ROBERT VON PALACE KOLBATSCHENKO AND ANOTHER v. LEE, IO VAI IVAN AND ANOTHER

HCA 402/2020

[2021] HKCFI 480

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 402 OF 2020

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DECISION

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Introduction

1.  There were 6 summonses before the Court, comprising four summonses issued by the plaintiffs, and two by the defendants. Chronologically these are:

Plaintiffs’ summonses:

(1)     A Summons dated 4 September 2020 for disclosure (“the Disclosure Summons”);

(2)     A Summons dated 18 September 2020 for a proprietary injunction order (by way of amendment to an existing Mareva injunction) (“the Proprietary Injunction Summons”);

(3)     A Summons (issued by the 1^st Plaintiff only) dated 5 November 2020 for judgment on admission against the 1^st Defendant (“the Judgment Summons”); and

(4)     A Summons dated 11 December 2020 to add new defendants to this Action (“the Joinder Summons”).

On behalf of the defendants:

(5)     A Summons dated 7 August 2020 to strike out parts of the Statement of Claim and parts of the 1” Affirmation of the 1^st Plaintiff (“the Strike Out Summons”); and

(6)     A Summons dated 12 January 2021 to vary the existing Mareva injunction order (“the Variation Summons”).

2.  Not all matters were contentious. The defendants made no submissions on the substantive merits of the Proprietary Injunction Summons; the Disclosure Summons, and the Joinder Summons. There was consent on the part of the plaintiffs to a small part of the Variation Summons, although in the main it was opposed and the plaintiff sought leave to file evidence in opposition. This was not opposed by the defendants, and directions for the filing of evidence were given, with the summons to be restored at an early date, which was fixed in consultation with counsel’s diaries.

Background

3.  The plaintiffs are husband-and-wife and are (now) South African nationals. The 1^st defendant is a certified public accountant practising in Hong Kong under the name of the 2^nd defendant. A detailed summary of the background has been set out in the judgment of Recorder Pow SC dated 23 October 2020 which addressed (and granted) the continuation of the ex parte Mareva injunction made on 6 April 2020. I do not propose to repeat the full detail which is set out in that earlier judgment.

4.  The gist of the plaintiffs’ case is that they entered into an oral trust arrangement with the 1^st defendant in or around 2010 by which the 1^st defendant was appointed as their accountant and trustee, being tasked with handling their financial affairs and money and assets in Hong Kong. Accounts were to be established in the name of a Hong Kong company, Chase Fund Ltd (“Chase”) which had been established so as to act as the vehicle for holding the 1^st plaintiff’s assets in Hong Kong.  On the advice of the 1^st defendant a further corporate vehicle, Ace Direct Investments Ltd (“Ace”) was incorporated in the BVI on 23 September 2011. The 1^st defendant was the holder of both issued shares in Ace. The 1^st defendant was a director of both Chase and Ace.

5.  Substantial deposits were made into Chase and Ace which are said to have been in excess of US$17.8 million. It appears that a substantial part of that money was a commission earned by the 1^st plaintiff in respect of what was referred to as the “Kalahari Mineral Deal”. However, by August 2018 these funds were depleted.

6.  For a considerable period of time the 1^st plaintiff was effectively unable to supervise the dealings by the defendants because between March 2012 and February 2018 he was, first, detained by the authorities in Bangkok at the request of the Italian authorities, and secondly, extradited to Italy to serve a sentence which had been imposed in 2009 in respect of money-laundering offences on behalf of the Sicilian Mafia.

7.  It is the plaintiffs’ contention that the 1^st defendant has misappropriated these funds, in breach of trust, having made himself therefore liable to account to the plaintiffs for them. The 2^nd defendant is implicated as having been involved in knowing receipt of parts of those funds, and/or as a dishonest assistant in the unlawful dissipation of those funds.

8.  For their part, the defendants deny the existence of the trust arrangement which is alleged, admitting only that the 1^st defendant held the shares of Chase and Ace on trust in accordance with written declarations of trust. Further, it is contended, the funds of the company were applied solely in accordance with the instructions of the plaintiffs, for their benefit, or in other ways such as, for example, director’s remuneration paid to the 1^st defendant. It is submitted that all such expenditure can be accounted for.

9.  It was the practice of the defendants to provide what were termed “reconciliation statements” to the plaintiffs from time to time. During the period of the 1^st plaintiff’s incarceration the 2^nd plaintiff received the statements on her occasional visits to Hong Kong. It is of significance to record that the last such reconciliation statements were dated 2 and 3 April 2018, and stated the value of assets held on behalf of the plaintiffs to be in the order of US$12.5 million. Such assets were said to be held in the bank accounts of Chase, Ace, and the 2^nd defendant.

10.  Following his release from prison, the 1^st plaintiff paid a visit to Hong Kong and sought to clarify his financial position with the 1^st defendant. There was an initial meeting between them at the Mandarin hotel, and a subsequent meeting at the offices of a firm of solicitors which firm had been involved in providing services for both 1^st plaintiff and 1^st defendant previously. It is the 1^st defendant’s evidence that at the meeting at the Mandarin hotel which took place on 3 December 2019 he informed the 1^st plaintiff that he wished to sever all financial ties and dealings with the plaintiffs. This much is common ground, but there are disagreements as to what else was said.

11.  In the meeting at the solicitor’s office on 5 December the solicitor (Mr Neo) advised that a written statement be drawn up as to the financial situation, and on the basis of what he was told in that meeting he prepared a “Letter of Acknowledgement”. There is a disagreement as to who brought the “summary of assets” statements that were attached to the Letter of Acknowledgement, but no dispute that summary was the latest reconciliation statement prepared by the 1^st defendant.

12.  During the 5 December 2019 meeting the Letter of Acknowledgement was signed by the 1^st defendant and by the 1^st plaintiff. It confirmed, on its face, that the money and shares recorded in the March 2018 reconciliation statement (statement of assets) still subsisted as at 5 December 2019.

13.  It is the 1st defendant’s case that he signed that letter under duress.

14.  However, it is also the 1^st defendant’s case that the Letter Acknowledgement as drafted by Mr Neo initially was amended at his insistence to provide a qualification to the value of assets which were the property of the 1^st defendant and which were therefore to be transferred to him. Thus, as signed, the acknowledgement was that:

“… all the assets as particularised in a summary of Assets prepared by me on 2 April 2018 and annexed to this Letter, subject to any duplication by reference or adjustments to be agreed, are subsisting as at the date hereof and held by me as a trustee for and behalf of and for the benefit of…” the 1^st plaintiff.

15.  The words which have been underlined by me in this quotation are those added at the insistence of the 1^st defendant.

16.  The plaintiffs say that it was intended that there would be subsequent meetings to arrange the logistics of the transfer of the assets referred to, but the 1^st defendant failed to respond to emails seeking to arrange such a meeting. Certain communications from 9 December to 13 December are said by the defendants to be protected by “without prejudice” privilege and are not recited here.

17.  Direct communications between the parties appear to have ceased at that point and lawyers were instructed.

Alleged “Siphoning Off” by the Defendants

18.  The plaintiff’s case on this has been tabulated in schedules appended to the draft Amended Statement of Claim which have been prepared based upon documents obtained from the banks pursuant to disclosure orders. They include transfers from HSBC accounts held by Chase and Ace to various unknown recipients; transfers from the 2^nd defendant to the 1^st defendant; transfers from the 2^nd defendant to the 1^st defendant’s joint account with his wife; transfers from 2^nd defendant to the account of the intended fourth defendant; transfers from the 2^nd defendant to the account of the intended 5^th defendant; and transfers from the 1^st defendant to his joint account held with his wife (the intended 3^rd defendant). In addition, it is said, the 1^st defendant’s daughter, the intended 6^th defendant, also received a payment of £370,000 from the joint account of the 1^st defendant and his wife in December 2016.

19.  Those schedules were summarised and supplemented by summary tables provided by counsel for the plaintiffs at the hearing.

The Disclosure Summons, the Proprietary Injunction Summons and the Joinder Summons

20.  As referred to above, the defendants in effect took a neutral stance in regard to these summonses except to the extent that the ambit of the proposed Amended Statement of Claim might be affected by the defendants strike out summons, and subject to the potential implications of the defendants’ variation summons on the terms of the proprietary injunction. That variation summons has been adjourned for later determination and I accept may affect the extent to which assets may be made the subject of the proprietary injunction.

21.  The proprietary injunction is sought so as to encompass monies withdrawn from the bank accounts of Chase and Ace, and the traceable proceeds transferred to specific HSBC accounts held by the 1^st defendant; specific HSBC account held by the 1^st defendant jointly with his wife; and specific HSBC accounts held by the 2^nd defendant.

22.  A proprietary injunction may be granted in respect of the traceable proceeds of property belonging to a plaintiff provided that it can be shown that there is a serious issue to be tried on the merits; that the balance of convenience is in favour of granting the injunction; and that it is just and convenient to grant the injunction.

23.  The plaintiff submits that there is incontrovertible evidence that between 2012 and 2018 the 1^st defendant transferred very substantial sums of money from the bank accounts of Chase and Ace to the accounts of the 2^nd defendant, from there to the accounts of the 1^st defendant and joint accounts of the 1^st and 3^rd defendants, and also from the 1^st defendant’s accounts to the joint accounts of the 1^st and 3^rd defendants.

24.  Notwithstanding the fact that there are, according to the 1^st defendant, only nominal sums left in the relevant accounts, the plaintiffs submit that this should not be a bar to the issue of the proprietary injunction. The balance of convenience is said to clearly favour the grant of the injunction.

25.  I am in agreement with these submissions and it appears to me, pending determination of the variation summons that the order is to be made in the terms sought by the plaintiffs.

26.  An order in terms of the Joinder Summons is also appropriate in my view given the available evidence as to the payment of monies to the proposed additional defendants from accounts which clearly arguably held monies of the plaintiffs.

27.  As regards the Amendment summons, the principles regarding amendments are uncontroversial: see for example Qianhai Xinhuakang Financial Holdings (Shenzhen) Ltd v Chen Jiarong [2020] 2 HKLRD 1320 at para. 44. I am satisfied that the proposed amendments were intended to properly identify the issues raised between the parties and that it would be appropriate to grant leave for the amendment to be made.

Judgment on Admissions

28.  The application is made under O.27r.3, and the factual basis is the Letter of Acknowledgement referred to above and as signed by the parties. Also as mentioned above, the basis upon which this ostensible admission is now resisted is that it was obtained under duress.

29.  The pleaded defence further contends that the assets which are referred to in the “summary of assets” annexed to the Letter of Acknowledgement did not in fact subsist as at the date on which that document was signed. Nor were those assets held by the 1^st defendant as trustee. Although the 1^st defendant was able to insist on certain modifications to the Letter of Acknowledgement, it still contained such inaccuracies regarding the trust position and the 1^st defendant therefore refused to sign. The pleading continues to state that the 1^st plaintiff became hostile and the 1^st defendant became concerned for his personal safety given the 1^st plaintiff’s connections with the Mafia. It was in those circumstances that the 1^st defendant reluctantly signed the Letter of Acknowledgement, without the benefit of legal advice, as he felt threatened and just wanted to leave the solicitors office.

30.  This case first emerged in the 1^st defendant’s 3^rd affirmation filed on 7 August 2020, some 8 months after the Letter of Acknowledgement was signed by him. Neither his 1^st or 2^nd affirmation made any mention of the duress now alleged. His evidence was amplified in his 5^th and 6^th affirmations.

31.  Evidence as to the meeting is given by the 1^st plaintiff, who does not accept any suggestion of intimidation on his part. Importantly in the present context evidence is also given, by the solicitor in whose office the meeting took place, Mr Wilbert Neo. Mr Neo says in his affirmation of 4 January 2021 that the meeting took place in his conference room, and he was present throughout. He says that the 1^st plaintiff was polite and friendly to the 1^st defendant throughout the meeting, and he confirms that the Letter of Acknowledgement was drafted by him based upon the discussions between the parties during that meeting. He confirms that the signed version was the formulation after amendment proposed by the 1^st defendant and that “he signed it voluntarily without any compulsion or duress by the 1^st plaintiff or anyone”.

Does that letter constitute an admission?

32.  The principles are not greatly in dispute between the parties. O.27r.3 makes provision for the court to give “such judgment or order” as an applicant may be entitled to, without waiting for the determination of any other question between the parties where there has been an admission of fact, whether in pleadings or otherwise.

33.  Any such judgment or order may be made only if the court believes it to be “just”, and only when the relevant admission, whether express or implied, is “clear and unambiguous”: see Re Chung Wong Kit (a bankrupt) [1999] 1 HKLR 410 at 412F.

34.  The plaintiffs submit that, where appropriate, the court may assess the evidence so as to determine whether an admission has been made.  Further, any dispute as to the scope, ambit or meaning of an alleged admission is of no significance unless resolving the dispute in favour of the other party would result in a defence in law.

35.  In the present case there are two aspects to consider in answering the question as to whether or not the Letter of Acknowledgement constitutes an admission capable of giving rise to judgment against the defendants. These are firstly as to whether the document was signed under duress, and secondly, as to the clarity of the alleged admission.

Duress

36.  The plaintiffs submit that duress is the only relevant issue raised in the defence, and for this to succeed the defendants will be required to evidence pressure amounting to compulsion of the will of the victim, and illegitimacy of that pressure.

37.  In part, the plaintiffs base their submissions on the way in which the defendants have pleaded the case, submitting that there is no proper case set out as to the fact of undue or improper pressure having been applied, nor any pleading as to the illegitimacy of such pressure. For my own part, I do not think that much reliance should be placed upon the pleadings. It is true to say that the evidence to be adduced by the defendants must fall within the ambit of the pleaded case, and also true to say that the pleadings provide a statement of the relevant facts known to the drafter of the pleading. Obviously however, in any such application as the present it is of primary importance to consider the evidence itself rather than corroborative factors such as the way in which the defence has been set out.

38.  However, the plaintiffs submit that the evidence does not demonstrate the necessary elements of duress so as to amount to a defence in any event. The core allegations made by the 1^st defendant in his affirmation evidence is that, as the discussions progressed at the solicitor’s office, he became concerned for his personal safety because the 1^st plaintiff became hostile. Primarily, he says he felt threatened because of the 1^st plaintiff’s believed associations with the Mafia. He was “in the room with the Godfather”.

39.  It is submitted therefore that the 1^st defendant’s assertion that he did not sign voluntarily is inherently believable. There is no real dispute regarding the 1^st plaintiff’s background or the fact of his having been convicted of criminal associations. It is pointed out that his notoriety is sufficient for him to have an entry in Wikipedia. It is submitted that his character and background is of crucial importance in understanding the circumstances in which the Letter of Acknowledgement came to be signed.

40.  It is also said to be telling that the 1^st defendant was unwilling to attend any follow-up meeting with the 1^st plaintiff, thus demonstrating his continued fears.

41.  Put simply, it is contended that if the 1^st defendant felt threatened to any significant extent in that meeting in the solicitors office, then the purported admission could not be considered to be unequivocal.

Clarity of the Admission

42.  Ms Tam SC, on behalf of the defendants, also submits that judgment on admissions ought not to be available to the plaintiffs in the present circumstances because of the lack of clarity in the alleged admission regarding quantum particularly. Judgment should not be given where the extent of liability is unascertained but the summons seeking judgment seeks a specified sum. Counsel points to the words added to the Letter of Acknowledgement at the insistence of the 1^st defendant, to the effect that the sum said to be held by the 1^st defendant was subject to adjustment in respect of any duplication or other (yet to be agreed) adjustments.

43.  It is submitted that it is clear that all parties knew that the value stated in the “summary of assets” appended to the Letter of Acknowledgement was no more than an approximation since it purported to state share values as at March 2018, in Hong Kong dollars but with various foreign currency sums in addition all of which were translated into US dollars. Undoubtedly, by December 2019, different share values and exchange rates would have changed the US dollar equivalent valuation.

44.  Further, and in consequence, it is submitted the 1^st plaintiff has acknowledged that adjustment to the quantum is required, firstly by signing the Letter of Acknowledgement in the terms set out, and further by confirming in his 3^rd affirmation that the stated sum was subject to “minor discrepancies” arising from expenses incurred by the defendants. That has also been confirmed in the affirmation of Mr Neo.

45.  The defendants have pleaded that the relevant funds have only been disbursed in accordance with the instructions of the plaintiffs and/or for the benefit of the plaintiffs, and certain details of this are pleaded and have been “explained” in the 3^rd affirmation of the 1^st defendant. A purported reconciliation of certain of the sums has been produced and the evidence overall is said to show that the funds are accounted for. I note that the accounting process reveals an allocation of approximately US$3.5 million to the 1^st defendant by way of directors remuneration; approximately US$260,000 to the 1^st defendant in respect of a “cash management fee”; approximately US$210,000 to the 1^st defendant in respect of an annual custody fee; and a tax indemnity paid to the 1^st defendant of approximately US$550,000.

46.  However, the 1^st defendant also says in that affirmation that the “summary of assets” statements which he prepared, including that attached to the Letter of Acknowledgement, did not include his “entitlements and most of the disbursements… because at the time, I had not yet had a chance to discuss with the 1^st plaintiff and agree upon my fees and remuneration”.

47.  In other words, none of those disbursements were agreed or expressly authorised.

48.  On behalf of the plaintiffs Mr Lui submits in reply that the Letter of Acknowledgement comprises, in effect, two acknowledgements; one being the admission of the 1st defendant’s role as trustee of funds belonging to the plaintiffs, and the second being the value of funds held. It is submitted that any issues raised in regard to the second of these points would not preclude judgment being given on an admission as to the role played by the 1^st defendant.

Discussion

49.  In my judgment there is no question but that the 1^st defendant has clearly acknowledged by way of the Letter of Acknowledgement that he held assets on behalf of the plaintiffs as trustee for them. I do not accept what are relatively belated assertions of duress brought forward by the 1^st defendant a considerable period of time after the meeting in which he is said to have been coerced into signing the Letter of Acknowledgement. I do not accept that it is at all likely that the 1^st plaintiffs alleged Mafia connections have had any intimidatory effect on the 1^st defendant. It is reasonably clear that he has known about the 1^st defendant’s reputation at the least since his arrest and conviction in 2012. The 1^st defendant has continued to hold and manage funds over a considerable period of time without taking any steps to resign from that role, and has produced the so-called reconciliation statements, setting out for the benefit of the plaintiffs the monies said to be controlled by him on their behalf.

50.  It is common ground that the 1^st defendant was not so cowed in that meeting as to be unable to “insist” on a change to the terminology of the Letter of Acknowledgement, but he did so at that time only in terms of the monetary value, not as to the fact of his trusteeship. If there was any issue as to his status as trustee, Mr Neo was not made aware of it.

51.  I also accept however that the precise money value held by the 1^st defendant as trustee has not been admitted and is not capable of precise determination on the evidence presently available, as has been submitted on behalf of the defendants.

52.  Counsel for the defendants has opposed any “shifting of the goalposts” so as to provide for a judgment on liability but not quantum, but it is clear to me that both the terms of the summons and the provisions of the RHC allow for this in appropriate circumstances and, in my view, these are indeed appropriate circumstances.

53.  Accordingly judgment on liability is to be entered against the 1^st defendant, with an assessment to be made after hearing evidence as to the amount of such liability.

The Strike Out Summons

54.  This Summons dated 7 August 2020 (approximately three months before the judgment on admissions summons) seeks to strike out paragraphs 53 to 55 of the Statement of Claim and paragraphs 66 to 71 and 73 of the 1^st affirmation of the 1^st plaintiff. The relevant parts of the pleading are attacked as being scandalous, frivolous and vexatious and prejudicial to the fair trial of the action and/or an abuse of the process, while the affirmation is said to contain scandalous, irrelevant and oppressive matters. This is because it is said to be clear that these paragraphs refer to without prejudice discussions between the parties.

55.  I do not propose to recite the relevant parts of the pleading or the affirmation given the nature of the challenge that is made. These passages address matters passing between the parties in the days following the signing of the Letter of Acknowledgement.

56.  It is trite that without prejudice communications are privileged, and are protected from disclosure in subsequent court proceedings, with a view to encouraging parties towards reasonable settlement of their disputes. It is clear that the communications between the parties need not necessarily expressly invoke without prejudice privilege in order to be able to claim that privilege subsequently since the public policy underpinning the privilege requires the parties to be encouraged to “put their cards on the table”. See for example Schering Corp v CIPLA Ltd [2005] FSR 25.

57.  In Yu Man Fung Alice and Chiau Sing Chi Stephen [2019] HKCFI 1549 Deputy Judge Keith Yeung (as he then was) summarised the principles as involving an assessment firstly as to whether the communication was made in a bona fide attempt to settle a dispute between the parties, and secondly with the intention that, if negotiations failed, the communication could not be disclosed without the consent of the parties making the communication.

58.  The judge noted (at paragraph 20) that it was necessary for there to be a dispute between the parties at the time the communication was made and that this was a dispute in which legal proceedings were either contemplated or had already commenced. The communication must, of course, also demonstrate an attempt to settle that dispute.

59.  In his judgment the judge also quoted from the judgment of David Richards J in Avonwick Holdings v Webinvest [2014] EW HC 3322 (Ch) para 19:

“For a document to be inadmissible on the grounds that it is ‘without prejudice’ it must form part of a genuine attempt to resolve the dispute. If there is no dispute about a liability, but only a negotiation as to how and when it should be discharged, the negotiations, and documents produced in the course of them, are not covered by the ‘without prejudice’ exception to the admissibility of relevant evidence.…”.

The Dispute

60.  The existence of a dispute is a prerequisite to an attempt to settle a dispute, and the defendants submit, accordingly, that the parties were in dispute prior to the first of the relevant documents, which is the email of 10 December 2019. This is said to have been constituted by the demand by the plaintiffs for an accounting of the alleged trust funds, and their transfer back, and what is described in submissions as the “1^st defendant’s stance” that those funds had all been properly applied for the benefit of the plaintiff’s either in accordance with instructions, or in a manner which could be justified. It is clear that the situation has to be viewed objectively, not from the subjective viewpoint of one of the participants: see Avonwick at para 17.

61.  The dispute is said to be further evidenced by the 1^st plaintiff’s email of 9 December 2019 in which he said “Unless I … hear from you by close of business today I have no option and take further legal action to recover my funds”.

62.  That communication can only be understood in context of the preceding paragraphs in which the 1^st plaintiff stated that he had been waiting to hear from the 1^st defendant to follow up from the meeting at Mr Neo’s office, had sent several unanswered messages by way of follow-up, and had asked a mutual friend to locate the 1^st defendant to find out “if and when you will be coming to our scheduled meeting”.

63.  Moreover, it seems to me that for a dispute to exist, the parties must at the least have had an opportunity to take opposing positions as to the subject matter of that dispute. In Bradford and Bingley plc v Rashid [2006] 1 WLR 2066 at para 75 Lord Browne in the House of Lords stated:

“As I have explained, acknowledgements may well leave issues of quantum outstanding and negotiations designed to resolve these to my mind should qualify for without prejudice protection. In these cases, the policy underlying the without prejudice rule seems to me to outweigh the countervailing policy reasons for lengthening the period in which the creditor must issue proceedings.…

In short therefore some acknowledgements will indeed attract without privilege protection. But these will be cases where the extent of the liability is genuinely in dispute and the parties are attempting to settle that difference. Had Mr Rashid, for example, in fact been seeking to question the sufficiency of the sum obtained from the mortgagee’s sale of the property and had the correspondence been devoted to resolving that particular issue, without prejudice protection might well applied. But that simply was not the case. The correspondence treated the debtors and undisputed liability and dealt only with whether, when and to what extend the Rashid could meet that liability. The question before your Lordships is whether in those circumstances the without prejudice rule should be extended. For the reasons given I would hold not.”

64.  The plaintiffs do not accept that there was any extant dispute at the relevant time, and nor do I. As at 10 December 2019 the evidence indicates that the position known to the parties was that a Letter of Acknowledgement had been prepared and signed by them both by which, as I have found above, the 1^st defendant acknowledged, at the least, his role as trustee. He had not, on the evidence, at any time subsequently (prior to these proceedings) notified the plaintiffs that he rejected any liability as trustee. The Letter of Acknowledgement recorded that there was to be further agreement between the parties as to such deductions and expenses as the defendants might be entitled, but that working out of the quantum of the money otherwise due to the plaintiffs was not in dispute. It simply remained for future determination by agreement. The parties were not opposed on this. They were in agreement.

65.  In these circumstances, I do not accept that the relevant correspondence attracts the privilege, and self-evidently therefore nor are those paragraphs amenable to being struck out.

66.  The strike out summons is, accordingly, dismissed.

Conclusion

67.  There are to be orders in terms of the summonses issued on behalf of the plaintiffs save and except that in respect of the Judgment Summons, the judgment is confined to holding the 1^st defendant liable as trustee of the relevant assets of the plaintiffs.

68.  The Strike Out summons issued by the defendants is dismissed, and I make an order nisi that the cost of this be to the plaintiffs.

69.  In regard to the Variation Summons, orders are to be made in the form agreed by the parties in correspondence subsequent to the hearing (letters of 11 February and 16 February 2021).