REGAL SUCCESS VENTURE LTD. v. JONLIN LTD. AND ANOTHER

FACV 15/2000

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 15 OF 2000 (CIVIL)

(ON APPEAL FROM CACV NO. 221 OF 1999)

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J U D G M E N T

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Mr Justice Bokhary PJ:

1. I agree with the judgment of Mr Justice Ribeiro PJ.

Mr Justice Chan PJ:

2. I agree with the judgment of Mr Justice Ribeiro PJ.

Mr Justice Ribeiro PJ:

3. On 6 June 1998, the parties entered into an agreement ("the agreement") for the respondent to purchase from the 1st appellant all the shares in a company called Vast Art Development Limited ("the company"). The 2nd appellant agreed to act as the 1st appellant's guarantor in the transaction. The appellants are here referred to as "the vendors" and the respondent as "the purchaser".

4. By acquiring such shares, the purchaser was indirectly to acquire property owned by the company consisting of shop units and offices in a building called Sun Hing Building, together with the "exclusive right" to use certain exterior parts of that building for the erection of advertising signboards (collectively "the Property").

5. Deposits totalling $16 million were paid by the purchaser. However, completion, due to take place on 7 September 1998, was subject to a condition that the vendors "prove that the Company has a good title to the Property ...... to the satisfaction of" certain solicitors. Messrs Vincent T K Cheung, Yap & Co ("the solicitors") were appointed jointly by the parties to act in that context.

6. The agreement was never completed. On 9 July 1998, the Court of First Instance (Mr Recorder Kwok) delivered judgment in Jumbo King Limited v Faithful Properties Limited (HCMP No 160 of 1998). In consequence of that judgment and of the solicitors' researches into the company's title, they wrote to the purchaser on 20 July 1998 expressing certain views regarding such title.

7. The purchaser took those views to represent an expression of dissatisfaction in respect of the company's title to the Property. They therefore instructed the solicitors to seek the return of the deposits. The vendors refused to comply. On 2 September 1998, the purchaser terminated the agreement and the vendors declared the deposits forfeited on 10 September 1998.

8. The purchaser commenced proceedings for a declaration that it had been entitled to terminate the agreement and seeking orders for the return of the deposits. Those proceedings were dismissed on 25 June 1999 (in HCMP 5118/1998) by His Honour Judge To, sitting as a Deputy Judge of the Court of First Instance. However, his decision was reversed on 14 January 2000 by the Court of Appeal (see [2000] 2 HKC 199) which held that the purchaser had properly terminated the agreement in accordance with the clauses requiring title to be proved to the satisfaction of the solicitors.

9. In the meantime, the Jumbo King decision at first instance was reversed by the Court of Appeal on 12 February 1999 (see [1999] 3 HKLRD 231). This Court confirmed the Court of Appeal's decision on 2 December 1999 (see (1999) 2 HKCFAR 279). The effect of those appellate decisions was to remove the concerns raised by the judgment of Mr Recorder Kwok. The vendors now appeal to this court by leave of the Court of Appeal granted on 25 April 2000.

The relevant clauses

10. The Property is defined in the agreement as follows :-

"ALL THOSE 3,866 equal undivided 62,639th parts or shares of and in ALL THOSE pieces or parcels of ground registered in the Land Registry as KOWLOON INLAND LOT NO.7983 and KOWLOON INLAND LOT NO.7335 And of and in the messuages erections and buildings thereon known at the date hereof as SUN HING BUILDING ...... (the 'Building') TOGETHER with the right to the exclusive use and enjoyment of [specified shops and offices] AND TOGETHER with the exclusive right to use such exterior parts (or the exterior space) of the Building 78 feet along Soy Street and 95 feet along Nathan Road at the corner of Soy Street and Nathan Road as shown and coloured pink on the Plan No.16 annexed to the Assignment for the purpose of erecting signboard or signboards which shall not be more than 30 inches above nor 120 inches below the canopy of the Building SUBJECT to and with the benefit of the Deed of Mutual Covenant ...... AND SUBJECT ALSO to and with the benefit of the existing lettings and tenancies thereof."

11. The clauses which bear on the condition requiring proof of the company's title to the solicitors' satisfaction provide as follows :-

"Clause 5(a)

...... the Vendor and the Guarantor shall at their own costs and expenses prove that the Company has a good title to the Property in accordance with section 13 of the Conveyancing and Property Ordinance (Cap. 219) to the satisfaction of the Solicitors Provided that any requisitions or objections in respect of the title or otherwise in respect of the Property shall be delivered in writing by the Solicitors to the Vendor not later than seven (7) Business Days after the date of receipt of the title deeds and documents concerning the Property by the Solicitors otherwise the same shall be considered as waived (in which respect time shall be of the essence of the Agreement) and if the Solicitors shall make and insist on any objection or requisition in respect of the title which the Vendor and the Guarantor shall be unable or (on the grounds of difficulty, delay or expense or on any other reasonable ground) unwilling to remove or comply with or the Solicitors shall not be satisfied that the Company has a good title to the Property in accordance with section 13 of the Conveyancing and Property Ordinance (Cap. 219), the Purchaser shall have the option to terminate this Agreement by notice in writing to the Vendor or the Guarantor, whereupon this Agreement shall be terminated the Purchaser being in that event entitled to a return of the Deposit which shall have been paid by the Purchaser forthwith and if the return is made within three (3) days without interest, costs or compensation.

Clause 6(a)(iv)

Completion of this Agreement and the sale and purchase of the Sale Shares ...... are conditional upon ...... the Vendor and the Guarantor proving that the Company has a good title to the Property pursuant to the provisions of Clause 5 ......

Clause 6(e)

If the Conditions [in Clause 6(a)] are not fulfilled on or before the Completion Date due to the default of the Vendor and/or the Guarantor ...... , the Purchaser may forthwith determine this Agreement by giving notice of termination in writing to the Vendor or the Guarantor to such effect and the Vendor and the Guarantor shall forthwith return to the Purchaser the Deposit which shall have been paid by the Purchaser and the Purchaser shall also be entitled to recover from the Vendor and/or the Guarantor all damages as the Purchaser may sustain by reason of such default or failure on the part of the Vendor and/or the Guarantor."

The effect of clauses calling for solicitors' approval

12. Where, as in the present case, parties to an agreement for the sale and purchase of property stipulate that the vendor's title is to be subject to the approval of specified solicitors, this may take effect in one of two quite different ways, depending on the contract's construction.

13. In some cases, the parties are taken to have intended title to be shown by the vendor in the usual way, with solicitors examining the title deeds and raising any necessary requisitions. In such cases, the contract is unconditional and the solicitors merely assist in its implementation. This was the construction adopted, for example, in Chipperfield v Carter (1895) 72 LT 487 and in Frederick T Andrews v Angelo Calori (1906) 38 SCR 588, a decision of the Canadian Supreme Court.

14. In other cases, the parties are held to have intended completion of the contract to be conditional upon the solicitors' satisfaction. That was the construction adopted in, for example, Hudson v Buck (1877) 7 Ch D 683; Caney v Leith [1937] 2 All ER 532 and Provost Developments Ltd v Collingwood Towers Ltd [1980] 2 NZLR 205.

15. A third line of cases exists where the solicitors' approval requirement arises in circumstances where the entire transaction is intended to be subject to contract: eg, Masters v Cameron (1954) 91 CLR 353 and Henning v Ramsay [1964] NSWR 1165. That is not the situation in the present case.

16. The difference between the first two classes of contract referred to above was explained by Fry J in Hudson v Buck (1877) 7 Ch D 683 at 687 (referring to the second class of contract first) as follows :-

"In the one case the approval or disapproval of the person specified is, in my opinion, in the absence of bad faith or unreasonable conduct, conclusive as to the goodness of the title shewn. In the other case the goodness of the title may be a matter for the decision of the Court."

That explanation was adopted by the Court of Appeal in Chin Chiu Cheng v Kan Fat Cotton Co Ltd [1999] 2 HKC 502 at 504.

17. The rationale of clauses which render the contract conditional is the avoidance of litigation. This was put by Fry J in Hudson v Buck (1877) 7 Ch D 683 at 687, as follows :-

"[The question of title] might come first before this Court, then before the Court of Appeal, and lastly before the House of Lords. In all these Courts the question of the title might be discussed, and possibly with varying results. ...... It appears to me that it is not unreasonable to suppose that the purchaser should desire to preclude the possibility of such a protracted litigation, and that he should intend to stipulate that the opinion of a particular person, his own solicitor, should be conclusive as to the sufficiency of the title deduced, and that, in the absence of compliance with that condition, the contract should not be capable of being enforced."

Accordingly, where a "solicitors' satisfaction clause" operates as a condition of completion, the effect of the bargain is that the purchaser is only obliged to complete where the requisite approval or expression of satisfaction is forthcoming. In the absence of "bad faith or unreasonable conduct" on the part of the solicitors or the purchaser, the solicitors' withholding of approval entitles the purchaser to terminate the contract, even if the grounds for the solicitors' dissatisfaction with the title might ultimately be shown to have been invalid.

The nature of the bargain in the present case

18. It was submitted on behalf of the vendors that the solicitors' role in the present case was limited to the implementation of the agreement. It was urged, in other words, that this case falls within the first, and not the second, class of agreements described above and that the parties contemplated merely that the vendors were to prove title in the usual way.

19. The vendors stressed the fact that clause 5(a) includes a mechanism for raising requisitions or objections, contending that this shows that the solicitors were intended merely to verify title in accordance with ordinary conveyancing practice. This view of the agreement formed the foundation of many of the arguments advanced, including those aimed at persuading the court that the solicitors' objection to title was bad in law, that the purchaser was in breach of conveyancing principles which afford vendors a reasonable opportunity to respond to requisitions and to rectify deficiencies in the title, and so forth.

20. Such a construction of the agreement cannot be accepted. Properly construed, it is an agreement falling within the second category of contracts discussed.

Construction of clauses 5(a) and 6(a)

21. By the opening words of clause 5(a), the parties agreed to place a burden on the vendors to "prove that the Company has a good title to the Property ...... to the satisfaction of the Solicitors". Those words lay down the prime contractual obligation with which this appeal is concerned.

22. The words which follow as a "proviso", up to and including the words "shall be of the essence of the Agreement", deal with the possibility that the solicitors may wish to raise requisitions or objections (together "requisitions") in the course of determining whether title is proved to their satisfaction. A seven-day time limit is placed on the raising of such requisitions.

23. Next there follow words conferring on the purchaser an option to terminate. First, the words refer to cases where the solicitors have raised requisitions which remain unanswered. Secondly, they refer to the situation where "the Solicitors shall not be satisfied that the Company has a good title to the Property in accordance with section 13 of the Conveyancing and Property Ordinance (Cap. 219)." The provisions describing these two sets of circumstances are contained in the same sentence, linked by the word "or". What the clause thereby prescribes is that upon either situation arising, the purchaser acquires an option to terminate the agreement by notice in writing to the vendors.

24. If the option is exercised, the agreement terminates and the purchaser becomes entitled to the return forthwith of the deposits.

25. The effect of clause 5(a) is therefore in summary (i) to oblige the vendors to show good title to the satisfaction of the solicitors and, (ii) should they fail to do so (whether because requisitions have been left unanswered or because the solicitors have independently decided that they are not satisfied as to title), to enable the purchaser to terminate the agreement and recover the deposits paid.

26. The agreement therefore takes effect as a conditional contract with the consequences discussed in the authorities traceable back to Hudson v Buck (1877) 7 Ch D 683. Its conditional nature is expressly confirmed by clause 6(a)(iv).

The construction contended for by the vendors

27. The construction adopted above attributes a disjunctive meaning to the word "or" linking the descriptions of the two situations mentioned so that they are treated as alternative grounds for termination. It was argued for the vendors that the word "or" should not be so read.

28. The court was in effect invited to replace the word "or" with the word "and" so that the option to terminate in clause 5(a) could only arise if the solicitors had first raised requisitions which had been left unanswered and had thereafter come to the conclusion that good title had not been shown to their satisfaction.

29. There is no basis for re-writing clause 5(a) in that way. The clause is perfectly workable without modification, giving the word "or" its ordinary disjunctive meaning in the context. Moreover, this being a case where the solicitors acted for both parties, their raising of requisitions against the vendors - for whom they also act - can at best be regarded as artificial. This militates against construing the contract as one which makes the raising of such requisitions essential for the operation of clause 5(a).

30. Another aspect of the vendors' argument that the agreement should be construed as contemplating merely such title investigation as one would associate with ordinary conveyancing transactions, was their emphasis on the fact that clause 6(e) gave an option to terminate if conditions laid down by the agreement, including the clause 5(a) condition, were not satisfied at the completion date. It was submitted that this reflected the usual rule that vendors are allowed until the completion date or until shortly before then to answer any outstanding requisitions. On this basis, it was argued that termination by the purchaser on 2 September 1998 was premature and constituted a repudiation of the agreement.

31. That argument is untenable. It ignores the option to terminate under clause 5(a) which arises upon that clause's conditions being satisfied, without reference to the completion date. Where no clause 5(a) option is exercised, a separate and additional option to terminate the agreement under clause 6(e) comes into play if, at the completion date, any clause 6(a) conditions have still not been met. Accordingly, the fact that the option to terminate under clause 6(e) operates only at the completion date does not assist the vendors' case. On the contrary, the existence of the two independent options to terminate is a powerful indication that clause 5(a) is not concerned merely with prescribing the adoption of usual conveyancing practice.

Was the clause 5(a) option to terminate activated?

32. On the footing that completion in the present case was conditional upon proof of title to the solicitors' satisfaction, the vendors contended that the solicitors did not in fact activate clause 5(a).

33. It was submitted on the contrary for the purchaser that the solicitors had done so by their letter dated 20 July 1998, which, so far as material, reads as follows :-

"In view of the recent decision in the case, Jumbo King Limited v Faithful Properties Limited & Others MP No. 160 of 1998, we take the view that the title of the Company in respect of its exclusive right to use such exterior parts (or the exterior space) of Sun Hing Building ...... noted in the Schedules to the Assignment and the Confirmatory Assignment, is defective.

This is because no undivided share of and in Kowloon Inland Lot No. 7983, Kowloon Inland Lot No. 7335 and Sun Hing Building has been allocated to such area.

We shall advise Regal Success Venture Limited on this issue accordingly, and shall revert to you after taking Regal Success Venture Limited's instructions on this issue."

The purchaser argued that the statement that title was defective was an unequivocal expression of dissatisfaction which activated the clause 5(a) option. It then sought to exercise such option about five weeks later when, by letter dated 27 August 1998, it instructed the solicitors to demand the return of the deposits from the vendors.

34. The vendors however submitted that in their letter dated 28 August 1998 responding to those instructions from the purchaser, the solicitors substantially qualified the view they had expressed on 20 July.

35. The letter of 28 August contains three numbered paragraphs, in the first of which, the solicitors pointed out that material differences existed in the company's conveyancing arrangements as compared with the arrangements dealt with in the Jumbo King decision. They indicated concern that such differences "might affect a court's decision if the present issues shall be taken to the court for resolution". They therefore invited the purchaser to reconsider its position under the agreement and concluded as follows :-

"If, after you have re-considered your position, you still decide to instruct us to attend to the matters noted in your letter dated 27 August 1998, we should be grateful if you could let us have your instructions in writing signed by one of your directors for good records."

The reference to "the matters noted" was a reference to the purchaser's instructions to seek the return of the deposits. By return, the purchaser confirmed such instructions in writing, as requested.

36. It was submitted on the vendors' behalf that if the solicitors' letters of 20 July and 28 August are read together, the solicitors cannot be taken to have expressed any concluded view that they were dissatisfied with title for the purposes of clause 5(a). Accordingly, it was submitted that the purchaser was not entitled to exercise any option to terminate as it wrongfully purported to do.

37. Such a construction of the letters cannot be accepted. The letter of 20 July contained an unequivocal statement that the solicitors considered title to be defective and prima facie activated the clause 5(a) option to terminate. While it is true that, by their letter of 28 August, the solicitors to some extent qualified the view previously expressed, they did not resile from that view. The second numbered paragraph of that letter identified matters which continued to cause concern regarding title and, in requesting the purchaser to put its instructions in writing if it wished a demand to be made for the return of the deposits, the solicitors impliedly indicated that they considered the option still exercisable and therefore that they were still dissatisfied with the company's title to the Property.

Not "land"

38. A separate argument advanced on behalf of the vendors was that the doubts entertained by the solicitors did not relate to a right in or over "land" and therefore did not fall within or trigger the option under clause 5(a).

39. The obligation on the vendors was to satisfy the solicitors that the company had good title to "the Property" as defined in the agreement. The exclusive right to use the identified exterior parts of the building for the stated purposes was part of "the Property" so defined. Accordingly, it was part of the vendors' obligation to satisfy the solicitors that the company had good title to such "exclusive right". None of this raises any question as to whether such a right is properly classified as "a right in or over land".

40. The vendors' argument therefore involves the contention that clause 5(a) must be construed as impliedly being concerned only with title to "land". It relies on the fact that the clause requires proof of title to the solicitors' satisfaction "in accordance with section 13 of the Conveyancing and Property Ordinance (Cap. 219)".

41. Section 13 is aimed at facilitating proof of title to land, inter alia, by defining what constitutes sufficient proof. The argument was therefore that the parties' decision to incorporate into the agreement the limits to proof of title to land laid down by section 13 demonstrated their intention that clause 5(a) should operate only in relation to title to "land" as defined by the Ordinance. Since (so it was argued) the rights in question do not involve title to land, they fall outside the operation of clause 5(a).

42. The short answer to this somewhat elaborate argument is that the queried rights plainly and self-evidently do fall within paragraph (b) of the definition of "land" in the Ordinance being "rights or interests in or over land".

43. The decision in Leung Kwok-kau v Tam So-wa trading as Sun Cheong Electric and Plumbing Co [1968] HKLR 673, relied on by the vendors, is not authority to the contrary. The Full Court there decided that no leasehold or other interest in land could be conveyed where the subject-matter of the agreement consisted solely of the outer surface of a wall existing as a two-dimensional plane. Nothing in the decision casts any doubt on the proposition that undivided shares in land together with rights to the exclusive use of defined portions of the building (including its vertical parts) on the land to which those undivided shares relate, constitute rights or interests in or over land.

When solicitors' opinions are invalidated by unreasonableness

44. Having concluded that the agreement was conditional on the company's title to the Property being proved to the solicitors' satisfaction and that the solicitors had sufficiently expressed dissatisfaction with such title, the question that next falls to be considered is whether the solicitors' view was so unreasonable as to invalidate their opinion for the purposes of clause 5(a).

45. As previously discussed, the rationale for adopting a solicitors' satisfaction clause is to avoid protracted litigation in the event that the transaction should throw up legally uncertain points on title. If this object is not to be defeated, the solicitors' opinion should not lightly be susceptible to challenge on the basis that differing views are to be preferred.

46. On the other hand, the parties must obviously be taken to intend that the solicitors entrusted with the task of examining title must act with professional integrity and with at least minimum standards of professional competence.

47. The principles established by the authorities seek a balance between the two objectives mentioned above. The early cases stressed that solicitors' opinion is conclusive, but only "in the absence of bad faith or unreasonable conduct" (Hudson v Buck (1877) 7 Ch D 683 at 687). Later cases have provided further guidance on how those concepts operate.

48. Where, as in the present case, the parties agree that the solicitors are to consider the question of title,     they must confine themselves to an examination of that question applying their professional expertise. They are not, for example, entitled to express dissatisfaction based on extraneous considerations, such as their view of the commercial desirability of the transaction : Provost Developments Ltd v Collingwood Towers Ltd [1980] 2 NZLR 205 at 208.

49. Bad faith would arise where, for instance, solicitors express their opinion, not on the basis of their professional judgment, but simply in order to help their client to get out of the contract or for similar reasons: eg, Caney v Leith [1937] 2 All ER 532 at 538; Gordon Leaseholds Ltd v Metzger (1967) 61 DLR (2d) 562 (Ontario High Court); Boote v R T Shiels & Co Ltd [1978] 1 NZLR 445 at 451.

50. Where the solicitors, apparently acting in good faith, express their view as to title, the court will not invalidate that opinion on the basis of "unreasonableness" even if its legal basis may be debatable unless the opinion can be seen to be patently wrong or absurd.

51. Farwell J put the test as follows :-

" ...... what do the judges mean when they talk about unreasonableness? In my judgment, when they are using the word 'unreasonable,' they are dealing with a position where the solicitors are not acting in good faith--that is to say, where, to assist their client, and get him out of the contract, or for some other reason, the solicitors refuse to approve the lease, without giving the matter any consideration at all, or where their reasons for disapproval are so patent and absurd that the court can say in a moment: 'This is ridiculous and the solicitors cannot possibly make such an objection as that.' " Caney v Leith [1937] 2 All ER 532 at 538

52. While it may not be necessary to go so far as to require the opinion to be so objectionable that it suggests bad faith on the part of the solicitor, Farwell J's approach of permitting a challenge only where the objection can quickly be seen to be absurd or ridiculous, is a test that has been widely adopted and is plainly the appropriate approach to "unreasonableness" in this context.

53. In Chin Chiu Cheng v Kan Fat Cotton Co Ltd [1999] 2 HKC 502, the Court of Appeal held that the solicitors had acted unreasonably. In that case, the parties had agreed that the purchaser could terminate if it was his solicitors' opinion that title to the property was not in order. The solicitors objected on the ground that there had been breach of a condition in the government grant stipulating that there should be no assignment of any floors in the building until the deed of mutual covenant had been executed. Such a deed had in fact been executed but only shortly after the assignments in question. It was a breach that had taken place some eleven years earlier with no one suggesting in the meantime that enforcement action might be taken.

54. Nazareth VP called the objection "so far fetched as to be beyond any reasonable possibility and wholly outside the generous ambit of reasonable disagreement" (at p 506). Godfrey JA stated (at p 505) that "any such enforcement proceedings would be laughed out of court." It is therefore not surprising that the Court of Appeal held that the objection was patently bad. It was an approach consistent with the test of patent error or absurdity discussed above.

55. However in reaching their decision, both Godfrey JA and Nazareth VP used language sometimes found in discussions of unreasonableness, irrationality and judicial discretion in other areas of the law (eg, In re W (an Infant) [1971] AC 682 at 700; R v Home Secretary, ex p Hindley [1998] QB 751 at 777). Thus, Nazareth VP spoke of "the generous ambit of reasonable disagreement" and Godfrey JA stated (at p 505) as follows :-

"So the opinion of the purchaser's solicitors that the title here was 'not in order' fell, as it seems to me, outside the band of possible decisions in which reasonable disagreement was possible."

Such passages in the Court of Appeal's decision should not be read as importing a different or less stringent test for unreasonableness in the present context.

Was the solicitors' opinion invalidated by unreasonableness?

56. It was argued on the vendors' behalf that in the present case, the expression of dissatisfaction based on the Jumbo King decision was patently wrong because the conveyancing arrangements which had been adopted in relation to the company's Property were different, making the Jumbo King decision distinguishable. It was furthermore argued that the solicitors should in any event have concluded that the Jumbo King decision itself was plainly wrong, simply by applying basic principles of conveyancing law.

57. The argument fails on both grounds. The solicitors' concerns as to title and their consequent expression of dissatisfaction cannot be regarded as unreasonable in the light of the circumstances which existed at the time when they expressed their opinion.

58. The solicitors had coincidentally acted in the Jumbo King case itself and so were intimately familiar with the issues raised by that decision. In their letters dated 20 July and 28 August 1998 respectively, they identified at least three separate matters as a cause for concern. Thus, they were worried that the company might be unable to convey good title in respect of the exterior parts because undivided shares had not been specifically allocated to those parts. They were also afraid that such deficiency could not be cured by attaching the right to use those exterior parts to undivided shares already allocated to shop or office units in the building. Although the title deeds might be distinguishable from the documents in the Jumbo King case, the solicitors had discovered inconsistencies between the registered particulars of the Property in the Land Registry and such title deeds.

59. Given the then prevailing state of the law, the solicitors were entitled, without unreasonableness, to consider the risks posed by those issues sufficient to justify their expression of dissatisfaction.

60. They were faced with a carefully reasoned judgment of the Court of First Instance. Significantly, the doubts that it raised were only dispelled after the case had progressed all the way to this court. Whatever the solicitors may themselves have thought of the merits of the Jumbo King decision, it is wholly unreal to suggest that they could have ignored that judgment and pronounced themselves satisfied with the company's title to the Property.

61. The course that they steered cannot be criticised as unreasonable, far less as "patently wrong" or "ridiculous". Accordingly, this appeal must be dismissed.

Sir Alan Huggins NPJ:

62. I agree and there is nothing I can usefully add.

Lord Nicholls of Birkenhead NPJ:

63. I agree.

Mr Justice Bokhary PJ:

64. The Court unanimously dismisses this appeal with costs.

Representation: