ONTONE FINANCE CO LTD v. LEUNG SIU KEE AND OTHERS

HCA 408/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO. 408 OF 2011

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J U D G M E N T

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THE APPLICATIONS BEFORE THE COURT

1.  Before the court are 2 summonses issued by the plaintiff in HCA 408/2011 and 433/2011, Ontone Finance Company Limited (“Ontone”), on 20 September 2011 against each of the defendants in those actions for summary judgment (“Summary Judgment Application”).

2.  Further, the 2^nd defendant in HCA 372/2011, the 1^st defendants in HCA 408/2011 and the 1^st and 2^nd defendants in HCA 433/2011 have applied by summonses dated 14 October 2011 for orders that the 3 actions be consolidated (“Consolidation Applications”).  By Orders made on 17 October 2011, Master Levy directed that the Consolidation Applications be adjourned to be dealt with immediately after the disposal of the Summary Judgment Applications.  Although the 2 letters dated 23 November 2011 by which Messrs Deacons, solicitors for Ontone, made an appointment with the Clerk of Court to fix a hearing date referred to just the Summary Judgment Applications so that only those applications were formally listed for hearing on 6 February 2012, counsel for the defendants in HCA 408/2011 and 433/2011 also made submissions in support of the Consolidation Applications, notwithstanding the absence of the defendants in HCA 372/2011.      

ONTONE’S CLAIMS IN HCA 372, 408 AND 433 OF 2011

3.  Ontone, a Hong Kong company owned[1] and controlled by Ms Yau Sze Man Elsa (“Yau”), is and was at all material times a licensed moneylender. 

4.  In HCA 372/2011, 408/2011 and 433/ 2011, Ontone claims against the borrowers and guarantors for the outstanding principal and interest due under each of the original/renewed loan agreements (“Loan Agreements” collectively) set out in the Schedule to this Judgment.

The defendants

5.  According to Elsa Yau, she first came to know Francis Chan, the second-named 1^st defendant in both HCA 408/2011 and 433/2011 in about 2005 through the introduction of a mutual friend.  Through Francis Chan, she also became acquainted with Dennis Leung, Alan Chan and Freeman Lam, the other three 1^st defendants in HCA 408/2011 and 433/2011.  These 4 gentlemen were held out to Elsa Yau to be business partners in the accounting profession.  In this regard, there is evidence before the court that Dennis Leung was an associate of the Hong Kong Society of Accountants whereas Alan Chan was a Certified Practising Accountant of CPA Australia and a Certified Public Accountant of the Hong Kong Institute of Certified Public Accountants.

6.  Elsa Yau further recalls that Dennis Leung and Francis Chan started to approach her for loans shortly after late July 2008 when she mentioned for the first time her moneylending business through Ontone.  She was given to understand that they were looking for funds to invest in projects in the Philippines (through SinoPhil) and Inner Mongolia. 

7.  With regard to SinoPhil, the guarantor under Loan Agreements Nos. 388, 392, 395 (prior to its renewal) and 396 and the 2^nd defendant in HCA 408/2011, the evidence before the court shows that Dennis Leung was a director until 21 January 2010.  Further, Freeman Lam has since 15 August 2008 held 100 ordinary shares of US$1 each of and in one Rockingham Development Limited (“Rockingham”), a BVI company which has the following interests in SinoPhil :

(1)   On 15 August 2008, Rockingham applied for 50 ordinary shares of US$1 each in the capital of one Fordstead Holdings Ltd which then held 99% of the shares of and in SinoPhil.

(2)   On 8 October 2009, Fordstead transferred 20% of the shares of and in SinoPhil to Rockingham.

In other words, Freeman Lam is and was at material times indirectly interested in SinoPhil through his shareholding in Rockingham.  Loan Nos. 388, 392, 395 (before its renewal) and 396 were in fact signed by Freeman Lam for and on behalf of SinoPhil.

8.  As for the other guarantors under Loan Agreements Nos. 395 (upon its renewal) and 452, Leung Wing Kei (“Mrs Lam”), the first-named 2^nd defendant in HCA 433/2011, is Freeman Lam’s wife.  Prior to 22 September 2010, Francis Chan and one Madam Tong Pui Han (whose address on the relevant company annual return is the same as that of Francis Chan) each held 50% of the shares of and in Tobo, another guarantor under Loan Agreements Nos. 395 (upon its renewal) and 452 and the third-named 2^nd defendant in HCA 433/2011.  On 22 September 2010, all their shares in Tobo were transferred to one Lollipop Investments Ltd, a BVI company in which Francis Chan and Madam Tong each held 50 shares of US$1 each until 1 November 2010 when Francis Chan transferred his shares to one Lau Lai Kam.

9.  To complete the dramatis personae, Margaret Leung, the borrower under Loan Agreements Nos. 416 and 425/426 and the 1^st defendant in HCA 372/2011, was held out to Elsa Yau as the 4 gentlemen’s business partner in the projects for which they were seeking funding.  Edmond Lam, the guarantor under Loan Agreements Nos. 416 and 425/426 and the 2^nd defendant in HCA 372/2011, describes himself as having been in an intimate relationship with Margaret Leung. He is also Freeman Lam’s father.

The terms of the Loan Agreements

10.  The Loan Agreements were made on Ontone’s standard form and were practically in identical terms.  By way of example, Loan Agreement No. 388 provided as follows:

「貸款合同

本貸款合同由安通財務有限公司，地址：新界大埔仁興街一至十七號美馨大廈地下四號舖（以下簡稱“貸款人”）和梁兆基，陳方剛，陳肇倫，林霆峰 (以下簡稱“借款人”)于二○○八年九月一日在香港簽定。

鑒于：

借款人因流動資金需要，向貸款人申請港幣壹佰萬元正的貸款，貸款人同意按下列條款提供上述貸款，雙方同意：

1． 定義：

擔保人 ： 中菲國際礦業有限公司

債務 ： 指根據貸款合同，借款人應承擔的貸款本金，利息和一切有關費用。

貸款期 ： 指第一次用款日起計算十二個月。

付息日 ： 指每次計息期的最後一天。

計息期 ： 指貸款合同第四條規定的固定期限。

用款期 ： 指貨款合同由借款人及擔保人聯簽，即時支取貸款。

2． 貸款人的責任：

在借款人履行貸款合同各項條款的條件下，貸款人同意向借款人提供上述貸款。

3． 借款人的責任：

借款人向貸款人保証履行貸款合同各項條款和按期償還債務。

4． 利息：

計息期應從第一次用款日起每一個月計算一次。如果付息日為銀行假期，可順延為下一個銀行工作日。

貸款利率為每百萬元為三十六%（年率）。

利息以港幣支付。

借款人如逾期清付全部或部份應付款項，則須補交逾期利息，逾期利息按原貸款利率加12%（年率）計收。

5． 借款人聲明及保証：

借款人有足夠的財力償還按本合同所列條款的貸款及履行本貸款合同條文所訂有的責任。

借款人在簽署和履行本貸款合同時已經取得所有必須的授權，本貸款合同對借款人是具有法律的約束力的責任文件。

擔保人聲明及保証：

擔保人是依據有關法律注冊成立的企業，具有法人地位，有足夠的法定權力按本合同所列條款擔保借取此筆貸款並簽署及履行本貸款合同條文所訂有的責任。

擔保人在簽署和履行本貸款合同時已經取得所有必須的授權，本貸款合同對借款人是具有法律的約束力的責任文件。

6． 還款：

借款人應按貸款期的還款計劃，到期歸還貸款。

7． 其它：

對本合同內任何條款，各方均不得以口頭形式或其它形式修改、放棄、撒銷或終止。

本合同所提的貸款人亦包括貸款人之繼承人、承讓人；借款人及擔保人亦包括經貸款人同意的繼承人、承讓人；

本合同不論因何種原因而在法律上成為無效合同或部份無效，借款人仍應履行一切還款責任。若發生上述情況，貸款人有權終止本合同，並立即向借款人追償欠款本息及其它有關款項。

8． 適用法律及糾紛的解決：

本合同按香港法律訂立，受香港法律管轄：

任何有關本合同之訴訟應在香港法院進行;

在爭議解決期間，除爭議事項外，各方應繼續履行本合同規定的其它條款。

9． 附則：

本合同用中文書寫壹式三份，均有同等效力；借款人、貸款人及擔保人各執壹份。」

11.  Each of the borrowers and guarantors signed/countersigned the Loan Agreements without any qualifications as to the capacity in he/she/it did so or the extent of liability so contracted by him/her/it.

12.  Insofar as the loan agreements the subject-matters of HCA 408/2011 and 433/2011 are concerned, the cheques by which the advances under Loan Agreements Nos.392, 395 and 396 were made were drawn by Ontone in favour of Margaret Leung, according to Elsa, at the direction of the borrowers thereunder.  However, receipt of the cheques relevant to Loan Agreements Nos. 392 and 395 was acknowledged by one or more of the borrowers.  Further, the payment of monthly interests under clause 4 of each of the Loan Agreements, even those under which Margaret Leung was not the borrower, was secured by post-dated cheques drawn on Margaret Leung’s personal account.  According to Elsa Yau, she was told that it was part of an internal arrangement between Dennis Leung, Francis Chan, Alan Chan, Freeman Lam and Margaret Leung.

Performance of the Loan Agreements

13.  Prior to February 2010, interests under the Loan Agreements had been paid monthly as follows:

Loan Agreement Number	Total Amount of Interest Payable up to 28.2.2011	Total Amount of Interest Actually Paid
388	$1,080,000	$450,000
392	$1,064,986.30	$450,000
395	$2,030,000	$980,000
396	$1,030,246.58	$410,000
416	$776,630.14	$330,000
425/426	$1,301,424.66	$525,000
452	$783,808.22	$245,000

14.  Interests under the Loan Agreements were last paid on 27 January 2010.  Default began from February 2010. 

Amounts claimed by Ontone

15.  In summary, Ontone claims the following sums for outstanding principals and interests (calculated up to 28 February 2011) under the Loan Agreements:

(1) under HCA 372/2011:

Loan Agreement Number	Outstanding Principal	Outstanding Interest up to and including 28.2.2011
416	$1,000,000	$466,630.14
425/426	$1,500,000	$776,424.66
	Grand Total	$3,723,054.80

(2) under HCA 408/2011:

Loan Agreement Number	Outstanding Principal	Outstanding Interest up to and including 28.2.2011
388	$1,000,000	$630,000
392	$1,000,000	$614,986.30
396	$1,000,000	$620,246.58
452	$1,000,000	$538,808.22
	Grand Total	$6,404,041.10

(3) under HCA 433/2011:

Loan Agreement Number	Outstanding Principal	Outstanding Interest up to and including 28.2.2011
395	$2,000,000	$1,050,000
	Grand Total	$3,050,000

GROUNDS OF DEFENCE TO ONTONE’S CLAIMS IN HCA 408/001 & 433/2011

The position of the 1^st defendants in HCA 408/2011 and the 1^st and 2^nd defendants in HCA 433/2011 (Dennis Leung, Francis Chan, Alan Chan, Freeman Lam, Mrs Lam and Tobo)

16.  In opposition to Ontone’s claims, the borrowers under Loan Agreements Nos. 388, 392, 395, 396 and 452 and the guarantors under Loan Agreement No.395 (renewed) contend that those agreements were not genuine loan transactions but were entered into to enable Elsa Yau to use Ontone’s funds to invest in Margaret Leung’s businesses. More particularly, it is alleged that :

(1) Dennis Leung, Francis Chan, Alan Chan and Freeman Lam carried on business as management consultants through the Kossilon group of companies[2] and were providing services as such to Margaret Leung.

(2) Margaret Leung was in possession or control of certain mining rights in the Philippines and mining and forestry rights in northern China but encountered cash flow problems and was looking for a new business partner.

(3) On the other hand, Elsa Yau was known to Dennis Leung, Francis Chan, Alan Chan and Freeman Lam to be looking for opportunities in the mining and recycling industries.

(4) Dennis Leung, Francis Chan, Alan Chan and Freeman Lam therefore brought the 2 ladies ogether.

(5) For such purposes, Dennis Leung, Francis Chan and Freeman Lam had, at Elsa Yau’s request made in early September 2008, visited the Philippines to inspect Margaret Leung’s mines on 16 and 17 September 2008 and submitted to Elsa Yau an “information memorandum” on 6 October 2008.  Dennis Leung, Francis Chan, Alan Chan and Freeman Lam flew to northern China in December 2008 and January 2009 to prepare for a visit by Elsa Yau herself.  Elsa Yau was provided with documents on Margaret Leung’s forestry rights in early February 2009.  She eventually made the trip herself on 6 and 7 February 2009 in the company of Dennis Leung, Francis Chan and Freeman Lam.

(6) Margaret Leung and Elsa Yau eventually reached the following agreement:

(A) Elsa Yau would allow Margaret Leung use of certain funds which would come from Ontone, instead of Elsa Yau directly.

(B) Such funds would represent Elsa Yau’s investment in Margaret Leung’s businesses and would entitle Elsa Yau to explore, develop and share Margaret Leung’s said mining and forestry rights.

(C) The flow of funds from Ontone to Margaret Leung would however have to be dressed up as advances from Ontone (representing Elsa Yau) to Dennis Leung, Francis Chan, Alan Chan and Freeman Lam (representing Margaret Leung).

Reliance is placed on the facts that some of Ontone’s cheques were issued to Margaret Leung directly and the post-dated cheques for interest payments were issued by Margaret Leung.

17.  By the said alleged agreement, Elsa Yau is said to have secured a share of Margaret Leung’s said mining and forestry rights at a “cheaper price”.

18.  As for the need to interpose others as borrowers and guarantors, it is alleged that if Margaret Leung had been named as either the borrower or guarantor, her credit rating would have been seriously affected which she did not want to see happen.  On the other hand, the 4 gentlemen were willing to lend their names to Margaret Leung because they received fees for doing so and had been orally assured by Elsa Yau that under no circumstances would either Ontone or Elsa Yau sue any one of them or the guarantors on the loan agreements signed by them or otherwise for the repayment of the funds so made available by Elsa Yau to Margaret Leung.

19.  In short, Dennis Leung, Francis Chan, Alan Chan, Freeman Lam, Mrs Lam and Tobo are holding Ontone to Elsa Yau’s said oral assurances to them.  Alternatively, it is suggested that in the abovementioned circumstances, they entered into the loan transactions as agents for Margaret Leung without contracting any personal liability.

The position of the 2^nd defendant in HCA 408/2011 (SinoPhil)

20.  In contrast, the only grounds of defence now maintained on pleading by SinoPhil are that it did not guarantee the liabilities under Loan Agreements Nos. 388, 392 and 396 or alternatively, that there was no consideration moving from Ontone to support the guarantees. 

21.  It is also noteworthy that there was initially an allegation by SinoPhil that full repayment of principals and interests had been made under Loan Agreements Nos. 388, 392 and 396, verified by SinoPhil’s director, Lam Chee Kin, firstly in the statement of truth indorsed on SinoPhil’s Defence filed on 4 June 2011 and again in his Affirmation filed on 12 October 2011 in opposition to Ontone’s application for summary judgment.  In the latter document, the director further stated that SinoPhil was informed of the fact of full repayment by “the 1^st defendants” (ie Dennis Leung, Francis Chan, Alan Chan and Freeman Lam).

22.  These are clearly bad pleas and were not pursued by SinoPhil at the hearing on 6 February 2012.  Mr Martin Wong, counsel for SinoPhil, accepted that SinoPhil’s defence would rise and fall with that of Dennis Leung, Francis Chan, Alan Chan and Freeman Lam on the facts.

RELEVANT PRINCIPLES

23.  It is trite law that a defendant responding to an application for summary judgment must condescend to particulars.  The mere assertion in an affidavit of a given situation by the defendant does not, ipso facto, ground leave to defend.  The defendant must satisfy the court that his evidence is capable of being believed and that on the basis of such evidence, there is a fair or reasonable probability of the defendant having a real or bona fide defence.  In deciding whether there is a fair or reasonable probability of the defendant having a real or bona fide defence, the court does not isolate each factual issue and consider whether it is possible that the defendant’s story on that issue is credible.  Rather, the court must look at the whole situation.  In assessing the credibility of the defendant’s factual case, while the court will not embark on a mini-trial on affidavit evidence, the court is not obliged to suspend its critical faculties and assume that the defendant’s evidence is accurate.  If having regard to inherent plausibility, inconsistency with contemporaneous documents and other compelling evidence, the defence is not credible, the court must say so.  If the defendant’s defence is incredible in any material respect, it cannot be said that there is a fair or reasonable probability that the defendant has a real or bona fide defence.  See eg National Westminster Bank plc v Daniel [1993] 1 WLR 1453, per Glidewell J at 1457; Manciple Ltd v Char On Man [1995] 3 HKC 459 (CA), per Mortimer JA at 466E-G; Re Safe Rich Industries Ltd, CACV 81/94, unreported, per Bokhary JA at page 5; Microsoft Corporation v Electro-Wide Ltd [1997] FSR 580, per Laddie J at 593 and DMT Finance Ltd v Ming Kee Investments Ltd, HCCL 11/1998, unreported, per Stone J at page 4.

DEFENCE INCREDIBLE

24.  The circumstances described by the defendants as leading to their being involved as borrowers and guarantors are completely at variance with the express terms of Loan Agreements Nos. 388, 392, 395, 396 and 452. 

25.  However, the liability thereby assumed by them on the face of such agreements are, on any view, substantial. 

26.  Even if it were thought to be necessary for these loan documents to be created, there could be no or no compelling reasons why the true underlying transaction was not contained, or evidenced, in some form of writing.  Not only had these borrowers and guarantors failed to procure any written acknowledgment of the assurances of no recourse from Ontone/Elsa Yau or indemnity against liability from Margaret Leung, except for an email confirming the itinerary of Elsa Yau’s trip to China in February 2009 (which she says was undertaken to verify the purpose of the loans to be advanced to Margaret Leung), there was not even a single email exchanged between Elsa Yau, Margaret Leung, Dennis Leung, Francis Chan, Alan Chan and/or Freeman Lam, pointing to any of the points mentioned in paragraphs 16 to 18 above, not even in a peripheral manner.  Nor is there any document that shows that Dennis Leung, Francis Chan, Alan Chan and Freeman Lam or any of them were acting for Margaret Leung.  This is to my mind surprising given the professional background of these gentlemen and the professional capacity in which they say they were acting when they became involved in what was essentially a deal between Elsa Yau and Margaret Leung.  One must therefore be forgiven for approaching the defence allegations with care and caution.

27.  I agree with Mr Anson Wong, counsel for Ontone, that such allegations do not bear scrutiny and are indeed incapable of belief for the following reasons.

28.  First, Ontone has also sued Margaret Leung and Edmond Lam, respectively the borrower and guarantor under Loan Agreements Nos. 416 and 425/426, in HCA 372/2011. According to the 1^st defendants in HCA 408/2011 and the 1^st and 2^nd defendants in HCA 433/2011, Loan Agreements Nos. 416 and 425/426 were signed in the same circumstances as the others.  If what the defendants say in HCA 408/2011 and HCA 433/2011 were true, one would have expected a similar line of defence to have been set up in HCA 372/2011.  It is thus worthy of note that Margaret Leung defends Ontone’s claims against her only on the ground that she has already made full repayment of principals and interests under those agreements, thereby implicitly accepting the loan agreements as such, whereas Edmond Lam seeks to avoid the guarantees on the ground that they were procured by Margaret Leung’s undue influence, of which Ontone had knowledge. 

29.  Second, as mentioned in paragraph 21 above, SinoPhil initially asserted, once even on oath, full repayment of principals and interests under Loan Agreements Nos. 388, 392 and 396 on information provided by Dennis Leung, Francis Chan, Alan Chan and Freeman Lam. The information so provided by these gentlemen to SinoPhil is clearly inconsistent with the factual case that they are now running.  It is also most curious given that, as explained in paragraph 7 above, Freeman Lam was interested in SinoPhil through Rockingham at the time when such position was taken by SinoPhil.

30.  Third, Ontone parted with the funds the subject-matters of the Loan Agreements between September 2008 and April 2009, some than 2 to 3 years ago.  It is not shown or even suggested that Elsa Yau has been given what she had allegedly bargained for with Margaret Leung.   Indeed, the court has no evidence whatsoever as to what precisely Elsa Yau was supposed to get for the monies, not even as to the entities in which she was supposed to obtain interest(s).  More importantly, the amounts advanced under the Loan Agreements added up to just HK$8.5 million which appears to me to be pitifully inadequate for acquiring any mining or forestry rights, even if one accepts for a moment the suggestion of a discount. This is particularly so, having regard to the “Information Memorandum” mentioned in paragraph 16(5) above which shows that the investment being solicited by SinoPhil in October 2008 was to the tune of HK$230 million in return for just a 20% equity interest in SinoPhil.  There is also before the court what is called a “fund offer document” which shows the availability of a temporary working capital in the form of a convertible loan of RMB200 million to the company through which the forestry rights in northern China were being or to be exploited.  

31.  Fourth, the trip to the Philippines said to have been undertaken by Dennis Leung, Francis Chan and Freeman Lam at Elsa Yau’s requests to inspect and study Margaret Leung’s business there in fact pre-dated Loan Agreements Nos. 388 and 392 and the submission of the report on such tour also pre-dated Loan Agreement Nos. 395 and 396.  Further, there is no dispute that they had not sought any reimbursements for the expenses of undertaking these and the China trips and reporting thereon from either Elsa Yau or Margaret Leung.

32.  Fifth, the suggestion that the funds released under the Loan Agreements were investments by Elsa Yau in Margaret Leung’s businesses whatever they were, which by definition could be profit or loss making, does not sit well with the fact that fixed monthly payments were made to Ontone on the funds at the same rate(s) as the interest rate(s) prescribed in clause 4 of each of the Loan Agreements.

33.  Sixth, even if it were really necessary for the form of a loan agreement and guarantee to be adopted, there is no plausible explanation for the need to interpose others as borrowers and guarantors.  The assertion of an alleged desire on the part of Margaret Leung to avoid jeopardy to her credit rating breaks down in face of the fact that she was named as the borrower under Loan Agreements Nos. 416 and 425/426.  Looking at it from the point of view of the borrowers and guarantors, it is unclear why they agreed to be dragged in, apart from a wholly unparticularised assertion of receipt of fees for the services they rendered.

34.  Lastly and most tellingly, by an email dated 20 August 2009 from Alan Chan to Elsa Yau and copied to the other 3 borrowers but, interestingly, not Margaret Leung, Alan Chan provided Elsa Yau a “Loan Repayment Schedule” setting out their plan for the repayment of outstanding principals and interests under the Loan Agreements.  This was followed by another email dated 15 September 2009 from Dennis Leung to Elsa Yau and copied to the 3 other borrowers but, again, not Margaret Leung.  By this email, Dennis Leung provided Elsa Yau with a copy of a pay-in slip showing a deposit into Ontone’s account of HK$277,500 covering the August interest payments of all the Loan Agreements as promised in the said “Loan Repayment Schedule”.  These documents flatly contradict the defence case.

ORDERS

35.  For the foregoing reasons, I enter summary judgment in favour of Ontone as follows:

(1) in HCA 408/2011 :

(A) against Dennis Leung, Francis Chan, Alan Chan and Freeman Lam as borrowers under Loan Agreements Nos. 388, 392, 396 and 452 for the total sum of $4,000,000 with interests in the total sum of $2,404,040.78 for the period up to and including 28 February 2011 and thereafter at the rate of 48% per annum on the principal sum of $3,000,000 and 42% per annum on the principal sum of $1,000,000 until the date of judgment and thereafter at judgment rate;

(B) against SinoPhil as guarantor under Loan Agreements Nos. 388, 392 and 396 for the total sum of $3,000,000 with interests in the total sum of $1,865,232.88 for the period up to and including 28 February 2011 and thereafter at the rate of 48% per annum until the date of judgment and thereafter at judgment rate;

(2) in HCA 433/2011:

(A) against Dennis Leung, Francis Chan, Alan Chan and Freeman Lam as borrowers under Loan Agreement No. 395 for the sum of $2,000,000 with interest in the total sum of $1,050,000 for the period up to and including 28 February 2011 and thereafter at the rate of 42% per annum until the date of judgment and thereafter at judgment rate;

(B) against Mrs Lam, Freeman Lam and Tobo as guarantors under Loan Agreement No. 395 for the sum of $2,000,000 with interest in the total sum of $1,050,000 for the period up to and including 28 February 2011 and thereafter at the rate of 42% per annum until the date of judgment and thereafter at judgment rate.

36.  Given my above decision on the Summary Judgment Applications, the Consolidation Applications do not arise for determination.  As said in paragraph 2 above, although the Consolidation Applications in HCA 408/2011 and HCA 433/2011 are not formally before this court, they have been argued.  To save time and costs, I hereby also dismiss them.

37.  I also make an order nisi in each of HCA 408/2011 and 433/2011 that the defendants pay Ontone’s costs of the action including the costs of the summary judgment application, to be taxed if not agreed, with Certificate for Counsel.

SCHEDULE