LEE AH KEUNG AND ANOTHER v. 李國忠 transliterated as LEE KWOK CHUNG AND ANOTHER

DCMP 2128/2018

[2022] HKDC 846

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 2128 OF 2018

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JUDGMENT

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1.  In these proceedings, the 1^st plaintiff and the 2^nd plaintiff (“P1” and “P2”, and “Ps” collectively) sue the 1^st defendant and the 2^nd defendant (“D1” and “D2”, and “Ds” collectively) for recovery of possession of a unit (“House A”) inside a building (“the Building”) erected on a piece of land in Fanling. D1 resists Ps’ claim and counterclaims for a possessory title to House A by adverse possession.

A.  THE BACKGROUND

2.  I would first set out the background facts which are not in dispute.

3.  Ps are the sons of Lee Ah Ting (李亞丁) (“Ah Ting”), also known as Li Chun Ning (李春寧). P1 is the elder brother of P2.

4.  D1 is the son of Lee Sun Kwai (李新貴) (“Sun Kwai”).

5.  Ah Ting’s father is Lee Yau Hang (李有恆) (“Yau Hang”), and Sun Kwai’s father is Lee Yau Fun (李有勳) (“Yau Fun”). Yau Hang and Yau Fun are brothers, and their father is Lee On Kwong (李安光).

6.  From 1954 to 1998, Luen (or Lun) Shing Tong (聯勝堂) (“LST”) was one of the registered owners of Section H of Lot 10 in DD 85 (“Lot 10H”). Ah Ting was one of the managers of LST in the same period.

7.  On 19 October 1998, Ah Ting became the sole registered owner of Lot 10H.

8.  By a Deed Poll dated 31 March 1999, Ah Ting divided Lot 10H into Subsection 1 of Section H of Lot 10 in DD 85 and the Remaining Portion of Section H of Lot 10 in DD 85 (“Lot 10H RP”).

9.  Ah Ting passed away on 2 August 2006.

10.  Sun Kwai passed away in 2007.

11.  By an Assignment dated 2 July 2008, the Executrix of the will of Ah Ting assigned Lot 10H RP to Ps and Lee Ah Ching (also the son of Ah Ting) as tenants in common in equal shares.

12.  On 11 July 2011, Lee Ah Ching assigned his one-third interest in Lot 10H RP to Ps in equal shares. P1 and P2 therefore became the only registered owners of Lot 10H RP, as tenants in common in equal shares.

13.  By a Deed Poll dated 10 November 2014, Ps divided Lot 10H RP into Subsection 2 of Section H of Lot 10 in DD 85 (“the Land”) and the Remaining Portion of Section H of Lot 10 in DD 85.

14.  The Building is on the Land. There are two units inside the Building, i.e. House A and another unit (“House B”). House A is now being occupied by D1 and his family. House B is possessed by Ps.

15.  House A is the subject matter of these proceedings. I have examined the evidence in the trial bundle concerning the rateable value of House A, and I am satisfied that the disputes in these proceedings are within the jurisdiction of this court.

16.  As to why House A is now being occupied by D1 and his family, Ps and D1 have put forward different cases. I would resolve the differences between Ps and D1 in this judgment.

17.  Having considered the evidence as to service adduced by Ps, I am satisfied that the documents in these proceedings have been duly served on D2. Accordingly, although D2 has not taken any step in these proceedings, being a party having been duly served, D2 would also be bound by this judgment.

18.  In the trial, Ps are represented by Mr Lewis Law, and D1 is represented by Mr Albert Cheung, both of counsel.

B.  THE PARTIES’ RESPECTIVE CASES

B1.  Ps’ case

19.  Ps’ case is as follows:-

(1)  From mid or late 1970’s to 18 October 1998, Ah Ting, on behalf of LST, had granted a bare licence to Sun Kwai’s family (including D1) to occupy and reside at House A.

(2)  Since Ah Ting acquired Lot 10H on 19 October 1998, he had granted a bare licence to Sun Kwai’s family (including D1) to occupy and reside at House A.

(3)  When P1, P2 and Lee Ah Ching became the owners of Lot 10H RP on 2 July 2008, they continued to allow D1 and his family to occupy and reside at House A on a bare licence.

(4)  When Ps became the only tenants in common in Lot 10H RP, they continued to allow D1 and his family to occupy and reside at House A on a bare licence.

(5)  Since around 2011, Ps have made repeated oral requests to D1 and his family, asking them to move out from House A.

(6)  On 24 July 2018, Ps issued a letter through a law firm to D1, requiring D1 to cease to occupy House A. The bare licence previously granted to D1 and his family has been revoked by this letter.

(7)  Notwithstanding the revocation of the bare licence and the repeated requests made to D1 and his family, D1 and his family refused to cease their occupation of House A and remained in wrongful possession of House A.

(8)  Ps now claim against Ds for vacant possession of House A and mesne profits.

20.  Ps have given evidence in support of their case.

B2.  D1’s case

21.  D1’s case is as follows:-

(1)  Yau Fun commissioned the construction of the Building on the Land in the 1930s. At that time, Sun Kwai and Ah Ting lived in the Building, together with various members of the extended family.

(2)  In [4(6)] of the Amended Defence and Counterclaim, it is pleaded that:-

“In around 1978, at around the same time as the birth of [D1], [Sun Kwai], notwithstanding the objections from other members of the extended family living in the Building:

(a) caused [a partitioning wall (“the Partitioning Wall”)] to be built, dividing the Building into [House A] and House B;

(b) caused a horizontal slab and an internal staircase to be constructed in House A, hence creating another floor; and

(c) installed a door with lock to [House A] leading to the outside world.”

(3)  D1’s parents have since then been in uninterrupted physical control and possession of House A without lease, licence, consideration and permission to the exclusion of the extended family and the rest of the world.

(4)  Since D1 was born, he has been living in House A.

(5)  After Sun Kwai passed away in 2007, D1 has continued to have uninterrupted physical control and possession of House A without lease, licence, consideration and permission to the exclusion of the extended family and the rest of the world.

(6)  Based upon all these, D1 counterclaims that he has already acquired a possessory title to House A by adverse possession when Ps commenced these proceedings on 1 August 2018.

22.  D1 is the only witness in his case.

C.  THE CORE ISSUE

23.  In my view, the core issue in this case is whether D1’s parents began to have possession of House A with permission from Ah Ting, and continued to have such possession under the permission of Ah Ting’s family. For the reasons set out below, the answer to this core issue is in the affirmative. Accordingly, the adverse possession claim put forward by D1 must be dismissed.

D.  THE PRINCIPLES

24.  The principles concerning adverse possession are well established. A useful summary can be found in Tsang Foo Keung v Chu Jim Mi Jimmy[1], in which Harris J (Cheung JA and Yuen JA concurring) said:-

“22. Before explaining the Judge’s reasons for rejecting the 1^st defendant’s case it will be helpful to summarise the basic principles of adverse possession:-

(1) If the law is to attribute possession of land to a person who can establish no paper title to it, he must be shown to have had both factual possession during the relevant period (in the present case 20 years as the alleged possession occurred prior to 1991) and the requisite intention to possess.

(2) What constitutes a sufficient degree of exclusive physical control depends on the circumstances of the case and, in particular, the nature of the land and the manner in which land of that nature is commonly enjoyed. What must be shown is that the alleged possessor has been dealing with the land as an occupying owner might expect to deal with it.

(3) The requisite intention is to exclude the world at large, including the owner, from the land so far as is reasonably practicable and so far as the law allows.

(4) The person claiming adverse possession has the burden of proving both exclusive physical control and the requisite intention. Although the standard of proof is still the normal civil standard, ie on the balance of probabilities, commensurate with the serious consequences of finding that the holder of the paper title has been disposed the evidence of exclusive possession and intention must be compelling. It cannot be lightly assumed that the paper title holder has foregone his interest in land.

(5) Evidence of subjective intent should be approached with caution. Intention is normally better assessed by inference drawn from the acts of the possessor in the light of nature of the land and its use.

……” (Emphasis added)

25.  The possession periods by successive squatters can be added up for the purpose of showing adverse possession. The Limitation Ordinance is not concerned with whether a squatter has acquired a title but with whether the paper owner’s right of action has been barred. For this purpose, all that matters is that there should have been continuous adverse possession for the period of limitation. The rights inter se of the successive persons who may have been in possession adversely to the paper owner since the paper owner was dispossessed are for this purpose irrelevant. In Sze To Chun Keung v Kung Kwok Wai David & Anor[2], Lord Hoffmann said in the Privy Council:-

“It therefore appears to their Lordships that, on the facts as pleaded, the land has been continuously in adverse possession since 1955 and that the plaintiffs’ title was extinguished in about 1975. … At the time when proceedings were commenced, the defendant had been in possession on his own account for only two years. But this does not matter: the Limitation Ordinance is not concerned with whether the defendant has acquired a title but with whether the plaintiffs’ right of action has been barred. For this purpose, all that matters is that there should have been continuous adverse possession for the period of limitation. The rights inter se of the successive persons who may have been in possession adversely to the plaintiffs since they were dispossessed are for this purpose irrelevant.”

26.  In an adverse possession case, the registered owner is entitled to take the position of requiring the squatter to prove the adverse possession claimed by him. The registered owner is entitled to rely upon the paper title. The registered owner may test the squatter’s case and is entitled to judgment if the squatter fails to discharge the very high burden of proof required in establishing a possessory title. See Birkenhead Properties and Investments Ltd v Lam Kai Man^[3].

27.  In respect of evaluating the evidence given by witnesses, a valuable guidance can be found in Hui Cheung Fai and another v Daiwa Development Limited[4], in which DHCJ Eugene Fung SC said:-

“77. Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility: Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 (Lord Pearce) ……

78. In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events: e.g. Lam Rogerio Sou Fung v Tan Soon Gin George (unreported, HCA 2576/2005, 5 May 2011) §39 (Chu J).

79. In determining a witness’ credibility, I have also attached importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement.

80. I have cautioned myself against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at §§36-37 (Bokhary PJ)), or from the assessment of the witnesses’ character (Esquire (Electronics) Ltd v HSBC [2007] 3 HKLRD 439 at §135 (Stock JA)).”

28.  In respect of lies told by a factual witness on a central issue, the reminder given by Sir John Dyson in MA (Somalia) v Secretary of State for the Home Department[5] has to be borne in mind:-

“31. ....... where a claimant tells lies on a central issue, his or her case will not be saved by general evidence unless that evidence is extremely strong. It is only evidence of that kind which will be sufficient to counteract the negative pull of the lie. But much depends on the bearing that the lie has on the case……

32. Where the appellant has given a totally incredible account of the relevant facts, the tribunal must decide what weight to give to the lie, as well as to all the other evidence in the case, including the general evidence……

33. ...... where the appellant tells lies on a central issue in the case, the [tribunal] may conclude that they are of great significance……It will be a matter for the [tribunal] to decide whether the general evidence is sufficiently strong to counteract what we have called the negative pull of the appellant’s lies.”

E.  THE EVIDENCE

29.  Ps are the registered owner of the Land. Unless D1 can prove the adverse possession claimed by him, Ps are entitled to recover possession of House A, which is part of the Land. The burden of proving the adverse possession claimed in D1’s case is on D1. Hence, I have directed D1 to open his case and give evidence first in the trial.

30.  In the trial bundle, the parties have included some affirmations made by P1, P2 and D1 respectively. In the trial, I have made it clear that those affirmations would not be deemed as evidence in the trial. Evidence from the witnesses should be the evidence given by them while they are in the witness box.

31.  In assessing the evidence given by the witnesses, the following matters which are not in dispute or indisputable have to be borne in mind.

32.  In about 1978, some construction works (“the 1978 Works”) have been carried out inside the Building. The 1978 Works are as follows:-

(1)  building the Partitioning Wall, dividing the Building into House A and House B;

(2)  demolishing the wooden cockloft inside the Building, and building a horizontal concrete slab, and thereby creating another floor in the whole Building;

(3)  building two internal staircases, one inside House A and one inside House B, connecting the ground floor of each house to the first floor; and

(4)  creating an independent entrance/exit in House A.

33.  Before the 1978 Works, both Ah Ting’s family and Sun Kwai’s family were living in the Building. Sun Kwai’s family lived in an area behind the kitchen and underneath the wooden cockloft, which later became part of House A after the 1978 Works.

34.  Before marrying his wife in 1965, Sun Kwai worked in Pok Oi Hospital, and was living in the staff quarters of the hospital. Sun Kwai would come back and lived in the Building during holidays or festivals.

35.  Sun Kwai married his wife in 1965. Sun Kwai and his wife moved to the Building and lived therein after their marriage. They have 3 children, and D1 is the youngest son. D1 has an elder sister and an elder brother.

36.  Before Sun Kwai and his wife moving in, Ah Ting’s family was living in the Building.

37.  During the period from about 1965 to 1978, Lot 10H was owned 7/8 by LST and 1/8 by Wong Loi Kiu. Ah Ting was a manager of LST.

38.  There is no evidence showing that Sun Kwai had ever been a manager of LST.

39.  There is no evidence of any disaccord during the process of the 1978 Works. To the contrary, the 1978 Works were carried out in an orderly manner.

E1.  D1’s evidence

40.  D1 has given evidence in support of his case. In my view, D1 is an unreliable witness. His evidence is confusing and does not sit well with the undisputed or indisputable facts.

41.  Since D1 was born in 1978, his evidence concerning anything occurred before 1978 and any matter relating to the 1978 Works can only be hearsay evidence. He claimed that he learned all these matters from Sun Kwai. However, as to when and where Sun Kwai told him all these, his answers on these question are vague and imprecise. Further, even if Sun Kwai had told him something, there is no corroborating evidence showing that D1 has accurately related Sun Kwai’s words.

42.  D1 claimed that the 1978 Works were done by Sun Kwai notwithstanding the objections from other members of the extended family living in the Building.

43.  Under cross-examination, D1 at first said that Sun Kwai had not told him who objected to the 1978 Works. However, at a later time, D1 alleged that it was Ah Ting objecting to the 1978 Works.

44.  In view of the undisputed or indisputable facts as set out in [32] to [39] above, D1’s allegation that Ah Ting objected to the 1978 Works is inherently improbable. The 1978 Works are some extensive construction works inside the Building. In his evidence, D1 mentioned that his family (i.e. Sun Kwai’s family) would need to move out from the Building for a period of time for the purpose of carrying out the 1978 Works inside the Building. Given the extensive nature of the 1978 Works, it is inherently improbable that those works could be done if Ah Ting, whose whole family were living in the Building at that time, objected to those building works and refused to co-operate.

45.  Further, in view of the facts set out in the above, during the period from 1965 to 1978, the one in de facto control of the Building should be Ah Ting and not Sun Kwai, for Ah Ting was a manager of LST and Sun Kwai did not have any management role in LST. It would be more probable than not that it was Ah Ting inviting Sun Kwai and his wife to move into the Building and to live therein in about 1965. In my judgment, in about 1965, Ah Ting and Sun Kwai had a harmonious relationship.

46.  D1 alleged that Ah Ting assaulted Sun Kwai’s wife (“the alleged assault”), and this caused Sun Kwai to determine to build the Partitioning Wall to divide the Building into two units. In my view, the alleged assault mentioned by D1 is not true.

(1)  This allegation had not been raised by D1 in his pleadings and in his witness statement, and was only raised by D1 while he was giving evidence in the witness box. According to D1, the alleged assault is the event triggering the 1978 Works. That being the case, the alleged assault should be an important event in D1’s case. Yet, there is not a single word mentioning this event in D1’s pleadings and witness statement.

(2)  D1 tried to say that the relationship between Ah Ting and Sun Kwai turned sour at a time before 1978, caused by the alleged assault. In my view, if the relationship between Ah Ting and Sun Kwai had really broken down before 1978, naturally Ah Ting would have asked Sun Kwai and his family to leave the Building. After all, the Building was controlled by Ah Ting, and Sun Kwai did not have any right to stay and continue to live in the Building.

(3)  However, the truth is that Ah Ting had never asked Sun Kwai to leave. Further, as said in the above, it is inherently improbable that the 1978 Works could be done without Ah Ting’s cooperation.

(4)  In my judgment, the alleged assault is a recent invention made up by D1 in the witness box.

47.  In my judgment, D1’s allegation that the 1978 Works were done by Sun Kwai notwithstanding the objections from Ah Ting is untrue. This allegation is the cornerstone of D1’s case. Since D1’s evidence on this crucial point is untrue, I do not regard D1 as an honest and reliable witness.

48.  D1’s evidence cannot be relied upon. Save and except the matters not disputed by Ps, I refuse to accept D1’s evidence.

E2.  P1’s evidence

49.  P1 was born in 1961. At the time of the 1978 Works, he was about 16 years old. He has personal knowledge of the matters regarding the 1978 Works.

50.  According to P1, the 1978 Works were an idea from Ah Ting. Ah Ting wanted to give Sun Kwai’s family more private room, and hence had an idea of dividing the Building into 2 units and let Sun Kwai and his family live in one unit. Each of the 2 units would have its own entrance from the outside. Each unit would also have an internal staircase connecting the ground floor and the first floor. P1 also said that in fact Ah Ting himself had participated in doing the 1978 Works.

51.  P1 said that in the 90s, D1’s elder sister and elder brother moved out from House A. D1 married in about 2000. Ps had attended the wedding banquet of D1. In 2007, Sun Kwai passed away. Thereafter, only D1, his wife and his daughter have been living in House A. P1 did not know when Sun Kwai’s wife moved out from House A.

52.  P1 mentioned that in 2018, he learned from the village head, Lee Ting Yau (李丁有), that at one time, Ah Ting had invited Sun Kwai to purchase House A, but Sun Kwai did not take up the offer for he did not have sufficient money at that time. Under cross-examination, P1 was asked why he did not invite the village head to give evidence in the trial of this case. P1 said that he did not want to put the village head into an embarrassing position, for both Ps and D1 are members of the village. Mr Cheung submits that P1’s explanation is not satisfactory, for the village head would only need to speak the truth while he is giving evidence, and the village head would not be embarrassed in any way if he comes to the court to tell the truth. Mr Cheung submits that P1’s evidence is not reliable and should not be accepted.

53.  With respect, I am unable to agree with Mr Cheung.

(1)  Given that Ps and D1 are members of the same village, there is sense in P1’s explanation as to why he did not invite the village head to give evidence in this case.

(2)  Further, in his evidence, P1 also mentioned that in 2018, he heard from the village head that D1’s elder sister, Lee Ka Wai (李嘉慧), had asked Ah Ting to sell the title to House A to her (“Ka Wai’s Request”). Ah Ting refused to do so, for Ah Ting was of the view that interest in land in the village should only be held by the male members of the village. This episode has not been challenged by Mr Cheung in the cross-examination of P1. While this episode is true, P1’s evidence that in 2018, the village head also mentioned to him that Ah Ting had offered to sell House A to Sun Kwai is not something inherently improbable.

54.  Mr Cheung also submits that P1 is cavalier with the truth and readily embellishes the evidence to strengthen his case. The point relied upon by Mr Cheung is that in P1’s affirmation dated 31 July 2018, P1 claimed that in around 1970s, in view of the poor financial conditions of Sun Kwai, Ah Ting allowed Sun Kwai’s family to reside in the Building without paying any rent. In the affirmation, P1 claimed that Ah Ting was the owner of the Building at that time. Mr Cheung submits that in fact, Ah Ting was not the owner of the Building in the 1970s.

55.  With respect to Mr Cheung, in my view, there is no merit in the point taken by Mr Cheung. P1’s evidence should be understood in the proper context. P1 did not say that Ah Ting was the registered owner of the Building in the 1970s. In my view, the true meaning of P1’s words in his affirmation is that the Building was under the de facto control of Ah Ting in the 1970s. Given that Ah Ting was a manager of LST at the time, P1’s evidence is understandable.

56.  In my view, P1 is an honest and reliable witness. His evidence is consistent with the undisputed or indisputable facts and is inherently probable. I accept his evidence and attach weight to his evidence.

E3.  P2’s evidence

57.  P2 was born in 1967. His evidence is in line with P1’s evidence. His evidence remains unshaken after the cross-examination. In his evidence, he said that he had a vague memory of the 1978 Works, for he was very small at that time. Accordingly, I would not attach much weight to P2’s evidence regarding the 1978 Works. Subject to this caveat, I accept P2’s evidence.

F.  DISCUSSION

58.  Based upon the evidence accepted by this court, there is no reliable evidence in support of the adverse possession claimed by D1. I accept Ps’ case as set out in the above. Accordingly, D1’s counterclaim must be dismissed.

59.  Mr Cheung has argued that Ps’ conduct is inconsistent with their position that they are the owners of House A. Mr Cheung submits that:-

(1)  It is quite inconceivable that when Ps first planned to redevelop the Building, they planned to redevelop only House B, and not House A.

(2)  Ps’ case is that they revoked the licence given to D1 in 2011. It is inconceivable that Ps did not take action until 2018 when they finally instructed solicitors to issue a demand letter to D1.

(3)  Ps also said that they would offer one floor in the redeveloped house to D1. It is inconceivable that Ps would have offered one floor in the redeveloped house to D1 if P1 did not recognize D1’s proprietary right in House A.

60.  I respectfully differ from Mr Cheung. I do not regard the interpretation of the evidence as submitted by Mr Cheung is correct. Ps’ evidence is that initially, due to limited budget, the redevelopment plan only covered House B and the pig-pen adjacent to House B. At a later time, they extended the scope of the redevelopment plan to also cover House A. Although they asked D1 to leave House A in 2011, since they and D1 were relatives and D1’s daughter was very small at that time, they did not want to put too much pressure on D1. At one time, they said to D1 that if two houses could be erected on the Land, they could give a bare licence to D1 to live inside one floor in one of the redeveloped houses. However, eventually the plan to build two houses on the Land could not be implemented. Only one house could be built on the Land. Hence, Ps would not allow D1 to live in the redeveloped house. They wanted D1 to move out from House A, so that they could carry out the redevelopment plan. D1 disagreed. Ps continued to have negotiations with D1 to try to resolve the difference between them for many years. However, at the end, all Ps’ efforts in trying to resolve the matter amicably were in vain. Ps had no other alternative but had to take legal action against D1 in 2018. In my judgment, Ps have not conceded or waived their legal rights in any way.

61.  Further, D1 has not pleaded any waiver or estoppel in his own pleadings. D1 therefore cannot argue that Ps have waived the right to evict D1, or Ps have been estopped from doing so.

62.  Ka Wai’s Request is also an important point against D1’s case. As said in the above, this episode is not challenged by D1 and therefore must be accepted as true. The fact that Ka Wai has requested Ah Ting to sell the title to House A to her contradicts D1’s allegation that House A has been in adverse possession of Sun Kwai’s family since about 1978.

63.  Ps are the registered owner of the Land, and House A is part of the Land. D1’s claim for a possessory title to House A has failed. D2 has not put forward any defence to Ps’ claim. In the circumstances, Ps’ claim for vacant possession of House A against both D1 and D2 must be allowed.

64.  Mr Law and Mr Cheung have agreed that in the event that Ps succeed in these proceedings, D1 would be given 42 days to deliver vacant possession of House A to Ps. I would allow D1 to have 42 days to find alternative accommodation.

65.  Ps also claim mesne profits. Mr Law and Mr Cheung have also agreed that the mesne profits payable by D1 up to the date of this judgment should be HK$83,571, and the pre-judgment interest on the said mesne profits should be calculated from 24 July 2018 until the date of this judgment at the rate of 4% per annum, and thereafter at the judgment rate until full payment of the same. There would be further mesne profits at the rate of HK$57 per day until the delivery of vacant possession of House A by D1 to Ps.

G.  DISPOSITION

66.  I allow Ps’ claim and dismiss D1’s counterclaim. I order that both D1 and D2 do deliver vacant possession of House A to Ps within 42 days. There be liberty to apply. I further order that D1 do pay the mesne profits to Ps as stipulated in the above.

67.  Counsel have agreed that costs should follow the event. I order that costs of these proceedings (including all costs reserved) be paid by D1 to Ps, with a certificate for counsel. Those costs are to be taxed if not agreed.

68.  Lastly, it remains for me to thank counsel for the assistance provided to the court.