THE BANK OF EAST ASIA, LTD v. LABOUR BUILDING LTD AND OTHERS

HCMP 769/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 769 OF 2002

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J U D G M E N T

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1.  This is an application to stay execution of the judgment I handed down on 23 January 2008, when I found in favour of the plaintiff (the Bank) in its claim to recover from the 1^st defendant (LBL) all moneys due and owing under a debenture and a legal charge secured against LBL’s commercial property at 11 Changsha Street Kowloon, with accrued interest and costs.  The stay sought is until the outcome of an appeal against that decision, timed to be heard over three days beginning 5 November 2008.

2.  The money was borrowed for the purpose of funding the demolition of an ancient building on site and construction of a highrise building of 18 stories.  The advance paid in several tranches between 1997 and 1999 was for $50 million.  Following completion of the building LBL made several repayments and otherwise complied with the debenture’s terms.

3.  Then in 2001 there was default on two counts. 

4.  First, the majority shareholder, called APH Hong Kong Limited (APH HK) sold its shareholding of 73.2% to a company called Yan Hei Holdings Limited (Yan Hei).  There was no notice of this sale given to the Bank, and thus no approval of the sale.  Secondly, from the date of the sale LBL stopped paying back the borrowed funds; none have been paid since.  On the date of default $46 million was due and outstanding.  By the date of judgment accrued interest had swollen the debt to more than $86 million.  Costs have not been taxed and the amount of these is in dispute.  The Bank says $13 million is outstanding; LBL says no more than $9 million is due.  So, as at the date of judgment, the judgment debt stood at somewhere between $95 million and $99 million.

5.  Since judgment there has been no payment or reduction.

6.  Between the dates of judgment and appeal more than $6.5 million will have accrued at the judgment rate of interest, at some $24,000 per day.

7.  In 2001 LBL leased the entire building to the 2^nd defendant (CSL).  There were sub-leases, to those named above as the 3^rd to 16^th defendants.  They have gone, chased off by the litigation.  CSL and those sub-lessees were joined as parties because the order I was asked to make included delivery of possession to the Bank in default of payment of the judgment debt.

8.  CSL joins with LBL in applying for a stay pending appeal.  The action against the 3^rd to 16^th defendants was discontinued when they vacated the building well before the trial. 

9.  The defence put up was that the debenture was invalid as being irregular and of no effect and the money advanced under it was not recoverable.  It was alleged that directors of APH HK had siphoned off some of the advance intended wholly to fund the reconstruction, and that officers of the Bank dishonestly conspired with these offenders to allow that to happen.  This is notwithstanding that the building funded by the advance did get to be completed, that the advance more or less matched the cost of construction, and that the purchase price paid by Yan Hei to APH HK recognized an indebtedness due to the Bank of $46 million with a promise in the sale and purchase agreement (made by Yan Hei to the vendor APH HK) to honour that obligation.

10.  In the judgment I found as a fact that whilst LBL was the named debtor in the suit, the actual litigator and driving force has all along been Yan Hei, and Yan Hei all along funded LBL’s legal costs. 

11.  The application for a stay is made on terms.  With or without those terms it is vehemently opposed.  The Bank adopts that as its primary position.  In the event that a stay of some sort is granted, its reluctant alternative is that there be paid into court precisely $6,557,314.46, this being the amount of interest that will have accrued on the judgment debt up to the scheduled last day of the hearing of the appeal, thus to hold the level of debt to the judgment debt as at the date of judgment, and that I appoint two named receivers put up by the Bank, in a cross application it has made for the purpose.  The role of the receivers, it is submitted, is a proper course to preserve and manage the business being operated from the building, during the period of stay.

12.  What is that business?

13.  I come to that next.

LBL and CSL Become Hoteliers

14.  Following completion of the building, the plan partly implemented was that CSL would sub-lease the entire building.  But at the outset of the litigation the Bank obtained an injunction to stop that happening.

15.  Denied the opportunity to generate an income in this way, LBL and CSL effectively gave up the head-lease.  Instead, they joined forces by causing the building to be refurbished into two budget hotels, one for each party, and then to apply to vary the injunction to make that happen.

16.  By June 2004 the conversion had been completed, apparently funded by LBL.  That month the Bank made application for an enlargement of the injunction.  The matter came before Deputy Judge Saunders.  LBL and CSL jointly submitted the proposal that they be permitted to operate hotels on site in terms that would safeguard the position of the parties pending trial and otherwise resolution of the action.

17.  The Bank opposed the proposition.  LBL and CSL, it said, had arbitrarily undertaken the conversion and pursuit of licences without notice or leave, and by changing the layout had ridden roughshod over the Bank’s rights to realize on its security piecemeal.

18.  DJ Saunders said of this:

“34.   But I am bound to say that my first reaction to the practical circumstances of this case was that irrespective of the legal merits of either party, it seemed quite wrong that a substantial commercial building should be allowed to lie unoccupied, unproductive of income, and deteriorating.  Notwithstanding the matters raised by the Bank, it seems to me plainly in the best interests of both parties that the building should be occupied, producing income, and properly maintained.  While the court will be slow to assist a wrongdoer, and it may be argued that Labour Buildings, in acting arbitrarily in the manner they have, are wrongdoers, nevertheless I think that the court should also be slow to allow a building to lie empty, unproductive and deteriorating, especially when it cannot be said that any real harm is suffered by the plaintiff by allowing it to be used.  In this respect the balance of convenience weighs heavily in favour of Labour Buildings.”

19.  He noted that LBL’s evidence was that the conversion had cost it $6 million and that it had in train a management contract with a reputable international hotel chain.  He then went on to state:

“For the foregoing reasons, I am satisfied that the balance of convenience favours not extending or enlarging the interim injunction as sought, but that the injunction should be varied by the addition of the following terms, (these are the terms offered by Labour Buildings), as new paragraphs:

‘4. The 1^st and/or 2^nd defendants, (collectively ‘the Defendants’), will not be restrained or in any way prohibited from operating a hotel business at the Property, whether under the name of ‘Tatami-Hampton Hotel’ or any other name (‘the Business’), and doing all such acts and executing all such documents as are necessary and/or incidental thereto.

5.   Upon the Plaintiff giving the usual cross-undertaking, as to damages, the Defendants jointly and severely undertake to the Court that the Defendants, whether by themselves, or by their directors, officers, employees, servants or agents or any of them, will not allow any person(s) to stay in any room of the Property, whether as hotel guest(s) or lodger(s) or in whatever capacity, for any period of more than 28 days.

6.   The Business will be professionally operated and managed under the franchise to be granted by Ramada International, and the accounts in relation to the Business will be audited annually by Messrs. Deloittes Touche Tohmatsu or a comparable accounting firm.

7.   Prior to the commencement of the Business, the Defendants will cause to be opened a designated interest bearing account with a designated bank other than the Plaintiff (‘the Account’) in the name of Messrs. David W.T. Chan & Co.

8.   After commencement of the Business and until determination of the Action herein the Defendants:

(i)    will deposit or cause to be deposited into the Account, on the 15^th day of each calendar month (and if the 15^th day falls on a public holiday or Sunday, the next working day), 25% of the net profits generated from the Business during the previous calendar month, to be held by Messrs. David W.T.Chan & Co. as stakeholder;

(ii)   will cause to be set aside and retained the remaining 75% of such net profit as the working capital for the Business.”

20.  The stakeholder needs no introduction; the firm acted throughout the action up to judgment for both LBL and CSL, and now for CSL.  And, as I found, and recorded in my judgment, the proprietor David Chan was a key participant with control of Yan Hei.

21.  Following the order, business began and several years later the two hotels are still operating.  Reports are that the occupancy rate on both is high and so are advance bookings.

22.  But the Bank is quick to point out that certain conditions laid down in the order of DJ Saunders have never been complied with.  Further, that the evidence upon which he no doubt relied before varying the injunction was, to say the least, questionable, given the manner in which it was presented.

23.  The evidence that DJ Saunders had before him in support of the proposition that there was a serious question to be tried came from affidavits made by Lee Kwok Keung (K K Lee) the director of LBL who gave evidence at the trial.  But as emerged in the trial, K K Lee signed whatever had been prepared by LBL’s solicitor David Chan, without reading the contents.  That included not only witness statements made for the purpose of the trial but also the testimony before DJ Saunders.  The judge accepted that evidence at face value; at paragraph 23 he wrote:

“23.   I am satisfied that there are serious questions to be tried as to the validity of the debenture.  A significant number of matters in relation to the circumstances in which both the 1997 and the 1999 debentures were executed are both pleaded in the defence, and set forth in the affidavits for the defendants, upon which it is plain that an argument can be mounted, and is to be mounted, that the security documents upon which the Bank relies are not binding.  It is sufficient to say that these are dealt with, as to the 1997 debenture, in paragraphs 8-26 of the Defence and Counterclaim, and as to the 1999 debenture, in paragraphs 31–36 of the Defence and Counterclaim.  The allegations and averments in those paragraphs are sufficiently supported by the evidence on affidavit from a director of Labour Buildings to raise a serious question to be tried.” 

(The emphasis is mine; that affidavit so-called is K K Lee’s affirmation, signed and affirmed blind.)

24.  Further, there were unauthorized departures from the order.

25.  Ramada International did not contract to run the hotels.  Instead, a company was incorporated called Right Gain Management Limited (Right Gain) for the express purpose of undertaking the management.  It professed no skills in the field.  Nor is it neutral.  Its major shareholders are Yan Hei and Chan Hon Tsang (a major shareholder of Yan Hei).

26.  No audits were ever undertaken by Deloittes or a comparable firm, or at all.

27.  In purported compliance with the order that 25% of net profits were to be paid into the stakeholder’s account each month, payments were made for the months July 2004 to April 2006, in all totalling $255,598.26; thus, on average, only $11,618.10 per month.  Then there was nothing.

28.  The apparently modest accumulation of funds which dried up to nothing after April 2006 was blamed on the cost of litigation, funded out of the profits generated. 

29.  This explanation emerged in affirmations made by one Lin Pai Ching, described as a senior manager of CSL, and Leung Muk Lan, described as a director of LBL and “project co-ordinator” of Yan Hei, in support of the application for a stay.

30.  DJ Saunders was not told that costs of this litigation were going to be an overhead when approving the proposal that gave rise to his order. 

31.  More seriously, this explanation was and remains at odds with the evidence put before me at trial from which I concluded that Yan Hei funded the litigation.  K K Lee said as much.  Details of this part of his evidence are at paragraphs 143 to 148 of my judgment.

32.  K K Lee was taken by Mr Whitehead to the minutes of an EGM of LBL conducted on 18 April 2002 at the offices of David W T Chan & Co., wherein it is recorded and unanimously approved that Yan Hei would be responsible for the cost of litigation.  K K Lee confirmed that that was correct and remained the position; that LBL’s costs were funded not by the company but by its shareholder Yan Hei.  Madam Leung Muk Lan was not only present representing Yan Hei, she chaired the meeting.

33.  With two competing versions on a very important issue put before me under oath, an explanation was warranted; none was given.

34.  I come now to deal with the application for a stay on terms, followed by the Bank’s alternative application.

The Application for a Stay

35.  This is applied for on terms that the hotels continue to operate for the benefit of all and in particular the party successful in the appeal, but with safeguards that would include the Bank being entitled to participate and oversee the enterprise.

36.  The proposal put before the Bank’s solicitors in a letter from LBL’s solicitors of 7 April 2008 and repeated before me, reads as follows:

“1. A joint bank account be opened with an independent banker for depositing all the income of Tatami-Hampton Hotel (‘the Hotel’) under the joint signatories of the Plaintiff and the 1^st and 2^nd Defendant, such amount to be verified in table form with supporting documentation by an accountant of Right Gain Management Limited;

2.  The existing monthly cost of running the Hotel as identified by an accountant of Right Gain Management Limited in table form with supporting documentation, is to be paid promptly out of this joint account;

3.  After the running costs of the Hotel are paid out, the balance held in the joint account on the last day of each month will be paid into court pending the determination of the appeal; such amount is estimated to be about HKD300,000 per month; and

4.  There will be liberty to apply to Court to vary the above for the payment of legal costs to be incurred by the 1^st and 2^nd Defendant for the purpose of prosecuting the present appeal.

We are instructed by our client that they would agree to copies of all checking in cards for each occupant of the Hotel being given to you on a weekly basis.”

37.  The Bank’s position is that this would be quite unworkable.  It points to the manner in which LBL under new ownership ran its defence, alleging fraud and conspiracy on the part of the Bank’s officers; serious criminal allegations which were wholly unjustified. 

38.  It draws attention to the irregular way in which the evidence in support of running of the two hotels was put before DJ Saunders.

39.  It highlights the examples of default by LBL and CSL in failing to comply with their own proposals which DJ Saunders accepted and provided for in his order. 

40.  In short, the Bank and its officers want no truck with a management shared with either defendant.

41.  Above all, the Bank points to the chaos that would result every time an application were to be made for a variation to meet ongoing legal costs of both LBL and CSL, effectively funded by moneys paid towards the accruing interest on the judgment debt.

42.  In the event, as criticism of the proposal emerged during the course of the hearing before me, it came to be amended by removal of the liberty to apply to vary for payment of legal costs.

43.  The Bank, however, remained unimpressed, and unbending in opposing it.

44.  In support of the application on such terms, Mr Wong for LBL submitted that the Bank’s position would not be jeopardized by the stay, by virtue of two current valuations ordered by the Bank and LBL for the purpose of the stay application.  LBL’s valuers put the current worth of the property at $132 million.  The Bank’s valuers said its value is $105 million.  A marked difference certainly, but even the lower figure is significantly higher than the debt due.

45.  He further submitted that for all the criticisms and objections the Bank has directed at LBL for making the conversion into hotels, undoubtedly that has not only generated an income, it has enhanced the capital worth to a figure which should provide comfort to the Bank, and be an important consideration for the court in the outcome of this application.

The Bank’s Application for Receivers

46.  Mr Whitehead leading counsel for the Bank was all along adamant that this is a reluctant alternative to the Bank’s primary position that no stay is warranted at all, and wanted me to consider it only if I am inclined to grant a stay.

47.  The application is to appoint two named members of Ernst & Young Transactions Limited as receivers to manage the business of the hotels with authorization to carry out specific duties whilst complying with the statutory requirements imposed upon court-appointed receivers.

48.  The proposed appointments are supported by affidavits going to the fitness of the two appointees.  In addition, the Bank invites the further condition that LBL pay into court the sum of $6,557,314.56, being the precise amount of additional interest the judgment debt will have incurred up to the scheduled last day of the hearing of the appeal.

49.  By this means then, the judgment debt will in effect be “frozen” during the period of stay, and the hotels will be managed and operated by court-appointed receivers with statutory powers and obligations accountable to the court and independent of the parties to the litigation.

50.  LBL and CSL oppose the application for the appointment of receivers because it is not necessary, and will add unnecessary expense to the management.  There is no risk of dissipation of assets.  Their proposal of keeping the hotels operating as a going concern will not only continue to generate income to reduce the accruing interest, it will safeguard the enhanced capital worth of the property.

51.  I come now to consider the various applications and propositions.  But first, the law on stay applications.

The Law on Stay Applications Pending Appeal

52.  In what is otherwise hotly contested litigation, the parties are at least on common ground as to the legal principles, so that these can be shortly stated.

53.  The starting point is at O.59 r.13(1) RHC, which states that an appeal shall not operate as a stay of execution or of proceedings under the decision of the court below, except as the court below or the Court of Appeal shall direct.  Thus the party appealing is obliged to make express application for a stay, the burden being on him to persuade either the court below or the Court of Appeal that there are good reasons for their being a stay.

54.  As was said by Bowen LJ in The Annot Lyle (1886) 11, 114, at p.116:

“There is no reason, in my opinion, why … we should make a practice of depriving a successful litigant of the fruits of his litigation, and locking up funds, to which prima facie he is entitled, for a long time because they are secured by bail bond.  We cannot assume that it is a matter of small importance to a successful party to go without his damages for a long time.”

55.  These words are as apposite now as they were in the 19^th century.

56.  What are good grounds?

57.  Very much more recently, these were discussed by Ma J (as he then was) in Star Play Development Ltd v Bers Fashion Management Co. Ltd (unreported), HCA 4726/2001, 7 June 2002, and again shortly afterwards in Wenden Engineering Service Co. Ltd v Lee Shing Yue Construction (unreported), HCCT 90/1990, 17 July 2002.

58.  What emerges from his comprehensive examination of relevant authorities is that the court should first take a preliminary view of the likely prospects of the pending appeal.  If there is a strong likelihood that the appeal will succeed because, for instance, “something has grievously gone wrong with the process of the law in the court below”, that will usually by itself be enough to justify a stay of execution.  On the other hand, if the appellant has failed to establish there are at least arguable grounds, with reasonable prospects of success, no stay should be granted, whatever otherwise are the circumstances.

59.  In most cases however, the preliminary view on the chances of success of the appeal will be that it falls between the two extremes; that there is to be found an arguable appeal.  Then it is that the appellant has to provide additional reasons as to why a stay is justified.  A common one is to demonstrate that unless execution is stayed, an appeal that succeeds will be rendered nugatory.  However, if it cannot be shown that an appeal will be rendered nugatory if a stay were not to be granted, then other factors will have to be found to tilt the balance towards a stay; otherwise a successful litigant should be entitled to benefit from his win.

60.  As he concluded in Star Play, at para. 10:

“Ultimately, the court embarks on a balancing exercise and uses its common sense, but bearing in mind at all times the starting point that the successful party is not to be deprived of the fruits of his success: see Winchester Cigarette Machinery v Payne (No.2) unreported 15 December 1993” 

(This is an English Court of Appeal case, per Ralph Gibson LJ).

61.  In my view this case falls between the two extremes, requiring the defence to demonstrate there are reasons to warrant a stay.

62.  I come to deal with the competing positions of the parties next.

The Defence Position

63.  The focus of both LBL and CSL now separately represented but acting in concert in this application, is that inevitably a successful appeal will be rendered nugatory unless a stay is granted.  That is because the Bank will be permitted to take possession and, in exercise of its powers under the debenture, ultimately force a sale to recover the judgment debt.  If, on the other hand, my judgment is overturned and the debenture is found to be void and of no effect, whilst LBL could expect full reimbursement in money terms from a thriving bank, it will have lost the property, perhaps forever.  I return again to the affirmation of Leung Muk Lan, the director of LBL and “project co-ordinator” of Yan Hei.  In two paragraphs she explains how and why Yan Hei’s owners came to be involved in the property; I repeat these verbatim:

“Yan Hei

38.    Yan Hei is a bona fide investment company formed by different investors from Hong Kong and mainland China for the purpose of making the Property a success by capitalizing on the legacy of the Kuomintang Hong Kong headquarters and trade unionism which have been associated with the site, and the great potential of using it as the hub for the fostering of good relations between Mainland China and Taiwan.  For this reason, the investors are extremely reluctant for their identities to be divulged unless it is absolutely necessary and fully justified by law, because the divulgence of the names of the investors may destroy the whole primary object of the exercise.

39.    To illustrate that, it was the original idea that the Property be turned into a commercial center for investments into China.  There were many enthusiasts who were keen to promote the unification of Taiwan and at least to avoid war across the straits, and they had contributed, either directly or indirectly, towards facilitating the purchase of the APH shares.  These enthusiasts formed a company known as Taiwan Club Limited to back up Yan Hei.”

64.  She deposed that since the 1940’s the company LBL, the site at Changsha Street and now the new building have been symbols of unity for the trade unions and their members, who by their participation have been part of LBL’s history.  Of Yan Hei’s involvement, she said:

“…, although Yan Hei is not itself a trade union, nevertheless Yan Hei is composed of a group of investors who are sympathetic to the cause and would like to see it continue and prosper, and who have hitherto desired to remain anonymous (unless of course when duly required to do otherwise by due process of law), because the exposure of their names might be counter-productive and may even be subject to abuse.  Accordingly, Yan Hei also has a real concern in preserving the unique values of LBL.

20.  By reason of the aforesaid, I verily believe that the loss of LBL’s only significant asset shall deprive LBL of its substratum.  This will be a loss which is neither measurable nor compensatable in monetary terms.  The unique historical and emotional value attached to the site and the building thereon will be irretrievably lost.”

65.  Focusing on this loss that may not be able to be retrieved, Mr Wong took me to an extract from Spry’s The Principles of Equitable Remedies, 5^th edition, to demonstrate that a refund of money will not be an adequate recovery where the right to land has been lost.  Under the heading “The Inappropriateness of Damages” at p.61:

“But land is property that has a fixed location and a special value, and ordinarily at least damages are not to be regarded as an adequate substitute for the right either to acquire or dispose of an interest it.  Even indeed if the purchaser intends to purchase the land in question merely in order to be able to sell it later at a profit, damages will not be regarded as an adequate remedy for him.”

66.  He reiterated the defence’s position that what must also be taken into account is the other side of the coin, that a stay will not prejudice the Bank’s recovery of the full debt due to the enhanced worth of the property, at least in part because of its conversion into two hotels.

Discussion

67.  Have LBL and CSL done enough to show that a stay is necessary to avoid the appeal being nugatory in the event that it is successful?

68.  Mr Whitehead submitted that the passage from Spry does not assist the defence’s cause.  The chapter as the title to it reveals deals with the inadequacy of damages to compensate for a purchaser being kept out of his purchase of a specific property.  This case is not about a purchase of a property gone wrong, and the appropriate remedy; it is the Bank seeking to exercise its contractual right to recover a debt. 

69.  I accept that to be so.  However, there is an analogy to be drawn where a forced sale is found to be the only means by which a judgment debt can be satisfied.  But the burden is on LBL and CSL to establish that there is no other course open to them.

70.  In the event the determination of this dispute rests on what has not been disclosed, rather than the argument (and, in the evidence of Leung Muk Lan, the rhetoric) that has been put before me. 

71.  A cornerstone of the defence case is that a forced sale of the property is the only way the Bank will recover the debt.  But, having pushed the current worth of the property to demonstrate that a deferral will be risk-free to the Bank, in my view the defendants have overlooked several factors.

72.  The first is that a forced sale almost invariably results in a sale below market worth.  Valuations are based on a willing buyer willing seller proposition.  That is never the case in a sale by a mortgagee exercising its power of sale consequent upon default.

73.  Secondly, I do not need independent expert evidence to tell me that market conditions may change drastically between now and the end of the year or beyond, or whenever a stay imposed today will have run its course. Historically, Hong Kong’s market has always been volatile, and globally the forecast is to say the least decidedly unpredictable.  Thus the risk of the property dropping in value is a real one.  And all the while the debt will be getting higher.

74.  Thirdly, there is nothing to suggest that either defendant, and particularly LBL, has explored the prospect of raising the money on the security of the property from another financier.  Whilst plugging the proposition that there is ample security in the worth of the property to relinquish any anxiety of a shortfall in the Bank’s recovery, why is that not being used to attract support from another bank or lending institution?

75.  Mr Chan, speaking in his capacity as representing CSL in support of a stay, told me from the Bar table almost as a throwaway line that he had received an unsolicited call from an officer of the HSBC enquiring about the amount owing under the judgment, which he took to be a preliminary indication that HSBC might be willing to refinance the debt.  David Chan of course wears various hats and one is that he controls Yan Hei.  Yet he could not say why that or other avenues were not followed up, beyond that he would “take instructions”.  From whom he did not say.

76.  Finally, the defence’s application is not assisted by the decision of the backers of Yan Hei to remain anonymous.  That is a matter for them.  But that anonymity and absence of information going to their ability and willingness or otherwise to finance or contribute to a rescue package is a major flaw in the defence case that entry into possession by the Bank and a forced sale is the only way in which the judgment debt can be satisfied.

77.  Coincidently, Ma J was faced with a similar situation in Wenden Engineering.  He stated at paragraph 21(3):

“(3)   Furthermore, for a company as large, lucrative and promising as the defendant alleges itself to be, no explanation has been forthcoming as to why the shareholders are unwilling to support it.  No evidence of inability to borrow has been adduced either.  These are in my view significant omissions. In the course of argument, I also asked [counsel for the defendant] Ms Cheng rhetorically: if the defendant’s shareholders or bankers were not willing to support the defendant in these circumstances, why should the court?”

78.  In that case Ma J had at least some evidence from the shareholders in which they indicated they were unable to inject further funds.

79.  I do not even have that.

Conclusion

80.  The burden is on the defence to satisfy me that failure to stay will render a successful appeal nugatory, or otherwise there are good grounds to warrant a stay.

81.  I cannot be satisfied in the absence of evidence to this effect that LBL and/or its shareholder Yan Hei or those nameless investors in Yan Hei cannot raise sufficient to fund payment of the judgment debt forthwith.  So, that burden has not been met.

The Result

82.  The application for a stay of execution is dismissed.  

83.  I make no order on the application for appointment of receivers.

84.  Costs are nisi.  These are to the plaintiff taxed if not agreed, with certificate for three counsel.