SOUTHWEST SECURITIES (HK) BROKERAGE LTD v. NIEUMARKT INVESTMENTS LTD AND OTHERS

HCA 1200/2019

[2020] HKCFI 1050

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 1200 OF 2019

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D E C I S I O N

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1.  By Summons dated 19 November 2019, the Plaintiff applies for summary judgment and an Order against the 1^st and 2^nd Defendants that:-

“(1) Final judgment in this Action be entered against the 1^st and 2^nd Defendants for the relief as claimed in the Statement of Claim with interest, as therein claimed;

(2) The 2^nd Defendant’s Counterclaim be dismissed; and

(3) Cost of the Plaintiff’s claims against the 1^st and 2^nd Defendants in this action and costs of the Counterclaim, together with costs of this application be to the Plaintiff.”

2.  The Plaintiff is a Hong Kong company.  Its parent company Southwest Securities International Securities Limited (“Southwest International”) is a company listed on the Main Board of the Hong Kong Stock Exchange (“HKSE”).

3.  The 2^nd Defendant is the sole director and shareholder of the 1^st Defendant which is a Marshall Islands company.

The Plaintiff’s Case

4.  The Plaintiff filed the Writ of Summons endorsed with a Statement of Claim on 5 July 2019.  The Plaintiff’s case against the 1^st and 2^nd Defendant can be summarised as follows:-

4.1.  On or about 24 November 2017, the Plaintiff as lender, the 1^st Defendant as borrower and the 2^nd Defendant as guarantor entered into a facility agreement in writing of even date (“the Facility Agreement”), under which the Plaintiff agreed to make available to the 1^st Defendant a term loan facility of HK$251,000,000 on the terms and conditions set out therein.

4.2.  On or about 24 November 2017, the 3^rd Defendant executed in favour of the Plaintiff of a deed of guarantee and indemnity dated 24 November 2017 (“the Guarantee”).  On even date, the 1^st Defendant as mortgagor also executed in favour of the Plaintiff a mortgage dated 24 November 2017 (“the Mortgage”) over 991,689,459 shares in Celebrate International Holdings Limited (“Subject Shares” and “Celebrate International” respectively), a company listed on the Main Board of the HKSE (stock code: 8212).

4.3.  On or about 12 February 2019, the Plaintiff as lender, the 1^st Defendant a borrower, and the 2^nd and 3^rd Defendants as guarantors entered into an amendment deed dated 12 February 2019 (“the Amendment Deed”) to amend certain terms of the Facility Agreement. 

4.4.  The Facility Agreement (as amended by the Amendment Deed) (“the Amended Facility Agreement”) contains, inter alia, the following terms and conditions:-

“2. THE FACILITY

Subject to the terms of this Agreement, the Lender makes available to the Borrower a HK dollars term loan facility divided into:

(a) Tranche A in the maximum amount of HK$150,000,000; and

(b) Tranche B in the maximum amount of HK$101,000,000, save that, to the extent Tranche A is not fully utilised, Tranche B shall, upon the Utilisation of the Tranche A Loan, be increased by an amount equal to such utilised amount.

…

6.1 Repayment of Loan

(a) The Borrower shall repay:

(i) the aggregate Loans utilised under Tranche A on [16 April 2019]; and

(ii) the aggregate Loans utilised under Tranche A on [16 April 2019]…

…

9. INTEREST

9.1 Calculation of interest

The applicable rate of interest:

(a) in respect of Tranche A is thirteen per cent. (13%) per annum; and

(b) in respect of Tranche B, is thirteen per cent. (13%) per annum.

…

9.3 Default interest

(a) If an Obligor fails to pay any amount payable by it under a Finance Document on its due date, interest shall accrue on the Unpaid Sum from the due date to the date of actual payment (both before and after judgment) at a rate of, subject to paragraph (b) below, thirty per cent. (30%) per annum. Any interest accruing under this Clause 9.2 shall be immediately payable by the Obligor on demand by the Lender.

…

17. GUARANTEE AND INDEMNITY

17.1 Guarantee and indemnity

Mr Ng irrevocably and unconditionally:

(a) guarantees to the Lender punctual performance by each Obligor of all that Obligor’s obligations under the Finance Documents;

(b) undertakes with the Lender that whenever an Obligor does not pay any amount when due under or in connection with any Finance Document, he shall immediately on demand pay that amount as if it was the principal obligor; and

(c) agrees with the Lender that if any obligation guaranteed by it is or becomes unenforceable, invalid or illegal, it will, as an independent and primary obligation, indemnity the Lender immediately on demand against any cost, loss or liability it incurs as a result of an Obligor not paying any amount which would, but for such enforceability, invalidity or illegality, have been payable by it under any Finance Document on the date when it would have been due…

17.2 Continuing guarantee

The making of one demand under this guarantee shall not preclude the Lender from making any further demands. This guarantee is a continuing guarantee and will extend to the ultimate balance of sums payable by any Obligor under the Finance Documents, regardless of any intermediate payment or discharge in whole or in part.”

4.5.  Paragraph 3 of the Amendment Deed states that:

“Each of the Borrower and the Guarantors, by its or his execution of this Deed:

…

(c) confirms and agrees that, notwithstanding anything contained in this Deed, its/ his obligations and liabilities contained in the Facility Agreement, Mr. Lee Guarantee and/or other Finance Documents to which it is/ he is a party remain in full force and effect and shall continue in full force and effect as hereby amended under this Deed…”

4.6.  On or about 27 November 2017, the 1^st Defendant drew a sum of HK$150,000,000 under Tranche A under the Facility Agreement.  There were three drawdowns made by the 1^st Defendant (in a total sum of HK$8,433,410.69) under Tranche B on 11, 16 and 19 January 2018 respectively.

4.7.  Under Clause 6 of the Amended Facility Agreement, the 1^st Defendant was obliged to repay the Plaintiff all outstanding sums due under the Amended Facility Agreement by 16 April 2019.

4.8.  The 1^st Defendant did not repay the following sums due to the Plaintiff on or before 16 April 2019:

	Items	Amount (HK$)
1.	Outstanding principal amount of the Loans	158,433,410.69
2.	Capitalised accrued interest on the Loans for the period from 16 January 2019 to 15 April 2019	5,078,550.42
3.	Unpaid capitalised accrued interest on the Loans for the period from 24 May 2018 to 23 August 2018	0.10
4.	Handling fee, certificate deposit fee and voting instruction fee for the period from February 2018 to December 2018	77.50
	Total	HK$ 163,512,038.71 (“the Sums”)

5.  In the Statement of Claim, the Plaintiff claims against the Defendants for, inter alia, the Sums, interest and costs.

6.  In support of the present application, the 1^st, 2^nd and 3^rd affirmations of the Mr Lo Wing Shing Steven (“Mr Lo”), the Vice President of Southwest International were filed on 19 November and 2 December 2019 and 8 May 2020 respectively.  The affirmation of Mr Luo Yi, the former executive director and executive vice president of Southwest International was filed on 8 May 2020.

The 1^st and 2^nd Defendants’ Case

7.  On 8 October 2019, the 1^st and 2^nd Defendants filed their Defence and Counterclaim.  By Summons dated 11 May 2020, the 1^st and 2^nd Defendants seek to amend their Defence and Counterclaim, and to file and serve the same.  No serious opposition was made to this and the application to amend is granted. 

8.  The Defendants do not dispute that they entered into the Facility Agreement, the Amendment Deed and the Amended Facility Agreement, as pleaded in the Statement of Claim.

9.  Instead, the Defendants aver the real intention of the Plaintiff at the time when it entered into the Facility Agreement (as amended by the Amendment Deed) with the Defendants was to use the 1^st Defendant as its nominee, agent and/or proxy in completing the acquisition of Celebrate International’s 59% total issued shares (“Controlling Shares”) and the general offer, so that the Subject Shares would become beneficially owned by the Plaintiff in the event that the Defendants defaulted in interest payments and/or repayment of the facility, which was bound to happen given their financial inability.

10.  In the affirmation of the 2^nd Defendant dated 14 February 2020 and the Amended Defence and Counterclaim filed 11 May 2020, the 1^st and 2^nd Defendants now aver that after a meeting concerning the proposed funding on 8 September 2017, the 2^nd Defendant had a telephone conversation with Mr Luo for and on behalf of the Plaintiff during which:-

(1)  Mr Luo urged the 2^nd Defendant to take out a loan facility from the Plaintiff to acquire the Controlling Shares;

(2)  Mr Luo represented to the 2^nd Defendant that the value of the listing status of Celebrate International itself was worth more than the loan amount to be granted.  Therefore, by acquiring the Controlling Shares, it was a transaction with no down-side.  If the 2^nd Defendant could have found a buyer for the Controlling Shares, he would be able to earn a quick and substantial profit from the transaction;

(3)  In order to lure the 2^nd Defendant, Mr Luo agreed to sweeten the deal by lowering the interest rate under the facility to 13% p.a. (from 15-16% p.a. as proposed by Mr Luo in the meeting on 8 September 2017);

(4)  It was also expressly represented to the 2^nd Defendant that, despite the terms of the Facility Agreement (which later became the Amended Facility Agreement) and other ancillary security agreements including the Guarantee, the 2^nd Defendant would not be held liable and accountable for the money owed therein.  It was expressly promised by Mr Luo to the 2^nd Defendant that, in the worst case scenario, the Subject Shares would be sold and the value of which was more than sufficient to cover any personal indebtedness owed to the Plaintiff (“the Collateral Agreement”).

11.  The 1^st and 2^nd Defendants say that it was only because of the aforesaid representations and promises made by Mr Lou that they entered into the loan facility.  Furthermore, by commencing these proceedings against the Defendants, the Plaintiff was in breach of the Collateral Agreement.  As such, the Defendants further seek a declaration that the Collateral Agreement be specifically performed, and counterclaim for payments or repayments that were made pursuant to the facility agreements.

The Plaintiff’s Submissions

12.  Mr M C Law, Counsel for the Plaintiff, submitted that this case is simple and straightforward.  On 24 November 2017, the Plaintiff as lender, 1^st Defendant as borrower and 2^nd Defendant as guarantor entered into the Facility Agreement in writing, under which the Plaintiff agreed to make available the 1^st Defendant a term loan of HK$251,000,000. There is no dispute about this, nor is it disputed that the 1^st Defendant is the corporate vehicle of the 2^nd Defendant. 

13.  The 2^nd Defendant obtained the loan facility in order to acquire shares in Celebrate International, a company listed on the GEM Board by way of mandatory general offer.

14.  On about 24 November 2017, as security for the loan under the Facility Agreement, the 1^st Defendant as mortgagor executed in favour of the Plaintiff the Mortgage over the Subject Shares in Celebrate International (a further personal guarantee was provided by the 3^rd Defendant but he is not involved in this application).  Again this is not disputed.

15.  On 12 February 2019, the parties entered into the Amended Facility Agreement.  Again there is no dispute about this.

16.  As of 16 April 2019, the 1^st Defendant failed to repay the outstanding sums drawn down in total of HK$163,512,038.71.  By letters dated 25 April 2019, the Plaintiff through its former solicitors, Messrs Reed Smith Richards Butler demanded repayment from the Defendants.  The Defendants have failed and refused to pay the outstanding sums.  Again this is undisputed.

17.  Mr Law says given this simple and straightforward background, the Defendants have no defence to the Plaintiff’s claim for repayment for its monies and asks for summary judgment.

The Defendants’ Submissions

18.  Mr Chen, Counsel for the 1^st and 2^nd Defendants, says that, in essence, the Defendants’ defence relies upon the Collateral Agreement recently pleaded in paragraph 4A of the Amended Defence and Counterclaim. That agreement is pleaded as follows:-

“4A. After the 8 Sept Meeting, the 2nd Defendant had a telephone conversation with Mr. Luo during which:-

…

(d) It was also expressly represented to the 2^nd Defendant by Mr. Luo that, despite the terms of the Facility Agreement (which later became the Amended Facility Agreement) and other ancillary security agreements including the Guarantee, the 2^nd Defendant would not be held liable and accountable for the money owed therein. It was expressly promised by Mr. Luo to the 2^nd Defendant that, in the worst case scenario, the Subject Share (as defined in paragraph 16 herein below) would be sold and the value of which was more than sufficient to cover any personal indebtedness owed to the Plaintiff (the “Collateral Agreement”).”

19.  Mr Chen further directed the Court’s attention to paragraph 25 of Amended Defence and Counterclaim which pleads as follows:-

“The Defendants aver that given the parties’ conducts and deeds evidenced by the aforesaid background and the events both before and after the entering into the Facility Agreement, the real intention of the Plaintiff the parties at the time when it they entered into the Facility Agreement with the Defendants was that the Defendants would act as were the Plaintiff’s nominees, agents and/or proxies in acquiring and holding the Subject Shares for the Plaintiff and that the Facility Agreement, as amended by the Amendmented Deed, was entered into by the Defendants to enable the availability of funds for completion of the acquisition of the Controlling Shares and the General Offer so that the Subject Shares would become beneficially owned by the Plaintiff in the event that the Defendants would default in interest payments and/or repayment of the Facility, which was bound to happen given the financial inability of the Defendants. The true intention of the parties, at least of the Plaintiff, was to use the 1^st Defendant as the Plaintiff’s nominee, agent and/or proxy in completing the acquisition of the Controlling Shares and the General Offer…

Particulars of Conducts and Deeds

(a) The Plaintiff made the Facility available to the Defendants knowing or having reasonable cause to believe that neither of them had the financial means to service the interest payments and ultimately repay the Facility…”

20.  In his helpful submissions, Mr Chen described the scheme pleaded in paragraph 25 of the Amended Defence and Counterclaim as the Plaintiff’s “hidden plan”.  The 2^nd Defendant himself described this “hidden plan” in his affirmation dated 14 February 2020 as follows:

“7. …

(c) it can be readily inferred that SW Brokerage’s plan and agenda was all along to acquire Controlling Shares (as defined herein below) of a company listed on the GEM Board of The Stock Exchange of Hong Kong Limited (the “Stock Exchange”), namely Celebrate International Holdings Limited (Stock Code: 8212) itself. But it did not wish to do so directly under his own name and hence it was betting on the defaults by Nieumarkt and I of the Facility Agreement, which is bound to happen. As borne out by the fact, the defaults did happen and a receiver was appointed for and on behalf of SW Brokerage…”

21.  Mr Chen, in summary, submitted that despite the unequivocal loan documents, there lies underneath the Plaintiff’s “hidden plan” to use the 1^st Defendant as its front to complete its acquisition of the controlling shareholding in Celebrate International.  And in inducing the 2^nd Defendant into going along with the Plaintiff’s “hidden plan”, the Plaintiff made assurances to the 2^nd Defendant leading to the “Collateral Agreement”.

22.  In support of this, Mr Chen pointed to the fact that the facility granted a very large sum, and the Plaintiff and the 2^nd Defendant had never dealt with each other before, so one would expect there to be full due diligence in respect of the 2^nd Defendant’s financial position. 

23.  Mr Chen spent considerable effort in attempting to demonstrate to the Court that the Plaintiff’s due diligence was “alarmingly inadequate”, which Mr Chen says supports his client’s contention that he was never expected to be called upon to repay the loaned monies.

24.  Mr Chen also pointed to two offers to purchase the Subject Shares made to the Plaintiff after it had appointed receivers over those shares, the first on 18 January 2019 with a purchase price of HK$75,000,000, the second on 21 January 2019 at HK$138,863,524.30.  The Plaintiff refused to accept these offers and Mr Chen submitted that this is further evidence of the Plaintiff’s “hidden plan”.

25.  Mr Chen also made observations on the lack of particularity in the Plaintiff’s evidence, in particular in relation to telephone calls which took place between Mr Luo of the Plaintiff and the 2^nd Defendant.

The Plaintiff’s Response

26.  Mr Law for the Plaintiff submitted that the allegation of a “hidden plan” defies common sense; that it was nonsensical for the Plaintiff to advance more than HK$150,000,000 to a stranger whom the Plaintiff had no control over, and then “bet on” that they would not be able to raise finance to repay the loans and would default.

27.  Mr Law rejected the suggestion that proper due diligence had not been conducted in respect of the 2^nd Defendant, pointing to documents provided by the 2^nd Defendant as to his creditworthiness, and that the Defendants’ application for the loan facility had been vetted by the internal credit committee of the Plaintiff.

28.  As to the offers received for the purchase of the shares of Celebrate International, Mr Law pointed out that neither of them were sufficient to settle the debts due and thus were not accepted.

29.  Mr Law in particular emphasised that there was never any need for such “hidden plan”, as there is no reason why the Plaintiff could not have acquired the shares itself, and there was no reason to employ the tortuous “hidden plan” described by the Defendants. 

30.  Mr Law made a concerted attack on the alleged existence of the Collateral Contract. He submitted that the alleged Collateral Contract was not mentioned in any contemporaneous document and was inconsistent with the conduct of the parties. He noted that at all material times, the 2^nd Defendant, an experienced investor, had been represented by legal advisers. 

31.  In particular, Mr Law stressed that on 8 October 2019, the 1^st and 2^nd Defendants had filed a very detailed Defence and Counterclaim in this action.  Had such a Collateral Contract existed, it would have been natural for the Defendants to plead it at that time.  It was not so pleaded and that its absence in the Defence and Counterclaim was “inexplicable”.  Furthermore that the first time any mention was made on Collateral Contract was in May 2020, just about a week before this hearing of the Plaintiff’s summons. 

32.  Mr Law further submitted that even if such a Collateral Contract existed, its terms are too vague and uncertain, such that it would not be enforceable, referring to Wing Siu Co Ltd v Goldquest International Ltd (No. 2) [2002] 4 HKC 420, per Ma J (as he then was).

Applicable principles

33.  The principles relating to summary judgment are well-established. A helpful summary can be found in Menfond Electronic Art & Computer Design Co Ltd v Wong Wang Tat Victor [2013] 2 HKC 259, §61 per DHCJ Lisa Wong SC (as she then was):

“The principles governing the grant or refusal of summary judgment under O 14 are well established. It is for the defendant to show that there is an arguable defence or triable issue. In doing so, the defendant must condescend to particulars. The mere assertion in an affidavit of a given situation by the defendant does not, ipso facto, ground leave to defend. The defendant must satisfy the court that his evidence is capable of being believed and that on the basis of such evidence, there is a fair or reasonable probability of the defendant having a real or bona fide defence. In deciding whether there is a fair or reasonable probability of the defendant having a real or bona fide defence, the court does not isolate each factual issue and consider whether it is possible that the defendant’s story on that issue is credible. Rather, the court must look at the whole situation. In assessing the credibility of the defendant’s factual case, while the court will not embark on a mini-trial on affidavit evidence, the court is not obliged to suspend its critical faculties and assume that the defendant’s evidence is accurate. If having regard to inherent plausibility, inconsistency with contemporaneous documents and other compelling evidence, the defence is not credible, the court must say so. If the defendant’s defence is incredible in any material respect, it cannot be said that there is a fair or reasonable probability that the defendant has a real or bona fide defence”

Analysis

34.  The foundation of the Defendants’ defence is the alleged Collateral Agreement.  Indeed, Mr Chen submitted “the only issue to be determined is whether the Collateral Agreement is believable to the extent that this issue should be determined in a trial”.

35.  In considering this matter, I bear in mind the undisputed evidence that the 2^nd Defendant is an experienced investor who was at material times legally represented. 

36.  I also bear in mind the undisputed evidence that throughout the course of the parties’ dealings from about September 2017 until May 2020, there is not a single mention in any document, memo, or email of this Collateral Agreement to be found.  Nor looking at the conduct of the Defendants is there any suggestion that the 2^nd Defendant was acting in the context of the existence of a Collateral Agreement. 

37.  Furthermore, I bear in mind the undisputed fact that upon being sued in this matter, the 1^st and 2^nd Defendants instructed their lawyers to provide a detailed Defence and Counterclaim which was filed on 8 October 2019.  There is no mention whatsoever in this Defence and Counterclaim of the Collateral Agreement.  I make the obvious observation that one would expect the existence of this crucial Collateral Agreement to be included in the Defence; its absence, as Mr Law notes, is “inexplicable”.  It seems to me inconceivable that if this agreement existed it would not have been included in the Defence.

38.  I also bear in mind that the allegation of a Collateral Agreement first saw the light of day a few days before the hearing of this summary application, and more than six months after the Defence was filed.  In answer to a question from the Court, Mr Chen, with his customary fairness, readily acknowledged that there was absolutely no explanation from the Defendants as to why this alleged agreement had been raised for the first time at the eleventh hour.

39.  Applying the principles as noted in Menfond Electronic Art, supra, it is plain that the mere assertion in an affidavit or indeed, in a statement of defence, of a given situation by the defendant does not, ipso facto, ground leave to defend.  The defendant must satisfy the Court that his evidence is capable of being believed and that on the basis of such evidence there is a fair or reasonable probability of the defendant having a real or bona fide defence.

40.  The Court is not obliged to suspend its critical faculties and assume that the defendant’s evidence is accurate. If having regard to inherent plausibility, inconsistency with contemporaneous documents and other compelling evidence, the defence is not credible, the Court must say so.

41.  In my view, the 2^nd Defendant’s evidence as to the existence of the Collateral Agreement is not reasonably capable of belief. As noted I have reached this view by considering the undisputed facts and the background and manner in which the making of the allegation of a Collateral Agreement has emerged.

42.  I have carefully considered all of Mr Chen’s submissions in relation to the Collateral Agreement issue.  I agree that the due diligence conducted by the Plaintiff in relation to the 2^nd Defendant’s financial background could have been more thorough.  However, it was the 2^nd Defendant himself who provided information to the Plaintiff, which suggested that he was a person of considerable means.  I have considered the evidence of the due diligence that was in fact undertaken, and I am of the view that it does not support Mr Chen submission that the Plaintiff simply did not care whether or not the 2^nd Defendant would be able to repay the loaned monies.

43.  Mr Chen, as noted, also drew attention to the two offers made to the Plaintiff to purchase the Subject Shares, which were rejected by the Plaintiff.  As pointed out by Mr Law, these sums were inadequate to cover the debt and I do not find that the Plaintiff’s rejection of these offers in any way supports the existence of a Collateral Agreement.

44.  Furthermore, Mr Law, as noted, has submitted even if such Collateral Agreement existed, the terms alleged are too vague and uncertain, such that it would be unenforceable, relying on Wing Siu Co Ltd v Goldquest International Ltd (No. 2) [2002] 4 HKC 420.  Mr Law emphasised the expression in the alleged agreement “in the worst case scenario, the Subject Shares would be sold” and asked rhetorically what exactly was meant by this expression.

45.  In my view, the precise terms of the alleged Collateral Agreement are so vague that even on the Defendants’ version of events, there is insufficient certainty to found the existence of a contact.

46.  Turning to the alleged “hidden plan”, I note, first that aside from the 2^nd Defendant’s say so, there is no direct evidence before the Court as to the existence of this “hidden plan”.  Indeed, the undisputed evidence appears to contradict the assertion of a “hidden plan” whereby the Defendants would never be liable to repay the loaned monies.  The Defendants on five occasions between 23 February 2018 and 16 January 2019 paid a total of HK$23,422,061.10 to the Plaintiff by way of interest payments under the Facility Agreement.  In my view, this is obviously inconsistent with the objectives of the “hidden plan”.  Furthermore, the Defendants entered into the Amendment Deed on 12 February 2019.  Again, in my view, this is conduct inconsistent with the idea of “hidden plan” which involved the Plaintiff “betting” on the Defendants’ default under the Facility Agreement.

47.  I also agree with Mr Law’s submission that the alleged “hidden plan” defies common sense.  The loan facilities in this case were very large.  Both parties were represented by reputable law firms and the 2^nd Defendant is an experienced investor.  In these circumstances, and with the Court employing its critical faculties, the “hidden plan” whereby a very substantial amount of money was to be lent to persons who had no prior dealings with the Plaintiff on the basis that the Plaintiff would “bet on” their defaults which would then entitle the Plaintiff to take control and ownership of the shares, is in my view utterly implausible.

Disposition

48.  In view of findings above, the Plaintiff is entitled to enter summary judgment against the 1^st and 2^nd Defendants.  In consequence, the Defendants’ Counterclaim must be dismissed. 

49.  The Plaintiff’s summons however seeks “the relief as claimed in the Statement of Claim”.  That relief claims the full amount of the loan facility in the sum of HK$163,512,038.71.  However, as noted, on 24 November 2017, and as security for the loan under the Facility Agreement, the 1^st Defendant as mortgagor executed in favour of the Plaintiff a deed of mortgage dated the same date over 991,689,459 shares in Celebrate International.   The Plaintiff has now appointed receivers over these shares, who can or may realise the value of these shares, which would thus reduce the Defendants’ liability to the Plaintiff.  In these circumstances, I think the proper order is an order for damages to be assessed.

50.  The Court therefore orders that:-

(1)  Final judgment in this Action be entered against the 1^st and 2^nd Defendants, with damages to be assessed;

(2)  The Defendants’ Counterclaim be dismissed; and

(3)  Costs of the Plaintiff’s claims against the 1^st and 2^nd Defendants in this Action, and costs of the Counterclaim, together with costs of this application be to the Plaintiff.