FOK CHUN YUE BENJAMIN v. YAU WING CO LTD AND ANOTHER

HCMP 3250/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 3250 OF 2015

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D E C I S I O N

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The Application

1. I have an application before me under ss732 and 733 of the Companies Ordinance, Cap 622, for leave to commence a statutory derivative action.  The application is brought by Fok Chun Yue Benjamin (“Ben”), for leave to commence an action on behalf of Yau Wing Company Limited (“Company”) of which he is a director, against his Brother Fok Chun Wan Ian (“Ian”).  The application forms part of a larger dispute between some members of the Family of the late Henry Fok (“Mr Fok”) in connection with his estate (“Estate”), which as is generally known was very substantial.  The application was issued on 8 December 2015.  It has been brought on quickly because part of the claim that Ben wishes the Company to pursue will become time barred on 21 January 2016 if it is not time barred already.

2. On 21 December 2015 Mimmie Chan J granted an order that was not opposed by Ben that Ian be joinded as a respondent to the application.  I will say more about that order at the end of this decision.  Before me Ben was represented by Clifford Smith SC and Gary Lam, the Company by Anson Wong SC and Ross Li and Ian by Warren Chan SC and Jenkin Suen.

The Claim

3. The claim that Ben wishes to bring on behalf of the Company is set out in a draft Statement of Claim prepared for the purposes of this application. It can be summarised quite shortly. 

4. The Company is 99.9% owned by Henry Fok Estates Limited (“HFE”).  The directors of the Company are three of Mr Fok’s children by his first marriage: Ben, Ian and Tim.  In addition Lam Sik Lau, who is not a Family member, is also a director. HFE’s shareholding is held by members of Mr Fok’s first Family and the Estate.  As I understand it is the members of Mr Fok’s first Family, who are interested in the relevant part of the Estate.  Mr Fok had two further marriages.  His children by his 2^nd and 3^rd Wives are not interested in HFE.

5. Mr Fok acquired substantial interests in land in Nansha, which are currently owned by Panyu Development Company Limited (“PND”).  The first shareholders of PND were Ian and Fok Ying Tung Panyu Development Foundation Limited (“Foundation”). Ben alleges that Ian had the most involvement of any of Mr Fok’s children in their Father’s business affairs.  The Foundation was originally set up for charitable purposes, although it is not currently recognised by the Hong Kong Inland Revenue as being a charity for tax purposes.  On 30 June 1992 Ian transferred the one share registered in his name to the Company (“One Share”). On 1 September 1997 the Company transferred the one share to the Foundation. The consideration was HK$1.  The instrument of transfer, bought and sold notes and board minutes are all dated 11 June 1997.  In addition on 11 June 1997 the Foundation granted an option to the Company exercisable before 30 June 2007 to repurchase the One Share (“Option”).  The purchase price was also HK$1.  In addition the Company if it exercised the Option would have to pay the Foundation the face value of a substantial shareholder’s loan with accrued interest (“Shareholder Loan”), which would be assigned to the Company.

6. It is Ben’s case that whatever the terms of the Option the true and intended position was that HFE was the ultimate beneficial owner of the One Share.  Whether or not this is correct is the subject of other litigation, which I shall refer to later in this decision.  In the draft Statement of Claim an alternative claim is advanced, which is as follows.  Ian did not inform the Board of the Company of the grant of the Option.  He did not discuss with them the possible exercise of the Option as the date by which it had to be exercised approached.  Instead he allowed it to lapse.  Accordingly, if HFE is not the beneficial owner of the One Share by virtue of the agreements and understandings reached at the time the One Share was transferred to the Foundation, the failure to exercise the Option has caused loss to Company.

7. Ben seeks leave in order that a protective writ can be issued seeking damages against Ian for:

(1)  Breach of fiduciary duty in failing to inform the other directors of Company of the Option or taking steps to exercise the Option; and

(2)  Fraudulent misrepresentation arising from Ian’s failure to disclose the Option, which constituted a representation that he did not have any information that it was in the interests of the Company it be told or a representation that there was no such thing as the Option.  It is alleged that Ian either knew, or was reckless as to whether, such failure would convey to Company the alleged representations.

(3)  Negligence arising from the same matters relied on in respect of the claim for breach of fiduciary duty or the representations.

8. For the purposes of this application the Company and Ian accept that Ian’s failure to tell Ben or the other directors of Company about the Option until the expiry date has passed at least arguably gives rise to a breach of duty or a misrepresentation.  The Company and Ian oppose the application on three grounds.  First, that any claim in negligence is clearly time barred. Secondly, that commencement of proceedings against Ian would be a breach by the Company of a Settlement Agreement entered into by various parties including the Company and Ian to settle all matters concerning the Estate and related matters.  Thirdly, they suggest that the Company would not have been able to settle the Shareholder Loan and thus the Option would not have been exercised.

Legal Principles

9. Before addressing these issues I will deal briefly with the principles that govern the determination of applications for leave under ss732 and 733 and, which are not in dispute.  I have most recently considered these principles in paragraphs 6 to 8 of my judgment in Yu Yuchuan & Others v China Shanshui Investment Company Limited [1], which it is convenient to quote.

“6. Sections 732 and 733 of the Companies Ordinance (Cap. 622) provide as follows:

‘732. Member of company or of associated company may bring or intervene in proceedings:

(1) If misconduct is committed against a company, a member of the company or of an associated company of the company may, with the leave of the Court granted under section 733, bring proceedings in respect of the misconduct before the court on behalf of the company.

(2) If, because of misconduct committed against the company, a company fails to bring proceedings in respect of any matter, a member of the company or of an associated company of the company may, with the leave of the Court granted under section 733, bring proceedings in respect of the matter before the court on behalf of the company.

(3) …

(4) The cause of action in relation to the proceedings under subsection (1) or (2) is vested in the company. Any of those proceedings must be brought in the name of, and the relief (if any) must be sought on behalf of, the company.

733. Leave of Court to bring or intervene in proceedings

(1) On application by a member of a company or of an associated company of a company, the Court may grant leave for the purposes of section 732(1), (2) or (3) if it is satisfied that –

(a) on the face of the application, it appears to be in the company’s interests that leave be granted to the member;

(b) in the case of:-

(i) an application for leave to bring proceedings under section 732(1) or (2), there is a serious question to be tried and the company has not itself brought the proceedings; or

(ii) …; and

(c) except where leave is granted by the Court under subsection (5), the member has served a written notice on the company in accordance with subsection (3), and the notice complies with subsection (4).

(2)   The Court may refuse to grant leave if it is satisfied that –

(a) in the case of an application for leave to bring proceedings under section 732(1) or (2), the member has, in the exercise of any common law right, brought proceedings on behalf of the company in respect of the same cause or matter; or

(b) in the case of an application for leave to intervene in proceedings under section 732(3), …

(3)   The written notice must be served on the company, at least 14 days before the member applies for leave in respect of the company –

(a) in the case of a company as defined by section 2(1), by leaving the notice, or by sending the notice by post to, its registered office; or

(b) in the case of a non-Hong Kong company, in a manner that the notice is sufficiently served on the company by virtue of section 803.

(4)   The written notice must state –

(a) the member’s intention to apply for leave for the purposes of section 732(1), (2) or (3) in respect of the company; and

(b) the reasons for that intention.

(5)   The Court may grant leave to dispense with the service of a written notice for the purposes of subsection 1(c).’

7.   In determining whether or not to grant leave under section 733, the principal matters that the court is concerned with are:

(1) whether the proposed action appears to be in the interests of the company; and

(2) whether there is a serious question to be tried[2].

8.   The threshold in respect of both these criteria is low.  As Lord Millett notes at paragraph 55 of his judgment in Waddington Ltd v Chan Chun Hoo [3] “in applying for leave the plaintiff is not required to establish a prima facie case but only that there is a serious question to be tried.”  Consistent with this in assessing applications for leave the prospects of success are to be investigated only to a limited extent; and the court should be slow to find against the applicant unless his prospects are so slim that he cannot be said to have any expectation of success[4].  At this stage it is not the court’s function to try to resolve conflicts of evidence or difficult questions of law, which require substantial argument and deliberation.  In practice, if the applicant is able to produce a draft pleading that sets out a case with some prospect of success when only the allegations contained in the pleading are considered, the criteria will be satisfied unless the respondent can demonstrate fairly readily that there is a serious flaw in the claim and that it has no real substance[5].  In most cases, if a “serious question to be tried” has been demonstrated, it is likely to appear to be in the company’s interests to bring proceedings.[6] ”

Grounds of Opposition

10. The Option expired on 30 June 2007.  It follows, and this is not in dispute, that any cause of action based on a failure by Ian to inform other directors about the Option to take steps for it to be exercised thus causing loss to the Company, accrued immediately after the Option expired.  The Claim for fraudulent misrepresentation is not time barred as s20 of the Limitation Ordinance, Cap. 347, provides that there is no time-bar for a claim based on fraudulent breach of a director’s fiduciary duties[7].  The claim for negligence is on the face of the matter time barred as the 6 year limitation period under s4 of the Limitation Ordinance has expired.  The Company and Ian argue that this being so the Court should not grant leave to commence a derivative action for negligence.

11. Section 31 of the Limitation Ordinance provides for an extension of the time period in section 4:

“31. Special time limit for negligence actions where facts relevant to cause of action are not known at date of accrual

(1) This section applies to any action for damages for negligence, other than one to which section 27 applies, where the earliest date on which the plaintiff or any person in whom the cause of action was vested before him first had both–

(a) the knowledge required for bringing an action for damages in respect of the relevant damage; and

(b) a right to bring such action,

(referred to in this section as the “date of knowledge”) falls after the date on which the cause of action accrued.

(2) The period of limitation prescribed by section 4(1) in respect of actions founded on tort shall not apply to an action to which this section applies.

(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4).

(4) That period is either–

(a) 6 years from the date on which the cause of action accrued; or

(b) 3 years from the date of knowledge, if that period expires later than the period mentioned in paragraph (a).

(5) In subsection (1) “the knowledge required for bringing an action for damages in respect of the relevant damage” (就有關損害而提出損害賠償訴訟所需的知悉) means knowledge–

(a) of such facts about the damage in respect of which damages are claimed as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment;

(b) that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence;

(c) of the identity of the defendant; and

(d) if it is alleged that the act or omission was that of a person other than the defendant, of the identity of that person and the additional facts supporting the bringing of an action against the defendant.

(6) Knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant for the purposes of subsection (1).

(7) For the purposes of this section or section 33 a person’s knowledge includes knowledge which he might reasonably have been expected to acquire–

(a) from facts observable or ascertainable by him; or

(b) from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek,

but a person shall not be taken by virtue of this subsection or section 33 to have knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.”

12. Ian says that he, and the other directors of the Company, did not have “the knowledge required for bringing an action in damages in respect of the relevant damage” until he saw the Option, which was 23 January 2013 when a copy was provided to Ben and the other directors by Ian’s solicitors, Hobson & Ma.

13. Section 31 of the Limitation Ordinance has been considered and its operation explained by the Court of Final Appeal in Kensland Realty Ltd v Tai, Tang & Chong [8]. As Ribeiro PJ explains in paragraph 73, s31 is concerned with the plaintiff’s knowledge relating to the damage incurred and not with the defendant’s liability.  Section 31(5) lays down an objective test: would a reasonable person with knowledge of the facts who had suffered such damage have considered it sufficiently serious to justify instituting proceedings.  In s31(7) “knowledge” is to be taken to include knowledge which the prospective plaintiff might reasonably have been expected to acquire from facts observable or ascertainable by him or from facts ascertainable by him with appropriate expert advice.  As Riberio PJ goes onto explain in paragraph 79:

“79. Section 31(5)(a) establishes a low threshold. If a reasonable person knows that the defendant will not contest liability and will pay up, quite minor damage may be thought to justify the cost and effort of issuing a writ. It follows that where a plaintiff becomes aware or has imputed to him knowledge of some actual damage, provided that it is not so trivial as to be not worth bothering about, the knowledge requirement of s.31(5)(a) is likely to be satisfied.”

14. Knowledge of the relevant damage will thus be taken to be attributable to a person at the time at which he can reasonably have been expected to know sufficient relevant information, having in the first instance become aware of facts, which would cause a reasonable person to inquire further into the circumstances of the relevant damage, if he had sought assistance from lawyers or other suitable experts and would have been likely to have obtained advice that would have led a reasonable person to conclude that the damage was sufficiently serious to justify commencing proceedings. 

15. It is clear from Ben’s own evidence that he knew of the Option long before he received a copy from Hobson & Ma.  In his 4^th affirmation filed in HCA 2155 of 2011 he deals at some length with the circumstances in which he became aware of the Option.  He says this in paragraphs 84 to 87.

“84.  What in fact happened was that, after the board had discussed all matters on the agenda, and just as the meeting was about to conclude and all participants were ready to leave the room, Ian suddenly said that Yau Wing had an option to repurchase one share in Panyu Development, which was originally registered in the name of Yau Wing but was subsequently “sold” to FYTF, and that the option had lapsed. Although it is stated in the minutes of the board meeting subsequently sent to me that the sale of the one share in Panyu Development was “under the terms and conditions as stipulated in an undertaking given by the Company whereby the Company agreed to grant to Yau Wing Company, Limited an option to purchase back the sale share”, I certainly do not remember Ian mentioning the word “undertaking”, nor did he explain what were the terms and conditions, particularly its expiry date and the nominal exercise price of HK$1.

85.  Ian then said something to the effect that it was possible to engage a lawyer to advise the Board “on the grant of a further option to Yau Wing, for purchase back of the sale share”, notwithstanding that the option had “lapsed”.

86.  Besides Ian, I had no idea of what to make of his remarks, which appeared to be no more than off the cuff remarks, which were made completely out of context in that they did not relate to any of the business on the agenda for that meeting, or anything else which was in fact discussed. No document in support was produced by Ian at the time, nor was any document pertaining to the “undertaking” annexed to the minutes supplied to me later. Copies of the Notice and the minutes of the Board Meeting of FYTF held on 25 November 2011 (Exhibit 6 to the KPMG Interim Report) are at pages 254 and 34, BF-4.

87.  My recollection of what transpired towards the end of the meeting, specifically the lack of any particulars of the Yau Wing Option, is reinforced by the fact that both of the other two directors, Tim and Lam Sik Lau, told KPMG that they could not even remember that Ian had mentioned the Yau Wing Option at all (paragraph 4.4.4 of the KPMG Interim Report, at page 14, BF-4). As I have explained, the Option Letter came to light only in January 2013 as an attachment to Hobson & Ma’s letter dated 23 January 2013 to KPMG, which was copied to NRFHK.”

16. Ben knew that the One Share conferred a valuable interest, because of the significant land owned by PND.  It seems to me that Ben had sufficient knowledge of the relevant damage for the purposes of section 31 when he knew of the granting of an Option to acquire the One Share and that Ian had allowed it to expire.  If he was unclear about the implications of Ian’s remarks, which were recorded in the minutes of the meeting, he should have instructed lawyers, who it seems to me would almost certainly have told him that it appeared that a valuable option had for no apparent reason been allowed to lapse and that he should insist on seeing the Option otherwise he would have to take steps to protect the Company’s position.  As it was he did nothing in the months immediately following the meeting on 25 November 2011.  On 11 April 2012 Ben wrote a 10-page letter to Ian and the other directors about various matters arising from a board meeting held on 29 March 2012.  On page 4 he says this:

“I believe that my understanding of Father’s intention and instructions regarding HFE is shared by other First Family members, including Pat and Nora. At the board meeting on 29 March 2012, Ian seemed to represent that Father intended HFE to engage in the PRC projects via the shareholding of Yau Wing Company Limited (Yau Wing) in Panyu Development Company Limited. That was the first time I heard of Ian making the representation despite numerous letters from me over the last 3 years to the Board of HFE as to what Father’s true intent was regarding HFE. Ian has previously mentioned about an option exercisable by Yau Wing to repurchase certain assets from FYT Foundation. However, at no time has he ever produced any documentary evidence to support the alleged option nor explained that was related to Father’s intention about HFE. Further, I have asked Ian for a full explanation and details as to the alleged option to repurchase certain assets from FYT Foundation. Ian has never responded to my request. Therefore, I doubt if any credence can be given to Ian’s representation, which appears to have been contrived in an attempt to justify his actions in the continuing asset stripping of HFE to the detriment of its shareholders and their beneficiaries.”

17. Ben says that he did not get a response.  Mr Smith argued that in these circumstances he cannot be attributed with sufficient knowledge of damage for the purposes of section 35.  I disagree.  It seems to me that he had clearly been put on inquiry that a valuable asset might have been lost.  If he was concerned, and in my view he quite legitimately would have been, that he had not been shown the Option or told of its precise contents, as I have already said he knew enough to obtain advice on how to address his concerns.  I can see no reason not to assume that this would either have led to the Option being provided or, if it were not, Ben being advised to take action to protect the Company’s position.  It seems to me that this should reasonably have taken place within 6 months of the April letter at the very latest.  This being the case assuming that the limitation period were to be extended to 3 years from the date Ben had the knowledge of the relevant damage that period has clearly expired.  It seems to me that this is sufficiently clear from Ben’s own evidence that he has failed to demonstrate that there is a serious issue to be tried in respect of the negligence claim. I, therefore, decline to grant leave to commence a derivative action in respect of the negligence claim.

18. The second ground of opposition concerns the effect of a settlement agreement dated 3 August 2012 (“SA”) made between 31 parties including Ben, Ian and the Company recording, to use the language of recital C “a global family settlement including matters which do not arise directly in relation to the administration of the Estate [of Mr Fok] be reached now to avoid any future dispute.” Unfortunately, disputes arose after the making of the SA, which has led Ben to seek rescission of the SA in so far as it effects “the First Family Siblings”, namely, Ben, Ian and their siblings Nora, Pat and Tim.  The justification for seeking rescission includes Ian’s failure to inform Ben about the Option and related matters prior to the SA, which was in breach of an alleged duty of fair dealing.

19. The Company and Ian both argue that SA settled any claim that the Company might otherwise have had against Ian.  Ben is not seeking to rescind the SA as against the Company and the Company is bound by it and it cannot be in the interests of the Company to commence an action that would immediately put it in breach of contract. Accordingly, the application should be refused.

20. I disagree.  The SA does not contain a waiver by each party of any claim that each has or may have against the other.  The SA is in the nature of a commercial agreement to divide up assets.  This is illustrated by clause 19(e) on which both the Company and Ian place some weight.  It provides:

“19(e) In consideration of the payment at the HFE Completion by China Option Newco to HFE of HK$1 (the valid and sufficient receipt of which is hereby acknowledged), HFE, Ian and Tim shall procure the transfer to China Option Newco of the benefit of any option(s) that the HFE Group presently has or has had and which has been exercised and/or transferred either to an HFE Group company or any other entity, or is presently entitled to acquire or obtain, in or in respect of projects in mainland China (including but not limited to option(s) in respect of the projects in Nansha held by Panyu Development or any other entities under FYTF), or if such transfer is not possible, such option(s) shall be held on trust for China Option Newco. HFE, Tim and Ian shall take all such steps as may be necessary to secure such rights and interests in the option(s) for the benefit of China Option Newco, including the right to sue and defend proceedings in the name of the grantee(s) of the option(s) in respect of the same, and shall procure the consent of the grantor(s) and any necessary approvals from the relevant authorities or parties in order to give effect to this Clause 19(e). In the event that any option not exercised within one month prior to the expiry of the option, it shall be transferred and sold to HFE at HK$1;”

21. I understand that this is a reference to such rights as HFE had, whether through the Company or otherwise, in PND or any other entity owned by the Foundation.  The Company and Ian say that this was a reference to the Option.  Ben says that he had not seen the Option at the time the SA was made and that it was a reference to what he believed were rights that HFE had under an arrangement of which he was not fully aware.  Be that as it may, clause 19(e) provides for a transfer of property as part of a broad agreement between Family members about how the Estate should be distributed.  It does not talk in terms of claims or the settlement of litigation.  In clause 48 it expressly recognises and provides for the continuation of certain litigation.  I accept that the SA envisages that it will bring to an end such arguments as existed between Family members concerning the allocation of the Estate (and I understand that they go beyond the arguments between Ben and Ian referred to in this decision) and if that result were achieved one would not expect Yau Wing to be suing Ian, but it does not seem to me that the SA contains a waiver of claims that the Company may have against Ian.

22. On 12 February 2015 the Court of Appeal delivered judgment in CACV 13, 16 and 17 of 2014. The Appeal was from a judgment of Poon J in HCA 2155 dated 3 January 2014 in which he ordered the stay of HCA 2155 of 2011 “save and except for the purpose of perfecting and implementing the Settlement Agreement in full as expeditiously as possible”.  The appeal concerned whether in the circumstances of the case that order was correctly made.  The Court of Appeal set aside the order.  In its place the Court of Appeal ordered that the action be stayed pending the determination of the legal proceedings by Ben, Nora or Pat to be filed within 28 days concerning the Settlement Agreement.  It was the extension of this time period, which as I understand it led to the present application being made so late.  In paragraphs 32 and 35 of their judgment the Court of Appeal says this:

“32. At the same time, whatever order the judge made could not have prevented Ben, Nora or Pat from starting fresh actions challenging the validity of the Settlement Agreement or challenging Ian’s conducts in respect of the option. The judge recognised this to be the case at paragraphs 146 and 169.

….

35.  The judge thought that Ben, Nora and Pat could still pursue their case on nominee-ship of FYTF and Ian’s failure to procure the exercise of the Yau Wing option before its expiry. However, the judge apparently overlooked the fact that pursuant to Clause 19(h), they had to transfer their interests in the HFE Group to Ian and Tim. Once the transfer had been completed, Ben, Nora and Pat would cease to have any locus to pursue those claims.”

23. Mr Smith argued that this clearly indicates that the Court of Appeal did not think that the Settlement Agreement provided any bar to Ben initiating, as he attempts through the present application, a claim by Yau Wing against Ian in respect of the Option.  Mr Wong argued that the Court of Appeal make it clear in their judgment that they were not determining any issue of construction of the Settlement Agreement, which I accept.  Accordingly, he suggested, the Court of Appeal cannot be taken as indicating that the present application was permissible.  I asked Mr Wong how, that being the case, one explains the observations in paragraphs 32 and 35.  It does not seem to me that Mr Wong had an answer to the question other than for the correct observation that they do not form part of the ratio of the decision.  In my view the comments of the Court of Appeal, whilst not deciding the matter, do tend to indicate that the Court of Appeal thought that the commencement of new proceedings by Ben in respect of the Option was permissible and this is consistent with my own reading of the Settlement Agreement.  I, therefore, reject the argument that the Settlement is a reason to decline leave.

24. The third ground of opposition concerned the financial position of the Company and whether it was in a position to exercise the Option given the requirement that the shareholder’s loan had to be settled.  It may be arguable that Yau Wing would have had difficulty satisfying this requirement, but that is a complex factual matter and it does not go to the question of whether or not a serious issue to be tried has been demonstrated at this stage, it goes to Ian’s defence.

Joinder Application

25. The final matter I will deal with is the joinder of Ian.  It is possible for an interested party, for example a shareholder, to apply to be joined as a respondent to an application for leave to commence a derivative action.  Barma J (as he then was) granted such an application in Re Gen2 Partners Inc [9]and in paragraph 26 of his judgment he cites other decisions in which this had occurred. However, in my view such applications should only be granted if the applicant can demonstrate that his participation is likely to be necessary to ensure that all relevant matters are put before the Court.  This might be the case, for example, if due to deadlock in the board the company would not be able to respond substantively to the application.  An application should not simply be allowed in order that the prospective defendant has an opportunity to put his side of the story and try and persuade the Court that a serious issue to be tried has not been demonstrated.  If such applications are allowed the predictable result is what happened in the present case. The Court receives an additional 37-page written submission descending into more detail and controversy than the criteria by reference to which these are applications are assessed requires.  This risks making the application needlessly complicated and time consuming.  Fortunately in the present case the good sense and skill of Mr Chan, and perhaps some, I hope, judicious encouragement by the Court, kept the oral submissions made on behalf of Ian crisp and relatively short.

26. I will now hear the Parties on the precise terms of the Order and costs.