Yiu Ching Kum and Another v. Yiu Ho Wing

HCA 1654/2020

[2025] HKCFI 4053

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1654 OF 2020

____________

(By Counterclaim)

____________

_______________

J U D G M E N T

_______________

A. INTRODUCTION

1.This case is a dispute between the Plaintiffs in the original claim (“P1” and “P2” respectively, and “Ps” collectively) and the Defendant in the original claim (“D”), three of nine siblings in the Yiu family (“the 9 Siblings”), concerning the beneficial ownership of 3,000 shares (“Shares”) in a company known as China Ease Investment Limited (“China Ease”).

2.In these proceedings, D was legally represented at all times until 15 May 2025, when D filed a notice to act in person.  Thereafter, D has been acting in person in these proceedings.  In this trial, Mr Martin Kok represents Ps and China Ease, and D is acting in person.

3.At the beginning of the trial, I reminded D that the documents signed by his solicitors at the times while he was legally represented would still be effective and binding upon him.  D understood and agreed.

B.  BACKGROUND

4.The following background facts are gleaned from the List of Undisputed Facts dated 4 March 2025 signed by the parties’ respective legal representatives (“List of Undisputed Facts”), the documentary evidence, and the matters in respect of which no disagreement was raised by the parties in the trial.

5.The 9 Siblings were born in a Chiu Chow family.  Mr Yiu Pang Wai was the late father (“Father”) and Ms Lam Choi Wan was the late mother (“Mother”).  In the order of seniority, the 9 Siblings are:

(1)  Ms Yiu Ching Kum, Monita (ie P1)

(2)  Ms Yiu Ching King, Lucia (“Lucia”)

(3)  Ms Yiu Ching Kwan, Melissa (ie P2)

(4)  Ms Yiu Ching Lan, Vicky

(5)  Ms Yiu Ching Heung, Anita

(6)  Ms Yiu Ching Hing, Esther

(7)  Ms Yiu Ching Man, Amanda

(8)  Mr Yiu Ho Ming, Hermes (“Hermes”)

(9)  Mr Yiu Ho Wing, Terry (ie D)

6.Father and his brother Mr Yiu Yan Che (“YYC”) had carried on a family business together.  The family business run by a Hong Kong-incorporated company called Chung Tung Investment Limited (“Chung Tung”) and its group of companies (“Chung Tung Group”), in which Father had 50% interest.  The other 50% of Chung Tung Group was owned by YYC.[1]

7.China Ease was incorporated on 15 July 1998.  It was acquired by the Yiu’s family in or around August 1998 for Father’s estate planning and business separation with YYC.[2]

8.In August 1998, while Father was in Canada, Father was diagnosed with advanced liver cancer.

9.On or about 12 August 1998, Father prepared a written document in Chinese (“the Chinese Document”) in Canada[3], the contents of which are as follows:

“立遺產人 姚鵬偉 現將中東之股份50%設立委托公司控股，現分配如下 浩銘22.5%，浩榮22.5%， 5%保存基金， 暫時由靜琴及靜君二人做臨時處理及鑒管人，日後若有人要出賣股權，須二個月書面通知，自己人、自己股東有優先權,每年結帳公司有賺，可那百份之10%或百份之20%，到時開會商議而定；暫定分配爲下 七位女兒每人10% 浩銘25%, 浩榮25%，我本人20%，賽雲20%，如若七位女兒之中其中有人去世便無可分配，如若我先去世，由賽雲成受,如若賽雲去世，由我成受再那20%出來做基金 內中有未完善之處現在考慮之中最急要找律師相量及聽取欣智之意見,盡快進行

一九九八年八月十二日姚鵬偉立”

10.In mid-August 1998, Father returned to Hong Kong.

11.On 31 August 1998[4]:

(1)  D was allotted 3,000 shares of China Ease and was appointed as a director.

(2)  Hermes was also allotted 2,999 shares of China Ease and appointed as a director.  In or about the same time, 1 share of China Ease was transferred to Hermes.

(3)  P1 was also 3,999 shares of China Ease and appointed as a director.  In or about the same time, 1 share of China Ease was transferred to P2.

12.On or about 14 September 1998, China Ease and YYC’s company, Tokyo Holdings Limited, were each allotted 400,000 shares of Chung Tung.  On or about 28 September 1998, Father transferred his 100,000 shares of Chung Tung to China Ease.  After the transfer, China Ease, YYC and Tokyo Holdings Limited held 500,000 shares, 100,000 shares and 400,000 shares in Chung Tung respectively.[5]

13.Father passed away on 29 September 1998, without a Will.[6]

14.On 30 September 1998, Mother, the 9 Siblings and YYC (YYC representing Chung Tung) attended the solicitor (Mr KM Lai in Messrs. KM Lai & Li (“KMLL”))’s office and entered into a Deed of Family Arrangement (“the DFA”), in the presence of a witness Mr Tang Fung Wo (“Tang”), a solicitor of HKSAR.  The DFA provides, inter alia, that D and Hermes each holds 3,000 shares of China Ease on trust for the benefit of P1 and P2 in equal shares (Clause 1(ii) and (iii) of the DFA), and that Hermes and D shall forthwith execute all documents necessary for the transfer of the beneficial interests of the shares of China Ease so as to give effect to Clause 1(ii) and (iii) of the DFA (Clause 1(iv) of the DFA).[7]

15.Mother passed away in 2003.

16.In around 2004, disputes between the 9 Siblings on the one hand and YYC on the other hand arose. Those disputes were settled in 2007 by the Deed of Settlement described in the paragraph below.

17.The 9 Siblings, China Ease, Tokyo Holdings Limited, YYC and YYC’s family members entered into the Deed of Settlement dated 26 March 2007 (“the Deed of Settlement”), by Clause 3 of which the 9 Siblings and China Ease agreed to sell all the shares, interests, properties, assets and benefits that they have jointly or severally, directly or indirectly, legal or beneficially, in the Chung Tung Group and all properties, shares and interests of Chung Tung to YYC at the consideration of, amongst other things, a sum of HK$115,000,000 (“the Settlement Sum”), to be paid in instalments by YYC to China Ease.[8]

18.Part of the Settlement Sum, ie HK$93,067,533.85 (“YYC’s Payment to China Ease”), was paid by YYC by cheques to China Ease.

19.The remaining balance of the Settlement Sum was originally paid to Messrs.  Edward Lau, Wong & Lou (“ELWL”), solicitors acting for the 9 Siblings and China Estate, on 30 July 2010.  By an Order dated 10 July 2020 made in HCMP 1047/2018, ELWL paid the said sum together with interest accrued thereon (“the ELWL Sum”) into Court on 16 July 2020 subject to the determination of the dispute as to the entitlement to the ELWL Sum between China Ease and D’s siblings on the one hand, and D on the other hand.  By an Order dated 25 January 2021 in HCMP 1047/2018, the ELWL Sum was paid to Lennon & Lawyers (“LL”, the solicitors for China Ease and D’s 8 siblings in HCMP 1047/2018, and the solicitors acting for Ps and China Ease in this case), upon the undertaking given by LL that the ELWL Sum would not be dealt with or disposed of pending the outcome of the proceedings in this action, HCMP 1469/2019, and HCA 1654/2020, or a further order made by the Court.  

20.D received the following sums, as received from YYC and distributed by P2, as a result of the Deed of Settlement[9]:

(1)  HK$1 million in or about May 2007;

(2)  HK$3 million in or about August 2008.

21.In around late 2020, Hermes executed the transfer documents to transfer his 3,000 shares in China Ease to P1 and P2 in equal shares.

C.  THE PARTIES’ RESPECTIVE CASES AND THE ISSUES

C1.  Ps’ case

22.Ps’ case is based upon the DFA.  According to Ps:

(1)  As part of Father’s estate planning exercise, Father created an express trust over the shares of China Ease, by which D was to hold the shares on trust for the benefit of Ps (in equal shares).  Father instructed KMLL to draft the DFA in accordance with his instructions.

(2)  The DFA was signed by the 9 Siblings (including D), Mother, and YYC (on behalf of Chung Tung).  As a person of full age and understanding, D is bound by the terms of the DFA which he had signed.

(3)  As beneficial owners of the 3,000 shares of China Ease held on trust by D, Ps are entitled to call for the transfer of the shares to them.

23.Ps seek the following reliefs:

(1)  a declaration that the 3,000 shares of China Ease registered in D’s name are held by D on trust for Ps in equal shares pursuant to the DFA;

(2)  an order that D shall execute (a) the Instrument of Transfer and (b) the Brought and Sold Notes for the transfer of the 3,000 shares of China Ease to Ps in equal share, ie 1,500 shares to P1, and 1,500 shares to P2.

C2.  D’s case

24.D contends that in the Chinese Document, Father manifested his intention to create a trust (“the Trust”) in respect of his 50% interest in the whole Chung Tung Group by setting up a company to hold his 50% interest in the Chung Tung Group and disturbed them as to 22.5% to D, as to 22.5% to Hermes, and as to 5% as reserve fund.  According to D’s pleaded case, “Chung Tung Group” is referrable to those companies set out in the 1^st Schedule to the Deed of Settlement entered on 26 March 2007 (“the 1^st Schedule Companies”).[10]

25.As to the DFA, D’s case is that: 

(1)  The DFA has not been stamped and therefore cannot be admissible evidence in these proceedings by the operation of s.15 of the Stamp Duty Ordinance (“SDO”).

(2)  The DFA is not binding upon D by reason of the following:

(a)  the following misrepresentations (“the Misrepresentations”) made by P2 to D on 30 September 1998 prior to the execution of the DFA:[11]

(i)    there were over 20 companies that required urgent estate duty arrangement and arrangement with YYC;

(ii)   it was essential that the DFA was executed or there would be drastic tax consequences;

(iii)  Father was a guarantor of the banking facilities granted to the family business and if the DFA was not executed, the banks would call loans when the banks learned that Father had passed away;

(iv)  D had no choice but to sign the DFA;

(b)  the non-disclosure of the Chinese Document by P2 before D signed the DFA (“the Non-Disclosure”); and

(c)  as shown in the particulars given in §32 of RRAD&C, the DFA had not been followed by a long period of delay or inactivity on the part of all parties and it could be inferred that the parties had mutually agreed to abandon the DFA.

26.D counterclaims for the following:

(1)  As against China Ease (the 1^st Defendant in D’s counterclaim) and P2 (the 2^nd Defendant in D’s counterclaim):

(a)  As a result of the Trust in favour of D created by the Chinese Document, D should be entitled to have 45% of the YYC’s Payment to China Ease.  Taking into account the HK$4 million already distributed by P2 to D, P2 is liable to D for HK$37,880,390.23.

(b)  D seeks a declaration that China Ease and/or P2 is holding that sum and all proceeds and fruits thereof on trust for D, and all consequential remedies as a result.

(2)  As against China Ease:

(a)  As a result of the Trust in favour of D created by the Chinese Document, D should be entitled to have the ELWL Sum, or 45% of the ELWL Sum.

(b)  D seeks a declaration that China Ease is the ELWL Sum, or 45% of the Sum on trust for D, and all consequential remedies as a result.

27.In reply, Ps raises the following points:

(1)  By the long absence or delay of complaint by D and/or receipt of his share of distributions under the Deed of Settlement, D has elected to affirm and/or is estopped from denying the binding effect of the DFA and the Deed of Settlement.

(2)  D is barred from rescission given the substantial performance of the DFA and the Deed of Settlement.

C3.  The agreed issues

28.It is trite that issues are defined by pleadings.^[12]  D has tried to slip in some unpleaded issues in his submissions.  This is not permissible.  The issues to be resolved in this trial are those set out in the pleadings, no more and no less.  While D was still legally represented, the parties’ respective legal representatives have signed a List of Agreed Issues dated 4 March 2025.  There has not been any amendment to any pleadings subsequent to the signing of this list.  In my view, the issues in this trial are correctly set out in that list.  Those issues are as follows:

(1)  Whether the DFA can be received in evidence, taking into account of s.15 of the SDO;

(2)  Whether the DFA is valid, binding and enforceable against D, or whether D is entitled to rescind the DFA by reason of (as contended by D) (a) the Misrepresentations made by P2; and/or (b) the Non-Disclosure on the part of P2;

(3)  Whether the DFA is valid, binding and enforceable against D notwithstanding the delay or inactivity on the part of the relevant parties as pleaded by the D in §32 of RRAD&C;

(4)  Whether the Chinese Document has any legal effect (and if the answer is yes, what would be such legal effect) and thus is enforceable amongst the relevant parties? If yes, whether it has been subsequently superseded by the parties' agreements as evidenced in the DFA;

(5)  There are two sub-issues under issue 5:

(a)  Whether (as contended by Ps) by the long absence or delay of complaint by D and/or the receipt of his share of the distributions under the Deed of Settlement, D has elected to affirm and/or is estopped from denying, the binding effect of the DFA and the Deed of Settlement; and

(b)  Whether (as contended by Ps) D is barred from rescission given the substantial performance of the DFA and the Deed of Settlement;

(6)  Whether D was in breach of the terms of the DFA and/or his duties as trustee for Ps in failing to transfer back the 3,000 shares of China Ease upon request;

(7)  Whether Ps had held the sum of HK$41,880,390.23 on trust for D and if so, whether they were in breach of trust as pleaded in the RRAD&C;

(8)  Whether Ps are liable to account to D the sum of HK$37,880,390.23 as pleaded in the RRAD&C;

(9)  Whether D is entitled to any part of the ELWL Sum (as defined in §53 of the RRAD&C), if so, what portion or quantum thereof?

D.  THE WITNESSES

29.P1 and P2, and Lucia and Hermes, have given evidence in support of Ps’ case.  D has given evidence in support of his case.

30.Since D is acting in person, at the beginning of the trial, I explained to D that if he alleges that any matter said by a witness called by Ps is untrue or not correct, he has the obligation to point out that matter to the witness while he is cross-examining the witness, so that the witness would have an opportunity to respond to his allegation.  D understood the explanation given.

31.The principles concerning assessment of evidence given by witnesses are trite.  The Court would take into account the following[13]:

(1)  Whether the party’s case is inherently plausible or implausible;

(2)  Whether the party’s case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable;

(3)  Where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests.  This is relevant to the assessment; and

(4)  the demeanour of the witnesses.

32.The Court would approach the self-serving statements made by a witness with circumspection, but would give considerable weight to the statements made by him which are against his interest.  See Wong Tak Yue v Kung Kwok Wai & Another (No 2)^[14]:

Per Li CJ^[15]:

“Where the occupier has made self-serving statements as to what was his intention, whether during the period of occupation or when challenged in legal proceedings, the courts should approach them with some scepticism. The courts would scrutinize the circumstances in which they were made and would give them such weight if any as they may deserve. Conversely, where the occupier has made statements as to what was his intention and such statements are against his interest, the courts would usually accord to them considerable weight.” (Emphasis added)

Per Litton PJ^[16]:

“Here, the appellant has come nowhere near establishing adverse possession. He unequivocally declared that at all times he was ready willing and able to pay rent to the owners, and did not do so only because no one came along on behalf of the landlords to collect rent. Whether his acts and declarations in the course of the 1980 court proceedings amounted to an acknowledgment of the owners’ title in terms of s.23(1), or fell short of that, the fact remains that he had no intention to exclude the owners.” (Emphasis added)

Per Ching PJ^[17]:

“I need only add that there can be no better evidence of the intention of an occupier of land than his express declaration against his own interest.” (Emphasis added)

The aforesaid principle is not limited to adverse possession cases but has a general application.  See Leung Siu Man and Ors v Leung Yiu Tai[18], and 章晶歷 v 吳聯模 and Anor^[19].

33.With the aforesaid principles in mind, having seen and heard the evidence given by the witnesses, I am of the view that P1, P2, Lucia and Hermes are honest and reliable witnesses.  Their evidence is consistent with the documents and inherently probable, and is clear and unshaken after cross-examination.

34.In particular, I note that Hermes and Lucia have no claim for any interest in the shares of China Ease.  Further, on the face of the Chinese Document and the DFA, Hermes and D are in the same position.  However, Hermes has given evidence in support of Ps’ case.  Hermes’ position in support of Ps’ case (ie the Chinese Document has not created any trust in favour of him, and the DFA is valid and confirming that he is only holding 3,000 shares in China Ease on trust for P) is indeed against his own interest. With all these in mind, I am of the view that considerable weight should be given to their evidence.

35.In his final submissions, D submits that it is misleading to say that Hermes has given evidence against his own interests.  According to D, Hermes has received substantial interests, which aligned with Ps’ interests, including HK$2 million special bonuses in 2007 and another HK$2 million in 2010.  Hermes also enjoyed exclusive use of a valuable property originally in Father’s name. Melissa also admitted that she was instructed to specially look after Hermes. In my view, what D is trying to say is that Hermes’s evidence cannot be believed, for Ps have given substantial interests to Hermes, and hence Hermes chose to give evidence in support of Ps’ case.  The fundamental flaw in D’s submissions is that he has not put all these points to Hermes during cross-examination.  It would not be fair to Hermes for D to take all these points against Hermes in final submissions, without giving any opportunity to Hermes to respond to these points in cross-examination.  In my judgment, D is not entitled to make these points in his final submissions.

36.On the other hand, I am of the view that D is an untruthful and unreliable witness.  His evidence is contradicted by the documents on various material aspects and is inherently improbable on the crucial issues in this case.  Save and except the matters undisputed by Ps, and the admissions made by D against his own interest, I refuse to accept D’s evidence.  As to the admissions made by D against his own interest, I attach weight to those admissions.

E.  THE ISSUES

E1.  Issue 1 – whether the DFA can be regarded as admissible evidence?

37.S.15 of the SDO provides:

“(1) Subject to subsection (1A) and section 15A, no instrument chargeable with stamp duty shall be received in evidence in any proceedings whatsoever except —

(a) criminal proceedings;

(b) civil proceedings by the Collector to recover stamp duty or any penalty payable under this Ordinance,

or be available for any other purpose whatsoever, unless such instrument is duly stamped.

……” (Emphasis added)

38.Under Head 2(3) of the SDO, stamp duty is chargeable for a “TRANSFER operating as a voluntary disposition inter vivos or made for the purpose of effectuating a transaction whereby the beneficial interest in Hong Kong stock passes otherwise than on sale and purchase, including a foreclose order.” (Emphasis added)

39.There is no dispute that the DFA is an unstamped document.

E1.1  DFA not chargeable with Stamp Duty

40.Mr Kot’s primary position is that the DFA does not have the effect of passing any beneficial interest in the shares in China Ease, and hence is not an instrument chargeable with stamp duty.  Thus, the DFA would not be prevented by s.15 of the SDO from being admissible evidence in these proceedings.

41.Mr Kot submits that prior to Father’s death, with the aim of doing some estate planning and business arrangement, Father had created an express trust over the shares in China Ease, with D holding the 3,000 shares on trust for Ps’ benefit.  Having considered the evidence, I accept Mr Kot’s submission.

42.D submits that Father did not have any legal title nor beneficial interest in the shares of China Ease at any time, and hence could not create any trust over the shares of China Ease.  With respect, this submission must be rejected in the light of the admission made by D under cross-examination.  During cross-examination, D admitted that China Ease was acquired by Father for estate planning purpose:

“問： ... 總之我向你指出喇，其實呢樣嘢不應該有爭議，向你指出就係，其實爸爸買呢一份--呢個China Ease返嚟係為咗安排佢自己嘅遺產，呢樣嘢唔係YYC做嘅，因為都唔係講YYC 嘅資產，你同意定係唔同意？

答： 同意。

問： 同意吖嘛, 係咪？

答： 唔。”[20] (Emphasis added)

I attach weight to D’s admission. D’s submission is contradicted by his own admission.  

43.Both P2 and Hermes have given evidence that on 29 August 1998, YYC informed P2, Hermes, and D that (a) KMLL was preparing the document, later known as the DFA, in accordance with Father’s instructions, and (b) each of them would hold the China Ease’s shares allocated/transferred to them on trust, with the beneficial interest to be designated by Father in accordance with that document.  The evidence given by P2 and Hermes on this point was not challenged by D during cross-examination. I accept P2’s and Hermes’ evidence.

44.For the creation of an express trust, the creation of the trust may be inferred from the acts of the settlor or the circumstances of the case.  It is not even necessary that the creator of the trust should be aware that it is a trust that he was creating.  All that is required is that he has sufficient clear intention to create a state of affairs which requires a trust for its implementation or to impose an obligation of the kind which in law is regarded as trust obligation.[21] Further, for an express trust, it is not necessary to pinpoint a specific moment of declaration of trust.  The question is whether in all the circumstances, there was an objective intention to create a trust.[22]

45.Based upon the evidence accepted by the Court, I find that prior to Father’s death, Father did create an express trust on the shares of China Ease as part of his estate planning.  At the time when the 3,000 shares of China Shares were allotted to D (ie 31 August 1998) and thereafter, D was and is holding the 3,000 shares on trust for the benefit of the members of the Yiu family.

46.I agree with Mr Kot that the DFA is not a document under which any beneficial interest in the shares of China Ease is passed, and hence the DFA is not an instrument chargeable with stamp duty.  As a result, the DFA would not be prevented by s.15 of the SDO from being admissible evidence in these proceedings.

E1.2  Secondary evidence on DFA

47.As a matter of law, the Court would accept a party’s admission concerning an unstamped document.[23] The Court would also accept secondary evidence regarding an unstamped document (including its terms), regardless of any stamp duty objection.[24]

48.Mr Kot submits that even if the DFA itself cannot be received as evidence in these proceedings, the material terms of the DFA have been admitted by D in §8 of the List of Undisputed Facts.[25] The undisputed facts as set out in that paragraph can still be the basis of Ps’ case.  I agree and accept Mr Kot’s submission.

49.Mr Kot further submits (and I agree) that each of P1, P2, and Hermes has given secondary evidence as to the relevant terms of the DFA, including specifically Clauses 1(i) to (iii) thereof.[26] It is also D’s own evidence that the DFA was explained and interpreted to him before he signed it[27].  In his own evidence, D admitted that it is stipulated in Clause 1(iii) of the DFA that D holds the 3,000 shares of China Ease on trust for Ps in equal shares.  The relevant exchanges in D’s evidence is as follows[28]:

“官： 第1 大段喇，III嗰度呢，咁因為呢份文件呢，當日簽嘅時候，鄧律師有翻譯過畀簽署各方聽㗎嘛，你在場都聽到鄧律講咗嘅嘢喇，咁呢個第1 段III嗰度，如果用中文講出嚟嗰個意思就係China Ease 裡面有三千股，現在就係姚浩榮係持有緊嘅，咁而姚浩榮就只係以信託人嘅身分呢，代姚靜琴同埋姚靜君呢，係佢哋兩位係一人一半咁樣嚟持有嘅，呢個就係III嘅意思喇。

答： 係。

官：咁當時你一聽到鄧律師咁樣講，但係你認為嗰三千股其實係你㗎喎，咁你聽到鄧律師咁講。按照常理，你應該立即提出反對㗎，點解你冇咁做呢，反而仲簽咗呢份文件呢？

答：因為我聽唔明囉，我哋當時都唔知點樣處理呢啲咁嘅嘢，我哋個目標就係要配合公司，內容...

官：鄧律師...

答：鄧律師解釋嘅嘢我亦都唔會明嘅。

官：鄧律師係講--翻譯做中文嘅，係咪？

答：係呀，但係--但係佢講嘅嘢，當時我哋嗰個環境之下呢，係好憂傷，都--你要做乜，我就做乜喇。

官：好，好。

答：要配合公--要配合公司安排，唔好影響到...

官：得。

答： ... YYC Uncle 嘅生意，唔好畀人追call loan，我哋就係呢個--第一個目的，你要我做乜我都做喇，當時，解釋任何嘢呢，我哋都冇辦--我亦都冇辦法改變，原來呢啲文件已經準備咗喺度。” (Emphasis added)

E1.3 Court of Appeal’s decisions on the point

50.Mr Kot further submits that there are binding Court of Appeal authorities which provide that stamp duty points are by convention not taken at the bar of the Court.  Mr Kot has referred me to the following Court of Appeal’s decisions:

(1)  In Lam Chi v Yip Ching[29], Cons JA said:

“At the hearing itself, the solicitor who then represented the defendant first put the plaintiff to strict proof of his right to demand rent. He followed by making two points, that the two tenancy agreements had not been stamped and were therefore not admissible by reason of s 15(1) of the Stamp Duty Ordinance (Cap 117) ……

We find it surprising that the point on the Stamp Duty Ordinance was taken in this way.  We had always understood that by convention, stamp points were not taken at the bar of the court.  ……”

(2)  In Chow Sau Hei v. Ho Keung Yuen and Anor[30], Cheung said:

“13.12 The Judge criticized Chow in his judgment for his approach towards the Trust Deed in that he was seeking to exclude the evidence in order to run a case that he knew was not true. Mr Wong challenged the Judge’s view on this issue. In my view while the Judge may be overly robust when he attributed the approach to Chow personally, it is not difficult to see why the Judge had taken an unfavourable view on this aspect of Chow’s case. It is plain that Chow originally referred to the Trust Deed in order to refute Ho’s argument that it was his wife who was holding the three shops on trust for Chow. But this would no doubt at the same time hinder his case that Ho had cheated him by siphoning off the three shops. It was a double-edged sword which cut both ways. In order to persist with the allegation of Ho siphoning off the three shops, the only way out is to abandon the reliance on the Trust Deed. Notwithstanding the weight of the decision of this Court in Lam Chi v Yip Ching [1982] HKC 623 (which has not been challenged in any subsequent Court of Appeal decision and is binding on the first instance judge) that stamp duty points are by convention not taken at the bar of the court, reliance was made of the English Court of Appeal decision of McGuane v Welch [2008] All ER (D) 158 which upheld the view that secondary evidence of unstamped documents is inadmissible. Reliance was also placed on an academic article by the late Professor Willoughby (‘Professional Conduct and Stamp Objections’ (1981) 11 HKLJ 361) to the effect that because of the difference in wording in the Hong Kong and English legislations, it is open to counsel to take objections to admitting unstamped document as evidence in Hong Kong.

13.13 It is not necessary for me to decide in this judgment the correctness of the English approach. Even at this level, Lam Chi is binding on this Court unless it is shown to be plainly wrong. ……” (Emphasis added)

51.In the trial, I pointed out to Mr Kot, and Mr Kot accepted that there is an inherent tension between these Court of Appeal’s decisions and the plain meaning of s.15(1) of the SDO.  However, relying upon SJ v Cheng Kam Mun[31], Mr Kot submits that I am still bound by the two Court of Appeal’s decisions, notwithstanding my view that these decisions are not in line with the plain meaning of s.15(1) of the SDO.  In SJ v Cheng Kam Mun, Anderson Chow J (as he then was) said:

“29. [counsel] has referred me to the decision of Deputy High Court Judge Lugar-Mawson sitting at the first instance in Wong Kwai On v Leung Wing Cheong [1999] 2 HKLRD 779, where the learned judge apparently did not follow an earlier decision of the Court of Appeal in Wong Wai Chi Ann v Cheung Kwok Fung Wilson [1996] 3 HKC 287 on the ground the decision was at variance with a binding statutory rule. With great respect to the learned judge, I do not consider this to be a permissible route for a judge at first instance to take. In my view, if it is considered that the decision of the Court of Appeal in the Effiscient case is incorrect, the only way to achieve a reversal of that decision would be take the matter to the Court of Appeal (or the Court of Final Appeal) or amend the rules.”

52.As a matter of stare decisis, I have to accept Mr Kot’s point. However, I prefer to base upon the analysis as set out in subsections E1.1 and E1.2 above to reach my conclusion on issue 1.  In my view, the analysis in subsections E1.1 and E1.2 above would be sufficient for disposing issue 1.

E1.4 Conclusion on Issue 1

53.For the reasons above, I conclude that the DFA can be received as evidence in these proceedings.  Further or alternatively, Ps may also rely upon the secondary evidence as set out in subsection E1.2 above as the basis of their claim.

E2.  Issue 2 – whether D’s consent to the DFA is vitiated by the Misrepresentations and Non-Disclosure alleged by D?

54.In Ming Shiu Chung & Others v Ming Shiu Sum & Others^[32], Ribeiro PJ said

“84. …… Reliance is universally placed on signatures appended to documents by persons of full age and understanding as signifying the signatory’s assent or adherence to what that document states. Where such a person has signed a document which purports to have legal effect, the law has never regarded it as enough to show that he signed without knowing its contents for the document to be disavowed. It is an everyday occurrence that people sign documents without reading the small (or even the large) print and therefore sign without actually knowing the terms (or all the terms) of the document signed. But they are held to the documents which they have chosen to sign unless there is shown to be a recognized legal basis for concluding that their apparent consent has been in some way vitiated or that reliance on that document by some other person falls into some category of unconscionable conduct justifying relief in equity.” (Emphasis added)

55.It is an indisputable fact that D signed the DFA in KMLL’s office on 30 September 1998.  Accordingly, unless D can establish a recognized legal basis for concluding that the consent to the DFA given by him by signing the deed has been vitiated on a recognized legal basis, D is bound by the DFA.

56.D says that he is not bound by the DFA because of (a) the Misrepresentations, and/or (b) the Non-Disclosure.  The burden of proving these allegations is on D.

57.I find that D’s case on the Misrepresentations is untrue.

(1)  It is indisputable that P2 was all along based in Belgium and had no involvement with the business of Chung Tung Group at all.  It is inherently improbable that P2 would made the alleged representations to D on 30 September 1998.

(2)  Under cross-examination, D said that the representations were made by P2 to him in the meeting in KMLL’s office, after Tang explaining the DFA.  It is contrary to common sense that in those circumstances, in the presence of Tang, P2 would make the alleged representations to D.

(3)  In response to the enquiries made by the Court, D said that prior to filing his defence in 2021, D did not have any record of the representations made by P2 to him on 30 September 1998.  When he pleaded those representations in his defence in 2021, he was solely relying upon his memory.  Plainly, it is inherently improbable that after around 23 years, in the absence of any record, D could clearly remember what P2 had told him in the meeting in KMLL’s office on 30 September 1998.

(4)  During cross-examination, D was referred to a letter issued by him to P2 on 3 April 2008, in which D only stated that the “[the DFA] was signed under the misunderstanding and misrepresentation that there was no will/trust document from our late father and that it was prepared for tax planning purposes”.  D was cross-examined as to why D’s allegation of misrepresentation were subsequently expanded to the alleged Misrepresentations in §17(a) to (d) of RRAD&C in 2021.  In response, D said “我自己寫得唔夠專業，我喺呢封信入面，我冇辦法列晒所有嘢，當我將成個故事交畀律師行呢，佢就幫我咁樣去組織、陳述出嚟喇”.  This answer must be untrue.  If what had been said by P2 to him on 30 September 1998 was vividly in his mind after decades, D should have no difficulties in putting down all the alleged representations in this letter.

(5)  After the execution of the DFA and before filing his defence in these proceedings in 2021, for around 23 years, D had never sought to challenge the DFA on the ground of misrepresentation.  There is no dispute that at least from 2008 onwards, D had engaged Mayer Brown as his legal representatives.  However, there was still no challenge against the DFA on the ground of misrepresentation until 2021.[33] If there is any truth in the allegation based upon the Misrepresentations, there is no reason why D did not challenge the DFA on the ground of misrepresentation at a time much earlier than 2021.

58.I also find that Ds’ case on the Non-Disclosure is untrue.  Under cross-examination, D accepted that P2 did pass a copy of the Chinese Document to him two to three days after Father’s death.  If P2 did attempt to conceal the Chinese Documents from D, P2 would not have passed a copy of the same to D only one or two days after the signing of the DFA.  Further, if the DFA really would affect D’s decision to sign the DFA, after seeing the copy of the Chinese Document just one or two days after the execution of the DFA, naturally D would seek to challenge the DFA immediately.  However, the fact is there was no challenge by D against the DFA on the ground of the Non-Disclosure until 2021.

59.On the issue of the alleged Non-Disclosure, P2’s evidence is that prior to the execution of the DFA, on or around 20 August 1998, she already showed a copy of the Chinese Document to the siblings (including D) at the family flat at Mei Fat Building in Tai Po.  P2’s evidence is supported by P1.  Ps’ evidence on this aspect is not challenged by D under cross-examination.  I accept Ps’ evidence.

60.I conclude that the DFA is not vitiated by the Misrepresentations and/or Non-Disclosure alleged by D.  The DFA is valid, binding upon D and can be enforced against D.

E3.  Issue 3 – any mutual abandonment of the DFA?

61.In §32 of RRAD&C, it is pleaded:

“32. Further or in the further alternative, even if, which is denied, the [DFA] were valid and binding on [D], the [DFA] had not been followed by a long period of delay or inactivity on the part of all parties and it could be inferred that the parties had mutually agreed to abandon the [DFA].

Particulars of delay or inactivity

a) None of the parties to the [DFA] had ever requested [D] to sign any document to transfer the beneficial interests of the shares of China Ease in accordance with clause 1 (iv) of the [DFA].

b) It was only after [D] had commenced HCMP 960 of 2017 on 25 April 2017 for inspection of China Ease’s documents that [Ps] for the first time requested [D] to transfer [D]’s shares to them through Lennon & Lawyers' letter dated 12 September 2017, which was almost 19 years after the [DFA] was signed. Further, it was only in 2019 that [Ps] first commenced legal proceedings (in HCA 1438 of 2019) against [D] for a declaration that the 3,000 shares of China Ease registered in [D]’s name are allegedly held by [D] on trust for [Ps].

c) Yiu Ho Ming Hermes has not transferred his 3,000 shares of China Ease to [Ps] in accordance with clause l(iv) of the [DFA] and [D] was only aware on or about 24 November 2020 that Yiu Ho Ming Hermes has allegedly signed bought and transfer notes and instruments of transfer in relation to the transfer.

d) [D] has never been paid 10% of the profits of China Ease in accordance with clause 2(i) of the [DFA].

e) Mother passed away in 2003, but to [D]’s knowledge, no moneys have been returned to China Ease or that any profits of China Ease have been retained as reserve fund in accordance with clause 2(ii) of the Deed.

f) Despite clause 3(ii) of the Deed, P1 and Yiu Ching King Lucia, who are not shareholders of China Ease, have been appointed as directors of China Ease since 14 October 2016.

g) The Articles of Association of China Ease have not been amended in accordance with clause 3(iii) of the [DFA].

h) Despite Clause 4 of the [DFA], no application has been made for grant of letters of administration of Father's estate.

i) The 1^st Property (as defined in the [DFA]) has not been assigned to Chung Tung in accordance with clause 5 of the [DFA].

j) The 2^nd Property (as defined in the [DFA]) has not been assigned to China Ease in accordance with clause 6 of the [DFA] and the 2^nd Property has been and still is registered in the name of Father as owner in the records of the Land Registry.

k)  The residuary estate of Father has not been distributed in accordance with clause 7 of the [DFA].”

62.As to the law of abandonment, the principles have been summarized by Ms Lesley Anderson QC (sitting as a Deputy High Court Judge) in Blindley Health Investments Ltd v Mr Peter Bass and Ors[34] as follows:

(1)  The law of abandonment is based in the law of contract and so the question is whether, on an objective assessment of all the circumstances, including what was said or not said, written or not written, done or not done, an offer exists by one party to abandon the contract, which is accepted by the offeree, and which acceptance is communicated to the offeror.

(2)  Save in exceptional circumstances, silence and inactivity is not sufficient to found a contract of abandonment.

(3)  Although the contractual elements may be inferred from conduct, such inference can only be drawn where it is quite plain that it would be the correct inference.

63.In my view, in the circumstances of this case, there is no basis to say that Ps have abandoned their rights under the DFA.  Under the DFA, it is stipulated that D and Hermes would hold the shares of China Ease on trust for the benefit of Ps.[35] D and Hermes would continue to owe duties to Ps as trustees, and Ps (as beneficiaries of the bare trusts) are entitled to call for conveyance of the legal estate from D and Hermes at any time, and D and Hermes (as bare trustees) must comply.[36]  In my view, the matters pleaded in §32 of RRAD&C would not give rise to the conclusion that Ps have abandoned their rights vis-à-vis D.

64.Further, on 12 September 2017, Ps through their solicitors wrote to D, referring to the DFA and requiring D to transfer the 3,000 shares of China Ease to Ps.  Under cross-examination, D agreed that by that letter, Ps were enforcing their rights in the DFA, as opposed to abandoning those rights.

65.In my judgment, there is no merit in the abandonment raised by D.  Issue 3 is decided in favour of Ps.

E4.  Issue 4 – the Chinese Document

66.In my view, the Chinese Document is not a document having any legal effect.  D certainly cannot rely upon the same as the basis of the Trust alleged by him.

67.It is plain that the Chinese Document does not show that Father had a clear intention to create the Trust as alleged by D.

(1)  It is trite that to create an express trust, three certainties must be present, namely (a) certainty of intention (or words), (b) certainty of subject matter, and (c) certainty of objects.[37]

(2)  In order to satisfy the certainty of intention, what has been said by Father in the Chinese Document must evince a clear intention which admits of no other interpretation.[38]

(3)  In my view, it is plain that there is no such clear intention in the Chinese Document.  In the Chinese Document, Father said:

“……內中有未完善之處現在考慮之中最急要找律師相量及聽取欣智之意見，盡快進行” (Emphasis added)

(4)  D submits that in this sentence, Father was only saying that as to the profit distributions and the matter concerning the fund (基金), Father was still considering the details.  However, as to the gift of the interest in the Chung Tung Group given to D, Father had made a final decision.  I disagree.  In my view, reading the Chinese Document as a whole, it is plain that the words “內中” mean all the matters in the Chinese Documents.  It is plain that everything expressed in the Chinese Document was Father’s tentative view only.

(5)  In my judgment, at the time of the Chinese Document, Father did not make a final decision as to what should be done for his estate planning and in what way that goal should be achieved.  He wanted to seek legal advice from lawyer(s) and to have some discussion with YYC.

68.It is also plain that the subject matter in the Chinese Document is not the interest in the whole Chung Tung Group as contended by D.  The subject matter therein is only the shares in Chung Tung.

(1)  In the Chinese Document, it is stated:

“… 現將中東之股份50%設立委托公司控股，現分配如下 浩銘22.5%，浩榮22.5%， 5%保存基金， 暫時由靜琴及靜君二人做臨時處理及鑒管人，日後若有人要出賣股權，須二個月書面通知，自己人、自己股東有優先權，每年結帳公司有賺，可那百份之10%或百份之20%，到時開會商議而定 ……” (Emphasis added)

(2)  By reference to “股份”, “股權”, “股東” and “公司”, it is plain that the subject matter in the Chinese Document is the shares in Chung Tung, not the interest in Chung Tung Group.

(3)  The majority of the 1^st Schedule Companies are neither called “中東” nor have any shareholding relationship with Chung Tung.  To say that “中東之股份” in the Chinese Document referring to the shares in all the 1^st Schedule Companies is something untenable.

69.In my judgment, the Chinese Document is only a document in which Father expressed his tentative view at that time.  It is not a legal document having any legal effect and cannot give rise to the Trust alleged by D in his case. The Trust alleged by D does not exist, and D did not and does not have any beneficial interest in Chung Tung or Chung Tung Group at any time.

70.Surprisingly, the fact that D did not and does not have any beneficial interest in the shares of Chung Tung or in the shares of any companies in the Chung Tung Group at any time is repeatedly admitted by D under cross-examination. The exchanges between Mr Kot and D are as follows[39]:

“問： ... 由始至終你喺中東嗰間總公司嘅股權，你係完全冇嘅，冇任何實質嘅股權嘅，同意定係唔同意？

答： 我係冇㗎，未分之前係冇嘅，我未見到呢份文件嗰陣時...

問： 唔好講未分之前，由始至終…

答： 係，我係冇嘅。

問： 由始至終，你係冇股權㗎嘛。

答： 有我爸爸嘅股權，係。

問： 係，之後都冇吖嘛？中文紙之後都冇吖嘛？

答： 之後--至到邊個階段？

問： 至到而家呢--由始至終，現階段，由頭到尾都冇嘅，同唔同意？

答： 我？

問： 你。

答： 冇喎。

官： 你聽清楚個問題呀。

答： 係，我因為--你要簡單啲再問...

...

問： 我向你指出，你喺中東嗰間總公司嘅股權，你本人係冇實質擁有權嘅，同唔同意？

答： 根據...

問： 任何實質擁有權都冇嘅。

答： 我唔識答你呢個問題，你可唔可以用第二個方式，等我明白了解多啲？

問： 你喺中東冇任何使實質股權，同意定係唔同意？

答： 我同意。我從來都唔係中東嘅股權，未分之前我唔係嘅。

問： 未分之後...

...

問： 再進一步問喇，由始至終其實你喺中東嘅唔同嘅集團公司喇，你叫中東group喇，你都係冇實質嘅股權嘅，同意定係唔同意？

答： 我冇股權㗎喎。” (Emphasis added)

The admissions made by D are clear and unequivocal.  I attach full weight to those admissions.

E5.  Issue 5 – Bars to Rescission

71.Lapse of time without rescinding will furnish evidence that a party to the contract has determined to affirm the contract, and when the lapse of time is great, it probably would in practice be treated as conclusive evidence to show that he has so determined.[40]

72.In the original defence filed on 19 January 2021, it is pleaded:

“20. … [D] is entitled to and does claim rescission of the [DFA].”

73.In my judgement, it is an undeniable fact that D only sought rescission of the DFA when he filed his defence in these proceedings on 19 January 2021, more than 22 years after his execution of the DFA.  Although in D’s solicitors’ letter dated 2 April 2015, it is stated that D “does not admit the validity of the DFA and reserves his right to set aside the DFA”,  D did not actually seek rescission of the DFA until the filing his defence in these proceedings on 19 January 2021.  I agree with Mr Kot that the delay of more than 22 years (from 30 September 1998 to 19 January 2021) plainly shows that D has determined to affirm the DFA before he filed his defence in these proceedings.

74.In the RRAD&C, D has put forward the following allegation to try to refute the affirmation point put forward by Ps:

“29. After [D] became aware of the existence of the Chinese Document as pleaded above, [D] had repeatedly complained to [P2] that she had deliberately hidden the Chinese Document from [D] when [D] was asked to sign [the DFA] and as a result, [D] should not be bound by [the DFA]. Every time, [Ps] and Lucia always urged [D] to stay united with them as one family in the disputes with YYC in respect of the family business and that [D] should not challenge [the DFA] at that moment. In the interest of the family, [D] did not take any legal step to challenge [the DFA] in accordance with [Ps]’ wishes.” (Emphasis added)

75.D tried to explain the delay in seeking rescission of the DFA by relying upon the “disputes with YYC”.  Plainly, this cannot be a satisfactory explanation.

(1)  As per preamble (D) of the Deed of Settlement, the disputes between the 9 Siblings and YYC only arose from around 2004.  That would be around 6 years after the execution of the DFA and D receiving a copy of the Chinese Document from P2.  The explanation put forward by D would not be applicable to this 6-year period.

(2)  The disputes between the 9 Siblings and YYC were resolved by the Deed of Settlement in 2007.  However, thereafter D did not lodge any challenge to the DFA until 2021.  For around 14 years, D did not seek rescission of the DFA.  Again, the explanation put forward by D cannot cover this period.

76.Under cross-examination, D was asked why he did not challenge the DFA after the disputes with YYC were resolved in 2007.  D referred to his Mother’s illness, but Mother had already passed away in 2003.  The relevant exchanges between Mr Kot and D are as follows: 

“問：你07 年都解決咗個問題囉，你點解仲可以用呢個原因去話「我唔挑戰個deed」呢？

答：呢個係其中一個問題吖嘛，YYC一個問題，嗰陣時我哋內部都想去解決呢個問題，係幾個原因嘅，媽媽個之前嘅病況呀，都好多，所以咪拖...

問：媽媽呢喺2003 年已經過咗身㗎喇。

答：係呀。

問：你2007 年你仲諗緊媽媽嘅病況？

答：所以我記得咁清楚囉，每一件事都，我連爸爸...

問： 2007 年你仍然係...

答：係呀。”[41]

77.Plainly, D could not provide any satisfactory explanation as to the long delay.  In my judgment, even if D had any ground to seek rescission of the DFA after execution of the same, D has elected to affirm the DFA by the long delay in seeking rescission of the same.

78.I also agree with Ps that by receiving payments from P2 as distributions from YYC’s Payment to China Ease (HK$4,000,000 of which is not in dispute), D must be regarded as having affirmed the DFA.  Ps would be able to distribute the YYC’s Payment to China Ease to the 9 Siblings, for Ps are the full beneficial owners of YYC.[42] The fact that Ps are the beneficial owners of China Ease is set out in the DFA.  By accepting the distributions, it is plain that D must have affirmed the DFA.

79.I am also in agreement with Ps that the DFA is a multilateral contract among Mother, Chung Tung and the 9 Siblings.  It would not be possible for D to just try to rescind the part affecting Ps and D.  The authorities in support of this point are as follows:

(1)  Event Spaces Ltd v Paul Richard Gregg[43], in which Mr Adrian Beltrami QC (sitting as a Deputy High Court Judge) said:

“40. Rescission is the last point on this aspect of the Defence, which creates a difficulty here in the structure of the Defence. The Novation Agreement was a contract with multiple parties, including parties not joined to these proceedings or responsible for any misrepresentation, and therefore rescission of the Novation Agreement would, at least in theory, involve, for example, the return of shares to Mr Weedon and his continued liability on the existing indemnity which he thought he had extricated himself from several years ago. On its face, it seems to me, quite apart from anything else, that any right to rescind has been lost. Mr Mills pointed me to the prayer which seeks, in the alternative, a form of partial rescission, but I accept the submission made by Mr Blakeley, by reference to Chitty, paras. 7-127, that a party may only rescind a whole contract and not part of it. Therefore, quite apart from anything else, it does not seem to me the remedy of rescission would be available.” (Emphasis added)

(2)  In Orient First Capital Ltd v Yau Pak Man and Anor[44], Wilson Chan J said:

“36. …… As held by Colman J in De Molestina v Ponton [2002] 1 Lloyd’s Rep 271 at §§6.1 & 6.2, in the context of an attempt to set aside a contract as a result of misrepresentation:

‘6.1 There can be no doubt that, according to the present state of development of English law, this court is bound by the general principle that a misrepresentee is permitted to rescind the whole of a contract but not part of it.

……

In the earlier case of Thorpe v Fasey [1949] 1 Ch 649, Mr Justice Wynn-Parry referred to the judgment of the Divisional Court in Sheffield Nickel & Silver Plating Co Ltd v Charwin (1877) 2 QBD 214 per Mr Justice Lush:

‘A contract voidable for fraud cannot be avoided when the other party cannot be restored to his status quo: Clarke v Dickson. For a contract cannot be rescinded in part and stand good for the residue. If it cannot be rescinded in toto, it cannot be rescinded at all; but the party complaining of the non-performance, or the fraud, must resort to an action for damages.’

Mr Justice Wynn-Parry commented:

‘There again, the language used indicated that the court there intended to pray in aid a well-established general principle that a contract cannot be rescinded in part and stand good for the residue. If it cannot be rescinded in toto it cannot be rescinded at all; and one reason for not directing rescission is that the parties, or one of them, cannot be restored to their status quo.’

6.2 These authorities do, in my judgment, make it very clear that the principle that there cannot be partial rescission is part of the wider requirement that there cannot be rescission unless there can be restitution in integrum. Further, that requirement is the conceptual consequence of the basic nature of the remedy of rescission which is to discharge all the parties from the bargain into which the misrepresentor has induced them to enter. It isnot and never has had the function of providing compensation for the misrepresentation or some hybrid solution to reflect what would be fair between the parties having regard to the nature of the representation and the extent to which one party has been misled by another. Consistent with that, the court has no power to create a new bargain for the parties. What has been induced is the original bargain and it is the purpose of the remedy to return the parties to their position before that particular bargain was made. There is therefore no room for any form of equitable engineering directed to reconstructing the fabric of the original contract.’” (Emphasis in original)

E6. Issue 6 – D in breach of the DFA and his duties as trustee

80.Following from the above, it is clear that the DFA is valid and binding upon D.  In accordance with the DFA, D held and continues to hold the 3,000 shares in China Ease on trust for Ps in equal shares.  D was in breach of the DFA and his duties as trustee, by failing to transfer the shares to Ps upon their request.  It follows that Ps are entitled to the reliefs sought against D. 

E7.  Issues 7 to 9 – D’s counterclaim

81.Issues 7 to 9 concern D’s counterclaim, which is based upon the Trust alleged by D in his case.  Since I have held that the Trust has never existed, D’s counterclaim must be dismissed.  As to issues 7 to 9, the answer to each issue is “No”.

F.  DISPOSITION

82.For the reasons above, I allow Ps’ claim and dismiss D’s counterclaim. I make the following order:

(1)  It is declared that the 3,000 shares of China Ease registered in D’s name are held by D on trust for Ps in equal shares pursuant to the DFA.

(2)  Ps’ solicitors do prepare the documents (“the Transfer Documents”) to effect the transfer of the 3,000 shares in China Ease from D to Ps in equal shares (ie 1,500 shares to P1, and 1,500 shares to P2) and send the same to D within 14 days.

(3)  D shall execute the Transfer Documents and return the same to Ps’ solicitors within 14 days thereafter.

(4)  If D fails to comply with subparagraph (3) above, the partner in LL supervising the handling of this case be authorized to execute the Transfer Documents on behalf of D.[45]

(5)  There be liberty to apply.

(6)  D’s counterclaim be dismissed.

83.There be a costs order nisi that costs of these proceedings (including all costs reserved) be to Ps.  Unless an application by summons for a variation of the costs order nisi is made within 14 days after the handing down of this judgment, the costs order nisi shall become absolute without a further order.

84.Lastly, I thank Mr Kot for the helpful assistance rendered to the Court.