DRAGON TOP INVESTMENTS LTD v. ABLE HK HOLDINGS LTD

DCCJ 824/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 824 OF 2013

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D E C I S I O N

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The Applications

1.  This is a hearing of two applications: (i) P’s O14 application for summary judgment; and (ii) D’s application for O23 for security for costs.

Background

2.  This action arises from a conveyancing dispute between the D as the vendor and P as the purchaser.

3.  The parties entered into an agreement dated 28 December 2012 (the “Agreement”) for the sale and purchase of a property known as Car Parking Spaces No 24, 45 and 46 on the Ground Floor and Car Parking Space No 21 on the Lower Ground Floor of “Grand Court, No 12 Ho Man Tin Hill Road, Kowloon (the “Property”) at the price of HK$1,550,000.00.

4.  Payment terms are set out in the Third Schedule to the Agreement. P had paid HK$80,000 as initial deposit and part payment and a further sum of HK$75,000 as further deposit and part payment.  The total payment of HK$155,000.00 was acknowledged by D in the Agreement.   

5.  Further, P highlights the following terms:

(a) the completion date is 28February 2013;   

(b) time shall be of the essence (cl 16); 

(c) D as vendor shall give and prove good title to the Property [cl 15(a)];   

(d) the Property is sold subject to and with the benefit of the Deed of Mutual Covenant (the “DMC”) (cl 1);   

(e) requisitions or objections in respect of title shall be delivered in writing to D’s solicitors within 7 business days after receipt of title deeds or 7 business days after the date of receipt by P’s solicitors of the reply from V’s solicitors (cl 11);  

(f) in case D fails to complete, the deposits and all money paid by P to D shall be returned to P forthwith in full. P would also be entitled to claim from D damages (cl 18).    

6.  According to P, D had failed to prove good title by failing to answer satisfactorily the requisitions raised. As a result, P rescinded the Agreement by a letter dated 1^st March 2013 and asked for refund of the deposits in the sum of HK$155,000.00.

7.  The P now claims for the return of the deposits and damages of HK$12,000.00 being the costs of title investigation pursuant to clause 18 of the Agreement.

8.  The other relief claimed by P is a declaration that D has not shown and proved a good title to the Property in accordance with the terms of the Agreement and/or a declaration that D has failed to answer the requisitions on the title to the Property. P also asks for a declaration that P has a lien over the Property for the payment of the said sums of HK$155,000.00 and HK$12,000.00.    

9.  On the other hand, D seeks security for its cost, in the amount of HK$857,000 in the belief that P will be unable to pay its costs if D successful in defending the action, on the following basis:-

(a)   P is a shelf company with a nominal amount of paid up capital;

(b)   P does not appear to have an actual registered office and does not carry on any business;

(c)   P does not have any other business apart from engaging in transactions in the property market; and

(d)   P does not have substantial assets or income.

Relevant Legal Principles in Summary Judgment Applications

10.  It is common ground that an application for summary judgment, the onus is upon D to show that “…there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial of that claim or part…” (O14 r3 RDC, HKCP 2013, Vol1, §14/3)

11.  The whole purpose of the summary remedy is to enable a plaintiff to obtain quick judgment without the necessity of a trial.  In the premises, unless the Court is satisfied that there is no triable issue between the parties, the Court should give unconditional leave to defend.

(HKCP 2013, Vol1, §14/4/8, §14/4/9)

12.  Bingham LJ held in the judgment of Crown House Engineering v. Amec Projects Ltd. (1990) 6 Const. L.J. 141 (and cited with approval in Man Earn Ltd. v. Wing Ting Fong [1996] 1 HKC 225the judgment of Godfrey JA at 228) that:-

“…Order 14 is for clear cases: that is, cases in which there is no serious material factual dispute and, if a legal issue, then no more than a crisp legal question as well decided summarily as otherwise…The procedure is entirely inappropriate where the plaintiff’s entitlement to recover any sum is the subject of any serious dispute, whether of law or fact…”

13.  D also submits that the Court should decline to grant summary judgmentwhen there is a dispute on construction of an instrument and a full investigation as to thefactual matrix is necessary: Khatri v. Cooperative Centrale Faiffeisen-Bowerenleenbank BA [2010] EWCA Civ 397 (cited in HKCP 2013, Vol.1, §14/4/19C).

The Requisitions   

14.  The two subject requisitions are about:

(a) whether P’s request for the provision of Letter Memorial No.UB2132719 (as required under the Deed of Variation of Government Lease Memorial No.UB1264219) has been satisfactorily answered by D (referred to as the 1^st Requisition in the Statement of Claim); and

(b) whether D has a good title to dispose of the four car parking spaces of the Grand Court, No.12, Ho Man Tin Hill Road, Kowloon (“the Car Parks”) in light of the construction of certain provisions of the DMC (referred to as the 2^nd Requisition in the Statement of Claim).     

The 1^st Requisition  

15.  By a letter dated 3 January 2013 (the “January Requisition Letter”) , the 1^st Requisition was raised:

“To prove good title to the above property, your client is required to produce to us the following deeds and documents:-

1. Mortgage Memorial No 06122701370050;

2. Receipt on Discharge Memorial No 09082602120346;

3. Letter Memorial No. UB2132719 (“Compliance Letter”) (as required under the Deed of Variation of Government Lease Memorial No. UB1264219)(“Deed of Variation”).”

(abbreviations added)

16.  P submits that the Deed of Variation had varied the terms of the Government Lease.  Thus the Compliance Letter is needed to show the compliance of the Deed of Variation.  By the very nature of these two documents, the Compliance Letter could not have been mentioned in the Deed of Variation as the latter had yet to come into existence.  

17.  By a letter dated 8 February 2013 from D to P, D asked for excerpts of the Deed of Variation to support the 1^st Requisition. The Deed of Variation was sent to D via a letter dated 15 February 2013. 

18.  In reply, D stated in a reply letter dated 19 February 2013 section 13(b) of the Conveyancing and Property Ordinance does not apply to Government Lease or Deed of Variation.

19.  By a letter dated 25 February 2013, P argued that it was necessary for D to show that the Deed of Variation had been complied with by way of the Compliance Letter. Then came the letter dated 26 February 2013 from D to P questioning the absence of any reference to the Compliance Letter in the Deed of Variation. P replied by a letter dated 27 February 2013 explaining the nature of the documents.     

20.  By its letter dated 28 February 2013, D provided with P the Mortgage Memorial and the Receipt on Discharge Memorial, ie the firstand second documents requested by P’s January Requisition Letter without the Compliance Letter and the same was pointed out in the reply letter from P dated 28^th February 2013.

21.  In a letter dated 28 February 2013 which was received by P on 1 March 2013 at noon (ie after the time for completion), D suggested that the Compliance Letter was annexed with a large plan which in the usual course of events, it would take 7 days to obtain a certified true copy from the Land Registry.   

22.  In fact the D does not contend that the 1^st Requisition has never been validly raised.  The defence of D is that the 1^st Requisition was only validly raised on 25 February 2013 (§12 of the Defence dated 17 April 2013).   As the 7-day period for certifying the layout plan would expire on 5 March 2013, the deadline for completion was thus extended to 5 March 2013. 

23.  P disagrees with the above defence and contends that the request for the production of the Compliance Letter “as required under the Deed of Variation of Government Lease Memorial No. UB1264219”   was first made in the January Requisition Letter.  Regarding the latter letter to D dated 25 February 2013, P considers it as an elaboration of the request in the January Requisition Letter.

24.  Therefore the crux of the 1^st Requisition is whether it was validly raised by the January Requisition Letter or by the letter dated 25 February 2013, or in other words, whether the letter dated 25 February 2013 raised a fresh requisition or just an elaboration of the January Requisition Letter.

25.  The January Requisition Letter requested for the Compliance Letteras required under the Deed of Variation. Clause (1) of the Deed of Variation at page 5 required the lessee to “register or cause to be registered in the Land Office by memorial a layout plan indicating the said parking spaces or car ports to be provided within the said piece or parcel of ground and approved by the said Director or a copy of such plan certified by an authorised architect …” (emphasis added).

26.  In reply to P’s letter dated 15 February 2013 providing D with excerpts of the Deed of Variation to support the 1^st Requisition, D stated in its letter dated 19 February 2013:

“After perusing the Deed of Variation of Government Lease Memorial No.UB1264219, we do not find the legal authority to support your requisition. …”

27.  P then replied to D by the letter dated 25 February 2013 quoting the relevant part of the aforesaid clause (1) of the Deed of Variation.  Mr Chong, counsel for D, criticised the above P’s letter changed P’s requirement by suggesting for the first time the production of the “layout plan” for compliance with the Government Lease. 

28.  The January Requisition Letter referred the requested Compliance Letter as “Letter Memorial No. UB2132719 as required under the Deed of Variation of Government Lease Memorial No. UB1264219” without quoting the relevant part of the clause (1) of the Deed of Variation and without referring the requested document as a layout plan.  However, I cannot agree with Mr Chong that P has changed its requirement in its letter dated 25 February 2013 for the following reasons.

29.  Letter Memorial No. UB2132719 is in fact a letter dated 23 March 1981 attaching a plan signed by an authorised architect “presented for registration pursuant to the covenants contained in the Deed of Variation of Crown Lease Memorial No.1264219”. Only the abovementioned part of the clause (1) of the Deed of Variation requires the lessee to register a layout plan by memorial.  If the D’s solicitors had perused the clause (1) of the Deed of Variation more carefully, it should have been able to recognize that the requested document is the layout plan registered by memorial. 

30.  D’s letter dated 19 February 2013 implies that D has omitted the above relevant part of the clause (1) of the Deed of Variation when perusing the same.  P’s letter dated 25 February 2013 quoting the relevant part of the clause (1) of the Deed of Variation is indeed unnecessary had D’ solicitors read the relevant part with due care and attention.

31.  In the circumstances, I agree with P that its letter dated 25 February 2013 did not raise any fresh requisition but it was just an elaboration of the 1^st Requisition validly raised by the January Requisition Letter.  Hence I reject that the completion date has been extended to 5 March 2013 by P’s letter dated 25 February 2013 or anyhow by P’s conduct.  Since it is not in dispute that D has eventually answered the 1^st Requisition on 5 March 2013, D has failed to answer the 1^st Requisition before the completion date scheduled for 28 February 2013.

The 2^nd Requisition  

32.  P also raised a requisition relating to clause 4(m) of the DMC by the said January Requisition Letter.

33.  Clause 4(m) of the DMC provides that,

“owner or owners for the time being of each undivided share in the Land and the Building shall at all times hereafter be bound by and shall observe and perform the following covenants provisions and restrictions:-

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(m) Not to assign, mortgage, or otherwise dispose of the car parking space or garden or roof (as the case may be) forming part of the unit of which he is entitled to the full and exclusive right and privilege to hold use occupy and enjoy separately from the flat thereof or in any way separate his interest therein whether with or without any of the undivided parts or shares of which he is the owner to the intent that the said car parking space or garden or roof (as the case may be) and the flat thereof shall at all times be dealt with as one integral unit.”  

34.  P set out in the January Requisition Letter that on the true and proper construction of clause 4(m), D could not assign the car parking spaces (ie the Property) separately from the flat. Any such assignment would be in breach of the DMC.  After citing clause 4(m), P raised the 2^nd requisition as follows:

“2.5 As the Flat has been assigned by your client, your client is restricted from assigning the above car parking spaces to our client under Clause 4(m) of the DMC. Please let us know how your client can assign the above car parking spaces to our client without acting in breach of Clause 4(m) of the DMC.

2.6 It seems that the only way to rectify the situation is for your client to procure all owners of the Building to enter into a deed thereby removing the restrictions under Clause 4(m) of the DMC. Please let us know whether your client is in a position to do so before completion.

2.7 Unless and until your client can remedy the situation, your client’s title is defective. Our client cannot accept title because our client will be at risk of being held liable for breach of the DMC.

2.8 We have considered whether Clause 13 of the DMC (which enables an owner to sell/dispose of his share in the Land) can assist. The answer is in the negative because Clause 13 is expressed to be “subject to these presents”, i.e. subject to Clause 4(m).”

35.  Clause 13 of the DMC provides that: 

“Each owner for the time being of an undivided share in the Land and the Building shall have the full right and liberty without reference to the other owner or owners of any other undivided share or shares in the Land and the Building or any person or persons otherwise interested in any other undivided share or shares in any way whatsoever and without the necessity of making such other owner or any other person a party to the transaction to sell, mortgage, lease, license or otherwise dispose of or deal with his part of the Building and his share in the Land together with the said benefit of and subject to these presents Provided that such owner or person shall be responsible to the other owners of the Building and the Land for the due performance and observance on the part of his tenant or lessee of the terms and conditions hereof.” (emphasis added)

36.  D replied by a letter dated 19 January 2013 and claimed that D could rely on clause 13 of the DMC the unfettered right of an owner to sell the Property:

“2. Our client relies on Clause 13 of the DMC to sell the Car Parks.  We do not agree with your interpretation on the said Clause.  The words “subject to these presents” refer to ‘sell, mortgage, lease, license or otherwise dispose of or deal with his part of the Building and his share in the Land together with the said benefit of …’ but would exclude ‘pledge’ or ‘register’ or ‘merge’ or anything re land.  It has nothing to do with Clause 4(m).”

37.  P submits that clause 13 of the DMC does not help because the seemingly unfettered right of an owner is expressed to be “with the said benefit of and subject to these presents”, ie subject to other provisions of the DMC and clause 4(m) in particular. 

38.  D then elaborated the above answer to P’s 2^nd Requisition and reiterated its reliance on clause 13 of the DMC by letters dated 8, 19 & 28 February 2013 as follows:

08/02/13: “2. Disagree. Please note that Clause 13 of the DMC is an independent paragraph with no relevance to any other Clauses of the DMC.  According to the Oxford Dictionary, a paragraph means “a distinct passage or section of a text, usually composed of several sentences, dealing with a particular point, a short episode in a narrative, a single piece of direct speech, etc.  OR a distinct, usually numbered, article or section of a formal document, esp. a legal or legislative one, dealing with a particular point.  Each explanation on the meaning on “paragraph” refers to “dealing with a particular point”.  The Clause empower ‘each owner […] shall [have] the full right and liberty without reference to tht [the] other owner or owners in the land and the building … and without the necessity of making such other owner or any other party to the transaction to sell, mortgage, lease, license or otherwise dispose of or deal with his part of the Building and his share in the Land together with the said benefit of […]’. This is the point what Clause 13 deals with.  The words ‘subject to these presents’ only refers to ‘sell, mortgage, lease, license or otherwise dispose of or deal with his part of the Building and his share in the Land together with the said benefit of …’  but would exclude ‘pledge’, ‘register’, ‘merge’, ‘devise’, ‘devolve’ or anything re land.  What is and where is the legal authority to support your allegation to add the words ‘the provisions of the Deed of Mutual Covenant including Clause 4(m)’ into the Clause 13?

The Clause 13 continues to read, ‘subject to sell, mortgage, lease, license or otherwise dispose of or deal with his part of the Building and his share in the Land together with the said benefit of Provided that such owner or person shall be responsible to the other owners of the Building and the Land for the due performance and observance on the part of his tenant or lessee of the terms and conditions hereof.’  It has nothing to do with Clause 4(m).”

19/02/13: “2. We do not agree with interpretation on Clause 13 of the DMC.  Why did the Draftman of the DMC insert Clause 13 without insert the words ‘subject to these presents in all the provisions of the Deed of Mutual Covenant’?  Please note that we had already explained why the Draftman insert ‘subject to these presents’ in the said Clause.  With greater respect, your interpretation on Clause 13 must be wrong and not ours.”

28/02/13: “We also note your bare assertion in refusing our reply.  You have not provided any reason for not accepting our reply.  We have explained in detail why we can rely on Clause 13 to sell the car parks.  You have not provided any reason to claim that the requisition was still outstanding.”

39.  Mr Chong has fairly conceded that “subject to these presents” include all provisions in the DMC. However, he submits that it is necessary to consider the factual matrix surrounding the making of the DMC dated 19 January 1982 to resolve the dispute on the true construction of the DMC.  Hence, the issue between the parties is fact-sensitive and he invites the court to visit the facts surrounding the making of the DMC before it could come to a ruling on the construction of this instrument.

40.  Mr Chong further submits that this issue is not suitable for summarydetermination as this could only be dealt with in a trial whenthe whole factual matrixis available to the court.

41.  Before I deal with there be any triable issues raised by D’s construction of clause 4(m) as to whether D has shown and proved a good title to the Property, I prefer to start with whether D has failed to answered the 2^nd Requisition.

42.  D’s answers in those letters are summarised in paragraph 21 of the Defence as follows:

“(a) pointing out that Plaintiff’s interpretation of Clause 4(m) of the said Deed of Mutual Covenant was wrong and erroneous; and

 (b) pointing out the Clause 4(m) of the said Deed of Mutual Covenant had no application and that the appropriate clause being Clause 13 thereof. ”

43.  The above sub-paragraph (a) is not quite correct as D’s four letters only focused on attacking P’s interpretation of clause 13 instead of clause 4(m).  In fact, D did not accuse P of wrongly and erroneously construing clause 4(m) in those letters but contending clause 4(m) has nothing to do with clause 13.  Since Mr Chong has conceded that clause 13 is subject toall provisions in the DMC, D has in effect abandoned its stance as stated in those letters that clause 4(m) did not apply because of clause 13 being an independent clause with no relevance to any other clauses. 

44.  The D’s interpretation of clause 4(m) as now pleaded has never been given by D as answers in any of its letters in reply to the 2^nd Requisition.  The gist of D’s answers as per those letters only relied on the right to sell car parking spaces as provided by clause 13 which was then regarded as an independent clause not subject to clause 4(m).  

45.  I do not agree that D could just say “we are right and you are wrong” when answering the 2^nd Requisition and in particular the substance and rationale of those answers given by D are plainly wrong and that clause 13 not subject to clause 4(m) has been abandoned by its counsel at the hearing.  Thus, it is my finding that the Defendant has failed to answer the 2^nd Requisition as well.

Clause 4(m) of the DMC

46.  According to the D’s construction of clause 4(m), the purpose of prohibiting the disposal of car parking space, garden or the roof unless the same be disposed of together with the “residential unit” as one integral unitis to avoid a split of an area forming part of the residence to which it belongs to be separated from its integral part.

47.  D submits that 10 “residential units” have either the ‘terrace gardens’ and ‘roof gardens’ attached to the “residential units” and such gardens/roofs are accessible from particular flats only.  The disposal of such flats with gardens/roofs that could only be enjoyed as single tenements should be disposed of with their respective gardens/roofs as “one integral unit”.  

48.  D points out that car parking spaces outnumber “residential units” by 50% (60 residential units and 90 car parking spaces as per the DMC) and all car parking spaces are located on the ground floor and the lower ground floor without attaching to any “residential units”.

49.  As there are no “residential units” on the ground floor or lower ground floor, it is D’s case that none of the 90 parking spaces are designed or constructed in such manner to form an integral part of any “residential unit”.  According to paragraph 19 of the Defence, clause 4(m) of the DMC was “either inappropriate or had never been engaged as imposing restriction upon the sale or disposal of any of the said parking spaces”. Therefore, car parking spaces could be assigned separately and independently of any “residential units”.

50.  Despite the persuasive submissions made by Mr Chong, I fail to share the D’s view on the construction of Clause 4(m) for the following reasons.   

51.  First of all, the words “flat” and “unit” are used separately in clause 4(m).  Clause 4(m) in fact does not use the expression “residential unit” but it refers to the same by “flat” instead.  D construes the “one integral unit” limited to the flats designed and built with gardens/roofs but excluding a car parking space and a flat to form a unit.  D’s interpretation bases on flats with gardens/roofs physically attached to each other and no undivided shares allotted to the garden/roof but undivided shares allotted to the flat together with the garden/roof as a whole, whereas car parking spaces are allotted with one undivided share each and are physically separated from the flat of the same owner. 

52.  If the D’s aforesaid construction of clause 4(m) is correct, clause 4(m) should not have mentioned car parking spaces at all, as none of the car parking spaces are designed or constructed to physically link or attach to any flats.   Besides clause 4(m) indeed refers to car parking space/garden/roof with or without any undivided shares:

“… or in any way separate his interest therein whether with or without any of the undivided parts or shares of which he is the owner …” (emphasis added)

53.  Further, clause (1) of the Deed of Variation requires the subject buildings to provide car parking spaces at the rate of not less than 1½ spaces per flat in the buildings.  The provision of 90 car parking spaces to 60 residential flats by the DMC is to comply with the Deed of Variation.  Therefore car parking spaces outnumbering the flats does not imply that car parking spaces could be sold separately and independently of any residential flats.

54.  Clause (1) of the Deed of Variation also restricts the use of the car parking spaces to the parking of the residents’ vehicles only:-

“ … AND will not use or allow to be used the parking spaces so provided for any purpose other than the parking of private motor vehicles belonging to residents of the building or buildings …”

55.  The above car park usage restriction imposed by the Deed of Variation supports the P’s construction of clause 4(m) of DMC that the car parking spaces should only be dealt with together with the flat as one integral unit,which ensures car parking spaces to be assigned to flat owners only.  On the contrary, if car parking spaces could be sold separately and independently of any residential flats, it is likely to result in car parking spaces being used by non-resident owners, which could not be controlled otherwise by the DMC.  

56.  Therefore, I find that the right of an owner to sell his property pursuant to clause 13 is subject to clause 4(m) of the DMC so that car parking spaces/gardens/roofs shall always be dealt with together with the flat as one integral unit and thus the subject car parking spaces could not be disposed of separately from and independently of any flats.

57.  In case my rejection of D’s construction of clause 4(m) is wrong, D arguably succeeds in raising a triable issue as to whether D has shown and proved a good title to the Property in relation to clause 4(m) only. However, it remains that D has failed to answer the 2^nd Requisition in view of the above reasons. 

Estoppel

58.  Lastly, Mr Chong has raised the defence of estoppel by conduct in his submission relying on some transaction records of parking spaces number 7 and 12 from the land search results to show that they have always been assigned separately and independently of any residential flats.

59.  In light of the history of the interpretation of the DMC by the co-owners as to how they dealt with ownership of the parking spaces separately and independently of any residential flats for the past 40 years, Mr Chong submits that it is not open to any co-owners of the building to challenge the construction of Clause 4(m) of the DMC by the concept of estoppel by convention and cites the judgment of by Lord Denning in Amalgamated Investment & Property Co Ltd v Texas Commerce International Bank Ltd [1982] 1 QB 84 CA as follows:-

“… If parties to a contract, by their course of dealing, put a particular interpretation on the terms of it – on the faith of which each of them – to the knowledge of the other – acts and conducts their mutual affairs – they are bound by that interpretation just as much as if they had written it down as being a variation of the contract. There is no need to inquire whether their particular interpretation is correct or not – or whether they were mistaken or not – or whether they had in mind the original terms or not. Suffice it that they have, by the course of dealing, put their own interpretation on their contract, and cannot be allowed to go back on it…When the parties to a transaction proceed on the basis of an underlying assumption – either of fact or of law – whether due to misrepresentation or mistake makes no difference – on which they have conducted the dealings between them – neither of them will be allowed to go back on that assumption when it would be unfair or unjust to allow him to do so. If one of them does seek to go back on it, the courts will give the other such remedy as the equity of the case demands…”

60.  Having considered all the circumstances, I accept that “estoppel by conduct” is an arguable defence to the alleged failure to show and prove a good title to the Property by the D.  Therefore I am unable to order a declaration that the D has failed to show and prove a good title to the Property.

61.  However, in respect of the alleged failure to answer the requisitions by the D is a distinct matter.  It is common ground that D has never mentioned “estoppel by conduct” in any of the letters in reply to any of the requisitions, nor has it been pleaded at all.  Therefore, the issue of estoppel does not change my above finding that the Defendant has failed to answer both requisitions. 

Conclusion

62.  In view of the above finding of the D’s failure to answer both requisitions before the completion, the P is entitled to rescind the Agreement by the letter dated 1 March 2013 and refund of the deposits.

63.  Thus the P succeeds in the claim of the alternative relief, lien over the property, title investigation cost and the return of deposits with interest and costs.  Judgment is entered in favour of the Plaintiff against the Defendant as follows:

(i) a declaration that the Defendant has failed to answer both requisitions in question on title to the Property;

(ii) the Defendant is liable to pay the Plaintiff deposits paid in the sum of HK$155,000 and costs of investigating title in the sum of HK$12,000 pursuant to Clause 18 of the Agreement with interest at judgment rate from the date of the Writ of Summons until payment; and

(iii) a declaration that the Plaintiff has a lien over the Property for the payment of the said sums.

Security for Costs

64.  In light of the judgment entered against the Defendant, I dismiss the Defendant’s application for security for costs.

Costs of both Applications

65.  I make an order nisi that the costs of both applications be to the Plaintiff with certificate for counsel, to be taxed if not agreed.

66.  Last but not the least, I wish to thank Mr Tsui and Mr Chong to whom I am indebted to for their conducting these applications in a fair manner and their valuable assistance rendered to this court.