WELL CENTURY HOLDINGS LTD. v. LEUNG KAM YU

CACV 370/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 370 OF 2002

(On appeal from HCA No. 1368 of 2001)

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JUDGMENT

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Hon Yuen JA:-

1. This is an appeal from a decision of Deputy Judge Woolley dismissing the Defendant's appeal from the judgment given by Master J. Wong on the Plaintiff's application under Order 14 of the Rules of the High Court that the Defendant pay to the Plaintiff the sum of $400 980 with interest thereon at the rate of 2.5% per month from the date of writ to the date of judgment and thereafter at judgment rate until full payment, for damages to be assessed and for costs on a solicitor and own client basis.

Tenancy

2. The Plaintiff was the landlord and the Defendant was the tenant of premises on the Ground Floor of a building known as Polly Commercial Building ("the Premises"). The Defendant had entered into a written Tenancy Agreement with the Plaintiff's predecessor-in-title on 6 September 1999 for a term of 3 years, commencing on 1 August 1999 at a rent of $153 620 per calendar month exclusive of rates, air-conditioning and management charges. A deposit of a sum of $505 176 was paid by the Defendant. The Premises were used as a restaurant.

Basement Tenant's proposed works

3. In December 2000, the Plaintiff let the Basement of the building to a company by the name of Express Asia Development Ltd ("the Basement Tenant") who wished to undertake certain works on ventilation air ducts connecting the Basement to the external wall of the building.

4. Entry into the Defendant's Premises was required for these works to be undertaken. The Defendant was initially reluctant to cooperate, but the Plaintiff asserted to the Defendant that he was obliged under the Tenancy Agreement to permit entry under cl. 2.22 of the Tenancy Agreement where the Defendant agreed:

Agreement dated 12 December 2000

5. Eventually an agreement was made among the Plaintiff, the Defendant and the Basement Tenant which was evidenced in a document dated 12 December 2000, which stated as follows:-

6. This document was signed by the Defendant and counter-signed by the Basement Tenant. The Plaintiff did not sign the document but it did not dispute that the document also evidenced an agreement that it had made, as it accepted that $25 000 should be deducted from the rent.

Undertaking of works

7. The document envisaged the undertaking of the works in 3 stages (stage 1 to be undertaken from 16-18 December 2000, stage 2 on 19 December and stage 3 on 21 December). Stage 1 of the works was duly undertaken from 16 December to 18 December 2000. According to the Defendant, no cleaning up was done afterwards, and the works caused the false ceiling of the men's toilet of the Premises to collapse. He had to pay his workers an extra $3 300 for them to travel in and clean up, and he had to delay the start of business on 18 December 2000 by 11/2 hours at a loss of profit of $2 000.

8. On 18 December 2000, he wrote a letter to the Plaintiff (counter-signed by two caretakers) complaining about the failure to clean up, resulting in miscellaneous items and soil and dust in the Premises. There was however no mention of the damage to the ceiling of the toilet in that letter.

Refusal of entry

9. The 2nd stage of the works was due to be undertaken on 19 December 2000, but the Defendant refused entry to the Basement Tenant's workers.

10. On 20 December 2000, the Defendant wrote to the Plaintiff complaining about the delay to the start of business on 18 December and the collapse of the ceiling of the men's toilet and the lack of lighting therein. He complained that as a result, there was a loss of 20% of customer turnover. He requested the Plaintiff to consider an assignment of the tenancy to a limited company, a reduction in rent of 20%, and cancellation of certain air-conditioning charges.

11. On 21 December 2000 (when the 3rd and last stage of the Basement Tenant's works were due to be done), the Defendant again refused entry to the Basement Tenant's workers.

Emission of smoke and gas

12. On 22 December 2000, the Basement Tenant commenced business operations as a Japanese restaurant. By reason of the fact that the works had not been completed, smoke and gas emitting from the Basement entered the Premises through gaps in the uncompleted works. (Although the evidence referred to "gas" being emitted, it would appear that the Premises could still be opened for business).

13. The emission of smoke and gas started a flurry of correspondence between the solicitors for the Defendant and the solicitors for the Basement Tenant. In summary, the Basement Tenant wanted to complete the works (which would take only 1 day), but the Defendant was not prepared to allow entry into his Premises unless the terms he proposed were accepted.

14. On 8 January 2001, his solicitors wrote to the solicitors for the Basement Tenant enclosing a quotation from contractors, showing that it would cost $26 900 to complete the uncompleted works in the Premises, and to repair the ceiling and lighting.

Failure to pay rates, management charges, air-conditioning charges & rent

15. Meanwhile, on 1 January 2001, the Defendant failed to pay any rates and management charges. On 1 February 2001, he failed to pay any rent as well.

Letters on 15.2.2001 and 19.2.2001

16. On 15 February 2001, the Defendant wrote to the Plaintiff through its solicitors to the effect that since the start of business, he had been suffering a loss and that he could no longer pay the rent. He asked the Plaintiff to permit an assignment of the tenancy.

17. This was followed on 19 February 2001 by another letter from the Defendant to the Plaintiff through its solicitors. In this letter, (i) the Defendant proposed an assignment of the tenancy, and if that was not successful, he asked the Plaintiff to permit him to rescind the tenancy on 31 March; (ii) the Defendant proposed to rescind the tenancy first, and to rent the Premises temporarily at a lower rent, until such time as the Plaintiff could find a new tenant, with both parties being at liberty to give one month's notice to leave.

18. These proposals were not accepted by the Plaintiff, who caused its solicitors to issue a letter before action on 28 February 2001 demanding payment of the rent and other charges in arrears, which by that time had reached $240 150. No payments were made at all.

19. On 1 March 2001, more rent and other charges became payable, but again no payments were made by the Defendant at all.

Writ and Defendant's letter terminating tenancy agreement

20. On 26 March 2001, the Plaintiff issued the writ in this action. The Statement of Claim pleaded that the Plaintiff was entitled to re-enter the Premises pursuant to cl. 4.01 of the Tenancy Agreement which provided that if the rent shall be unpaid for 15 days after becoming due, or if the Defendant failed to observe or perform any term or condition in the Tenancy Agreement, the Plaintiff would be entitled to re-enter upon the Premises whereupon the tenancy would be absolutely determined, but without prejudice to the right of the Plaintiff in respect of any breach by the Defendant of any terms, conditions or stipulations contained in the agreement. I shall refer to this as "the forfeiture remedy".

21. It was also pleaded that the Defendant's failure or refusal to pay the rent and other charges (which by then had amounted to $425 980) was in breach of the Tenancy Agreement. The Plaintiff claimed that by reason of the breach, it had suffered loss and damage, which in addition to the rent and other charges in arrears, comprised mesne profits and other charges until vacant possession, mesne profits and other charges from date of vacant possession until the Premises are re-let, and the difference (if any) between the rent and other charges under the Tenancy Agreement and those under the re-letting. I shall refer to this as "the common law remedy".

22. On the same day 26 March 2001, the Defendant's solicitors wrote to the Plaintiff's solicitors alleging breach by the Basement Tenant (as agent of the Plaintiff) of the agreement dated 12 December 2000, and claiming $239 210 as damages suffered by the Defendant (comprising $200 000 as daily loss of profit at $2 500 from 18 December 2000 to 23 March 2001, and $39 210 for extra payment to workers and 11/2 hours loss of profit on 18 December 2000, expenses for mice-bait and loss adjuster's fees, including $28 700 for "physical damage as estimated").

23. The letter stated that as a result of the breach of the agreement dated 12 December 2000 "entered upon the basis of the Tenancy Agreement ", the Defendant accepted the Plaintiff's repudiatory breach and "shall accordingly rescind from the said tenancy agreement after the expiration of this month".

Keys returned

24. On 30 March 2001, the Defendant returned the keys to the Premises to the Plaintiff.

Re-letting

25. On 14 May 2002 (i.e. more than a year after the Premises were vacated by the Defendant), the Plaintiff entered into a tenancy agreement of the Premises letting it at a rent of only $102 440 per month.

Proceedings

26. In his Defence and Counterclaim, the Defendant has pleaded that the Plaintiff had breached the covenant of quiet enjoyment by reason of its neglect of the Defendant's complaint of the damages caused by the Basement Tenant as the Plaintiff's agent, and he has alleged that by reason of the Plaintiff's breach, he was entitled to rescind the Tenancy Agreement.

27. He counterclaimed for the return of his deposit less $400 980 (being the rent and other charges from 1 January 2001 to 30 March 2001, less $25 000 referred to in the agreement dated 12 December 2000), and for damages of $210 500 being loss of profit of $200 000 and $10 500 being extra payment to workers and 1 1/2 hours loss of profit on 18 December 2000, expenses for mice-bait and loss adjuster's fees. There was no reference to any "physical damage as estimated" as in the letter of 26 March 2001.

28. At the hearing before the judge, counsel for the Defendant raised the further argument that the Plaintiff was not entitled to the common law remedy because it had elected to forfeit the tenancy.

Judgment

29. The judge held that in law the Plaintiff was entitled to the forfeiture remedy and the common law remedy at the same time, and in respect of the latter remedy, that the Defendant's failure to pay rent and other charges, coupled with his letters dated 15 February 2001 and 19 February 2001,evinced an intention no longer to be bound by the Tenancy Agreement.

30. He also held that although the Basement Tenant's acts could amount to breach by the Plaintiff of the covenant for quiet enjoyment, (i) the Defendant had agreed to the works in return for an indemnity from the Basement Tenant and an agreed sum from the Plaintiff by way of liquidated damages; (ii) any further damage not envisaged was caused by his refusal to allow the completion of the uncompleted works, which would have removed or alleviated the problems he complained of; and (iii) the Defendant had "restored the status quo" by 12 February 2001 and affirmed the tenancy by not making any reference to the loss occasioned by the works in his letters to the Plaintiff on 15 February 2001 and 19 February 2001. Accordingly the judge affirmed the master's judgment.

Appeal

31. The Defendant lodged a Notice of Appeal. At the hearing of the appeal, the Defendant did not have the benefit of legal representation. He first sought to raise some new allegations that could have, but had not, been made the subject of evidence below, such as an allegation that the works caused him to be in breach of his restaurant licence. However the constraints of Ladd v Marshall [1954] 1 WLR 1489 precluded him from raising those new allegations at this appellate stage.

(1) Forfeiture and common law remedy

32. Turning to the grounds in his Notice of Appeal, which were obviously drafted with the benefit of legal advice, the first ground was that since the tenancy had been forfeited, the Plaintiff could not claim damages. The Defendant was unable to make any submissions to the court on the law, but Miss Lisa Wong counsel for the Plaintiff assisted by providing the court with the written submissions of Mr Chong Kai Man, who had appeared for the Defendant before the judge.

33. As we understand the written submissions, the argument raised on behalf of the Defendant was that a landlord may confer upon himself, by the express terms of the tenancy agreement, a right to forfeit the tenancy upon any trivial breach (even if the breach would not amount under the common law, to a repudiatory breach). Therefore, so the argument ran, "should the landlord forfeit the tenancy, he would be precluded from seeking consequential damages following from forfeiture". The cases of Hop Woo Cheung Enterprises Ltd v Intergroup Industries Ltd [1982] HKC 436 and Colgan Co Ltd v Ethitrade Ltd [1983-5] CPR 87 were relied upon.

34. Before considering these cases, it might be helpful to recall the state of the English law on the question whether the contractual concept of acceptance of repudiation applied to leases. In Cricklewood Property and Investment Trust Ltd v Leighton's Investment Trust Ltd [1945] AC 221, there was some support in the House of Lords for the contention that the contractual concept of frustration did not apply to leases because of the proprietary nature of a lease. In Total Oil Great Britain Ltd v Thompson Garages (Biggin Hill) Ltd [1972] 1 QB 318, the Court of Appeal, on the basis of Cricklewood, held that the contractual concept of repudiatory breach would also not apply to leases.

35. The Cricklewood argument was however subsequently rejected by the House of Lords in National Carriers Ltd v Panalpina (Northern) Ltd [1981] AC 675, which held that the contractual concept of frustration did apply to leases.

36. As for the contractual concept of acceptance of repudiation, the Canadian Supreme Court in Highway Properties v Kelly, Douglas & Co. Ltd 17 D.L.R. (3d.) in 1971 and the High Court of Australia in The Progressive Mailing House Proprietary Ltd v Tabali Proprietary Ltd [1984- 5] 157 CLR 17 held that it did apply to leases. Whilst a landlord could re-enter if the lease expressly allowed it when a tenant committed a breach (however serious or trivial), in a case where a breach was so serious as to be repudiatory under general contractual principles, the landlord could also invoke common law remedies.

37. In Hop Woo Cheung Barnes J decided not to follow Total Oil and followed Highway Properties. He held that the contractual concept of acceptance of repudiation did apply to leases ( p441). However on the facts of that case, he held that where rent had been punctually paid for 2 years, the fact that 2 instalments of rent were missed (without more) did not amount to repudiation. There was no evidence before him save for the pleadings and an agreed bundle of documents, where the only wrongful conduct alleged was the 2 missing instalments. He therefore held that whilst the landlord was entitled to forfeit the tenancy under the express terms of the tenancy agreement, it had failed to show a repudiatory breach such as to entitle it to common law damages.

38. It would thus be seen that Hop Woo Cheung did not support the Total Oil line, as Mr Chong's written submissions (set out in paragraph 33 above) seemed to suggest. On the contrary, Barnes J had accepted that the remedies of (i) forfeiture under the lease and (ii) common law damages under ordinary contractual concepts were not inherently inconsistent.

39. In Colgan Judge Cruden in the Lands Tribunal declined to allow an amendment to claim common law damages because the landlord had pleaded that he had forfeited the tenancy under the terms of the tenancy agreement only and had not pleaded any repudiatory breach. So understood, Colgan does not support an argument that the common law remedy could not, as a matter of principle, co-exist with the forfeiture remedy.

40. Further, in Sichant Investments Ltd v Wong Kam Kei HCA 3430/94, unrep., Waung J. followed the Canadian and Australian line and held in an Order 14A application that as a matter of law, the landlord was entitled to "unexpired term" damages after having forfeited the lease.

41. In the present case, Deputy Judge Woolley similarly held that forfeiture and common law damages were not mutually inconsistent remedies.

42. In the course of argument, I raised with counsel for the Plaintiff the question whether this view would be affected by relief against forfeiture under s.21F High Court Ordinance cap. 4 , a matter that had not been considered in Sichant.

43. Section 21F HCO provides that where a lessor is proceeding by action to enforce against a lessee a right of re-entry or forfeiture in respect of any land for the non-payment of rent, then (subject to the conditions in that section which it is not necessary to set out here), if the lessee pays into court the rent in arrear and costs, the lessee "shall hold the land according to the lease without any new lease".

44. So, in a case where the landlord forfeits the lease but also terminates the contract and claims damages for repudiatory breach, what is the effect on the contract of the mandatory grant of relief against forfeiture? Does the contract exist in a "trance-like" state until the relief against forfeiture is granted, because its termination is subject to statutory intervention? Or is the contract terminated but later "resurrected" when relief against forfeiture is granted? Or is it the case (as suggested in Hill and Redman's Law of Landlord and Tenant vol. 1, § 9423.1) that since a landlord cannot prevent the tenant applying for relief against forfeiture, he cannot use his common-law rights to repudiate the contract?

45. I think the answer (at least in the present case) lies in the fact that s.21F HCO does not "automatically" apply whenever a lease is forfeited for non-payment of rent. It only applies where the lessee remains in possession and has made payment into court within the periods of time stipulated in the various subsections (and, by reason of the recent amendment, it only applies to one forfeiture for non-payment of rent in the term). Therefore, the mere existence of s.21F HCO does not operate to exclude the co-existence of a forfeiture remedy and a common law remedy in all cases. In the present case, it does not exclude the co-existence of these remedies because the Defendant had indicated on the same day as the forfeiture that he intended to terminate the agreement anyway (albeit on his alleged grounds). He then vacated the Premises and did not make any payment into court. Therefore s.21F HCO clearly did not apply. The question whether these remedies could co-exist in a case where s.21F HCO does apply must be left open for argument in another case.

46. I would only add for completeness that in Super Century Investments Ltd v Advance Ltd HCA 73/02, unrep., the landlord had not sought to forfeit the lease under the terms of the Tenancy Agreement and the only case pleaded was one of repudiatory breach. Although it was assumed that s.21F HCO could apply, the term was in any event about to expire so there was no substantial argument on the point.

47. By reason of the matters set out above, it is clear that the judge was right when he held that the Plaintiff in the present case could pursue both the forfeiture remedy and the common law remedy. Here, the non-payment of rent had reached a substantial amount, there was no offer on the part of the Defendant to make even part payment of outgoings such as rates and air-conditioning charges, let alone rent, and of course there were the two letters on 15 February 2001 and 19 February 2001 which showed that the Defendant could no longer continue with the tenancy agreement and wished to withdraw from

it. Although the Defendant has now said that when he wrote those letters, he was merely trying to negotiate for a lower rent and he did not really wish to terminate the tenancy, the letters have to be read objectively. Read objectively, there can be no doubt but that they evinced his intention no longer to be bound by the existing Tenancy Agreement.

(2) Sufficient pleading of both remedies

48. The second ground of appeal was that the judge erred in finding repudiation and acceptance of repudiation when it had not been pleaded in the Statement of Claim.

49. The judge had held that the Statement of Claim contained, in addition to the pleading of forfeiture, a sufficient pleading of the common law remedy as there was a pleading of breach of the agreement by non-payment of rent, coupled with a claim for loss and damage for the unexpired term arising from the breach.

50. Whilst it would have been clear beyond argument if terms familiar to contractual claims such as "repudiation" and "evincing an intention no longer to be bound by the tenancy agreement" had been pleaded, the judge was right in holding that the pleader had sufficiently distinguished the forfeiture plea at paragraph 16 of the Statement of Claim from the breach of contract and loss and damages plea at paragraph 17.

(3) Reliance on the letters of 15 February and 19 February 2001

51. The third ground of appeal was that when the judge held that the Defendant's letters dated 15 February 2001 and 19 February 2001 evinced his intention no longer to be bound by the terms of the Tenancy Agreement, the judge had failed to take into account the fact that the Defendant had incurred expenses in remedying the damage caused by the Basement Tenant, which showed that the Defendant intended to continue with the tenancy.

52. In fact the only evidence of expenses actually incurred was that the Defendant had paid $3 300 in extra payment to his workers on 18 December 2000, $1 200 in expenses for mice-bait, and $4 000 in loss adjuster's fees.

53. Although there was a quotation from contractors for completing the uncompleted works and remedying the damage, there was no evidence that this work was ever done. No invoice or receipt was exhibited. The judge had only "presumed" that the work had been done to restore the status quo.

54. Further, the Defendant's solicitors in their letter dated 26 March 2001 did not refer to the work having been done, referring only to "physical damage as estimated". It is also noteworthy that in the Counterclaim, there was no claim for expenses incurred for remedying the damage.

55. Therefore, the expenses actually incurred by the Defendant were relatively minimal and did not detract from the clear intention evinced by him in the letters of 15 February 2001 and 19 February 2001 that he wished to terminate the tenancy agreement.

(4) Entitlement to rescission for breach of covenant for quiet enjoyment

56. The fourth ground of appeal was that the judge should have held that the Plaintiff's breach of the covenant of quiet enjoyment entitled the Defendant to rescind the Tenancy Agreement.

57. In this connection, the judge found first, that the Defendant had agreed to the disturbance and that the $25 000 agreed to be deducted by the Plaintiff from the Defendant's rent was liquidated damages.

58. With respect to the judge, it is not that clear that the Defendant had agreed to exempt the Plaintiff from compensating him for the type of disturbance that occurred after stage 1 of the works (i.e. the failure to clean up and the collapse of the false ceiling in the men's toilet). The language of the agreement dated 12 December 2000 showed that the Defendant had only agreed to allow the Basement Tenant's workmen to enter the Premises to undertake the works, and only on the conditions stated.

59. Further it is at least arguable that the $25 000 was not liquidated damages for damage of all types. That amount was deducted for "inconvenience" caused to the Defendant (which would have been caused in any event by strangers entering one's business premises after normal hours) and would have been deducted even if the works had been undertaken perfectly, a view with which Miss Wong, counsel for the Plaintiff, agreed.

60. Secondly, the judge held that the further damage (i.e. after stage 1) was caused by the Defendant's own failure to allow the Basement Tenant to complete the works. It may be that the judge should not have assumed that the Basement Tenant would have completed the rest of the works properly (there being evidence that the workmen had failed to clean up and had caused the collapse of the false ceiling as a result of stage 1 works). It is also arguable that the Basement Tenant might also have been at fault in contributing to the hostile relations it had with the Defendant.

61. However it is clear that the Defendant could and should have mitigated his loss and damage by sending in his own contractors to finish the work. According to his own contractors' quotation, it would have cost only $26 900 and the evidence was that the works would have taken only a day. There was no evidence why the Defendant could not have caused the works to be completed over the course of a Sunday, when the Premises were closed for business.

62. Thirdly, the judge found that the Defendant had affirmed the tenancy by presumably restoring the status quo by 12 February 2001. With respect to the judge, for the reasons set out in paragraphs 53-4 above, he was mistaken in assuming on the evidence that the remedial works had been done by 12 February 2001.

63. However, whether the Defendant had affirmed the tenancy or not at that stage is not significant when considering whether the Defendant was entitled to rescind for breach of the covenant for quiet enjoyment. What is significant is the extent of the breach.

64. A breach of the covenant for quiet enjoyment can be of many types. A serious breach may entitle the tenant to rescind, but less serious breaches would only sound in damages. In the present case, it is arguable that the way the Basement Tenant undertook the stage 1 works was a breach by the Plaintiff of the covenant for quiet enjoyment. The Plaintiff can hardly suggest that the Basement Tenant was not his agent when it had relied on cl. 2.22 of the Tenancy Agreement to obtain entry.

65. However the breach could have been easily rectified by the Defendant sending in his own contractors to finish the work (assuming he did not trust the Basement Tenant's workmen for the rest of the work) at a relatively low cost and at a time not affecting his business. Instead he chose to suffer the works to remain uncompleted, with the consequential further loss and damage alleged.

66. In the circumstances, there was no arguable defence that the breach of the covenant of quiet enjoyment entitled the Defendant to rescind the Tenancy Agreement, although it would entitle him to claim damages. The extent of such damages is considered below.

(5) Stay of execution pending counterclaim for damages for breach of covenant

67. The fifth ground of appeal was that the judge should have stayed execution of the judgment pending trial of the counterclaim. It is well-established practice that where there is a plausible counterclaim, the correct order should be to give judgment for the claim, with a stay of execution pending trial of the counterclaim.

68. In the present case, the judge considered $25 000 to be liquidated damages and therefore the question of a stay of execution pending determination of the counterclaim did not arise. As I consider that there is at least an arguable case that the $25 000 was not liquidated damages, it seems to me that the Defendant has a plausible counterclaim for the damages allegedly suffered as a result of the alleged breach of the covenant for quiet enjoyment.

69. The damages are said to comprise the amount of $3300 in extra payment to his workers and $2 000 for loss of profit due to a late start of business on 18 December 2000, $4 000 in loss adjusters' fees and $1 200 for mice bait to combat an outbreak of mice said to be caused by the uncompleted works (assuming this had to be done urgently before completing the works).

70. As noted above, the loss and damage allegedly suffered after 18 December 2000 was due to the Defendant's failure to mitigate, which costs of mitigation (on the Defendant's own evidence) would only have been $26 900. Although this sum had not been pleaded in the Counterclaim, assuming that this amount could be included as loss and damage caused by the Plaintiff's alleged breach of the covenant for quiet enjoyment, the total amount of the counterclaim would be $37 400 at most.

(6) Triable issue

71. As a matter of completeness, the last ground of appeal was a general ground to the effect that the judge should have found that there was or were triable issue(s) such that summary judgment was not appropriate. No specific grounds were identified, and presumably this was a reference to the "argueability" of the other grounds of appeal. I would reject this ground of appeal for the reasons set out above, especially taking into account the contemporaneous correspondence and the Defendant's own quotation.

Order

72. Accordingly, I would allow the appeal but only to the extent that the judge's order should be varied by a stay of execution of the sum of $37 400 pending the trial of the counterclaim, which I direct should be heard at the same time as the Plaintiff's assessment of damages. It is understood that the Plaintiff is holding the deposit paid by the Defendant to the Plaintiff's predecessor in title. It will be a matter for accounting between the parties as to how the order should be implemented and there is liberty to apply to the judge at first instance in this regard.

73. The parties have made submissions to the court on the question of costs. In the main the Plaintiff has succeeded, but there was no offer for a stay of execution of any amount. I consider that the appropriate order as to costs should be that the judge's order on

costs should not be disturbed but that there should no order as to the costs of the appeal.

Hon Yam J:-

74. I agree.

Representation: