of there being no proper understanding of the substance of the defendants’ case, and the insistence of the learned judge that his attention be confined solely to the pleadings per se, thus effectively ignoring the particulars provided to the plaintiff’s solicitors, by letter dated 14 April 2007, is not a course the wisdom of which readily can be appreciated.

45. In the circumstances there should have been no question of a strike out, and most certainly the hopelessly late application so to do on the morning of the first day of the trial ought not to have been entertained; to the contrary, the plaintiff’s counsel should have been crisply instructed to get on with his task of opening the case on its merits. 

46. I regret to say that the learned judge plainly was wrong to have exercised his discretion in the manner in which he did.   In my view the case had been adequately particularized, there was no scope for any element of surprise, and in addition the existing witness statements made abundantly clear the nature of the case which had to be met. 

47. Moreover, as Cheung JA has pointed out (at paragraph 26, supra), irrespective of whether the allegations of dishonesty, fraud and forgery were able to be established in the terms alleged, upon the existing factual matrix the defendants nevertheless were in a position to mount primary factual allegations of employment misconduct – which may or may not have been accepted by the court – in support/justification of their early termination of the plaintiff’s employment.

48. It strikes me that all that was required in this case was the application of modicum of common sense to process in timely and cost-efficient manner a dispute which was far from forensically challenging; instead, that which transpired is highly regrettable, and a course of events was set in train which in the event cannot have redounded to the advantage of either party to this litigation.

49. Although for my part I would have been tempted to order that costs be taxed and paid on a higher scale than party and party, ultimately I have persuaded myself that I should further agree with the costs ordernisi proposed by Cheung JA.