Anthony Charles Desir v. Ajax Pong Machinery Leasing Ltd and Another

DCCJ16078/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISISTRATIVE REGION

CIVIL ACTION NO. 16087 OF 2000

___________

BETWEEN

__________

Coram: Deputy District Judge W. K. Kwok in Chambers

Date of Hearing: 2nd July 2005

Date of Handing Down Reasons for Decision: 12th September 2005

Reasons for Decision

1.The following two Summonses fall for consideration: -

(1)	An application by the Defendants by the Summons filed on 17th May 2005 for an Order that the Plaintiff shall file and serve a further affidavit to sufficiently answer the Interrogatories filed on 21st April 2005 (“the Sufficient Answer Summons”);
	and
(2)	An application by the Plaintiff by the Summons filed on 30th May 2005 for an Order that the Order of Master J. Ko dated 20th April 2005 be revoked (“the Revocation Summons”).

History of the Action

2.The Plaintiff instituted these proceedings in the Court of First Instance by issuing his Writ of Summons endorsed with a Statement of Claim on 17^th March 2000 against the 1^st Defendant (“D1”), who was the only defendant at that time.  After D1 had filed its Defence on 2^nd May 2000 and the Plaintiff had filed his Reply on 16^th May 2000, the Action was transferred to the District Court pursuant to the Order made by Master Jones on 14^th November 2000.

3.After the transfer, D1 filed an Amended Defence on 27^th February 2001.  The Plaintiff filed an Amended Reply on 9^th April 2001.

4.On 3^rd July 2003, the Plaintiff added the 2^nd Defendant (“D2”) into this Action with leave, and filed its Amended Statement of Claim against both Defendants.

5.D1 filed its Re-Amended Defence and D2 filed its Defence on 15^th August 2003.

6.By an Order dated 9^th September 2004 and made by Master K. W. Wong pursuant to a consent summons dated 20^th August 2004, the Plaintiff was given leave to file and serve his Re-Amended Reply, and the service of the Re-Amended Reply was deemed to be served on the date of the consent summons. 

The Claim

7.The Plaintiff’s claim against D1 and D2 is for the sum of HK$300,000 being the agreed fees, or alternatively for a reasonable sum, for the services rendered by him as a financial adviser to D1 and D2 between February and September 1999 in respect of certain debts restructuring referred to by the parties as “the Nichimen Project”, under which the Plaintiff was to provide his services in respect of a loan package of HK$36,000,000 to be granted by Nichimen Corporation of Japan and/or Nichimen Co., (HK) Ltd. of Hong Kong to D1.

The Defence

8.D1 and D2 deny the Plaintiff’s claim, in gist, upon the following grounds: -

(1)	The Defendants engaged Universal Gold Trading Co. Ltd. (“Universal Gold”), rather than the Plaintiff personally even though he was the managing director and representative of Universal Gold, for the provision of financial consultancy services in respect of the Nichimen Project.
(2)	Universal Gold would only be entitled to receive a fee for its service in respect of the Nichimen Project on a success basis only, and no success fee was due and payable because the Nichimen Project had not been completed.
(3)	Even if any sum was due and payable in respect of the Nichimen Project, such sum should be due and payable to Universal Gold but not to the Plaintiff.

“The Assignment Argument”

9.Before the proceedings were transferred from the Court of First Instance to the District Court when the Plaintiff and D1 were the only parties to the proceedings, D1 had admitted on the pleadings that the Plaintiff had provided his service as D1’s financial adviser in respect of the Nichimen Project at its request.

10.After the transfer, D1’s changed its stance and alleged that it only engaged the service of Universal Gold and not the personal service of the Plaintiff.  D1 applied to amend its Defence, and was given leave to amend despite opposition by the Plaintiff.

11.The Plaintiff then amended his Reply on 9^th April 2001 to include what the parties have referred to as “the Assignment Argument” in the following terms: -

“	6.	… It is averred that [D1] is liable to the Plaintiff, and not to Universal Gold for the sum of HK$300,000 due and payable in respect of the financial consultancy services rendered by the Plaintiff in the Nichimen Project.
	7.	Even if, which is denied, [D1] is liable to Universal Gold for the said sum of HK$300,000, on 20th August 1999, Universal Gold assigned to the Plaintiff all rights, privileges, and income that have been due, or may become due to Universal Gold.”

12.The Assignment Argument raised in paragraph 7 of the Amended Reply was clearly put in to support the Plaintiff’s claim on an alternative basis because the Plaintiff re-affirmed his case that it was he who had contracted with D1 in paragraph 6 of the Amended Reply.

13.In the Answers to D1’s Request for Further and Better Particulars of Amended Reply filed on 9^th October 2001, the Plaintiff stated that the assignment referred to in paragraph 7 of the Reply was made in writing, and that it required no consideration.  He annexed a copy of the assignment which was entitled “Letter of Appointment & Assignment of Rights” dated 20^th August 1999 issued by Universal Gold in favour of him (“the Letter of Assignment”).

14.In the subsequent discovery process, the Plaintiff also disclosed to D1 a copy of a Certificate of Incorporation issued by the Registrar of Companies of Cayman Islands in respect of Universal Gold.  According to this Certificate, Universal Gold was formed and registered in the Cayman Islands on 23^rd November 1990.  However, investigation made by D1’s solicitors revealed that Universal Gold had been struck off the company register of Cayman Islands on 31^st December 1992.  As a result of this discovery, D1’s solicitors wrote to the Plaintiff’s solicitors, in a letter dated 12^th December 2001, inter alia, that: -

“	It is your client’s case that even if the Defendant is liable to Universal Gold for the amount which the Plaintiff is claiming herein, Universal Gold has on 20 August 1999 assigned to the Plaintiff all rights, privileges, and income that have been due, or may become due to Universal Gold.  In light of the above information from the Cayman Islands Registrar of Companies, clearly Universal Gold could not possibly have made the alleged assignment on 20 August 1999 as it had ceased to exist after 31 December 1992.
	In the circumstances, unless the Plaintiff would not be arguing that Universal Gold has on 20 August 1999 assigned to the Plaintiff all rights, privileges, and income that have been due, or may become due to Universal Gold, it is necessary for the Plaintiff to disclose further documents about Universal Gold for this purpose instead of disclosing only its Certificate of Incorporation because the legal status as well as the capacity of Universal Gold to make the alleged assignment are so clearly relevant.”

15.In the first paragraph of a letter dated 17^th December 2001, the Plaintiff’s solicitors stated to D1’s solicitors that: -

“

It has always been the Plaintiff’s case that the Defendant is liable to the Plaintiff, and not to Universal Gold for the sum of HK$300,000 due and payable in respect of the financial consultancy services rendered by the Plaintiff in the Nichimen Project.  Accordingly, the Plaintiff will not be relying on any assignment by Universal Gold.”

16.D1’s solicitors wrote back and stated on behalf of the Plaintiff, in a letter dated 22^nd December 2001, that: -

“	Notwithstanding your first paragraph therein, we intend to cross examine the Plaintiff at the Trial.”

17.Although the Plaintiff had by his solicitors’ letter dated 17^th December 2001 expressly withdrawn the Assignment Argument, he had not applied to delete paragraph 7 of the Amended Reply.  On the contrary, in the Re-Amended Reply deemed to be served on the Defendants on 20^th August 2004, the Assignment Argument remained and still remains in the pleadings.

Master J. Ko’s Order

18.By a Summons filed on 15^th April 2005, D1 and D2 applied to Court for leave to file and serve Interrogatories upon the Defendant.  Eight questions were asked.  All related to the Assignment Argument.

19.The Defendants’ application was heard on 20^th April 2005 before Master J. Ko when neither the Plaintiff nor his solicitors appeared.  Master J. Ko granted the application.

20.The Interrogatories were served on the Plaintiff on 21^st April 2005.  The Plaintiff served and filed his answer to the Interrogatories upon affirmation on 26^th April 2005.

21.The Defendants contend that the Plaintiff has not answered the Interrogatories sufficiently or at all.  Hence, they issue the Sufficient Answer Summons.  The Plaintiff then takes out the Revocation Summons.

Preliminary Submissions

22.Mr. Chan, solicitor for the Defendants, submits that the Revocation Summons must fail because the Plaintiff has already waived or forfeited the right to challenge the Order made by Master J. Ko when he answered the Interrogatories upon affirmation on 26^th April 2005.  He also points out that the Plaintiff’s solicitors have given inconsistent reasons as to why they failed to appear before Master J. Ko.

23.In my view, although the Plaintiff is now asking for revocation of the Order made by Master Ko, he is not challenging the Order in the sense that he is applying to set it aside being an order made in his absence pursuant to Order 32 rule 5(3) of the Rules of the District Court (“RDC”), or that he is appealing against the Order pursuant to Order 58 rule 1 of RDC.  If that were his application, there would not be anything for him to challenge as he has already complied with the Order, and the Court is functus officio.  However, the Plaintiff is making this application pursuant to Order 26 rule 8, which stipulates that: -

“	Any order made under this Order (including an order made on appeal) may, on sufficient cause being shown, be revoked or varied by a subsequent order or direction of the Court made or given at or before the trial of the cause or matter in connection with which the original order was made.”

24.In my view, while an application under Order 26 rule 8 may result in the revocation of an earlier order for interrogatories, it does not involve a determination on the propriety of the earlier order, but on whether sufficient cause has been shown for its revocation or variation.  It is immaterial as to why the Plaintiff or his solicitor has failed to appear before Master J. Ko, or that he has already filed an answer.

The Interrogatories and Answers

25.The Interrogatories contain 8 questions.  The Plaintiff has purported to answer them in his affirmation filed on 26^th April 2005.

26.Interrogatories No. 1 and 2 relate to whether the Plaintiff has provided any consideration for or in respect of the making of the Letter of Assignment, and if so, what the consideration was, how much it was worth, when it was given, and to whom it was given.  In his Answer, the Plaintiff merely refers to paragraph 20 of his first witness statement.

27.In paragraph 20 of his first witness statement filed on 11^th October 2000, the Plaintiff stated inter alia that the invoice for the Nichimen Project was issued on the letterhead of Universal Investment Services Limited (“UISL”) and requested D1 to make payment to the bank account of Universal Gold which always accepted payment directly on behalf of UISL and/or himself.  Mr. Chan criticizes this Answer on the ground that it does not mention the consideration that the Defendants are seeking to discover.

28.Interrogatory No. 3 relates to whether the Plaintiff has accepted any rights, privileges, income or assignment due to Universal Gold.  The Plaintiff answers in the affirmative.  By Interrogatory No. 4, the Defendants ask the Plaintiff to state what was accepted by him, how much it was worth, when he received it and from whom he received it.  The Plaintiff refers the Defendants to paragraph 6 of his 3^rd Supplemental Statement filed on 24^th January 2002, the “refinancing fee summary” attached to his 2^nd Supplemental Statement filed on 7^th July 2004, and his first Statement.  He states that only partial payment was received.

29.Mr. Chan says that paragraph 6 of the Plaintiff’s 3^rd Supplemental Statement was just his explanation on why invoices were addressed to the Ajax Pong Group instead of specific companies within the Group, and that he gives no specific details in his reference to his other statements and fee summary.  Besides, the answer does not provide any information on the matters raised in Interrogatory No. 4 at all.

30.Interrogatories No. 5 and 6 relate to whether Universal Gold has disposed of any of its interest to the Plaintiff, and if so, what was disposed, how much it was worth, when Universal Gold disposed of it, and whether the Plaintiff has disposed of such interest himself.  The Plaintiff refers the Defendants to his answer to Interrogatory No. 4, which Mr. Chan has already criticized as insufficient.  The Plaintiff also states in his Answer that he does not understand the exact meaning of “dispose of” in the question.  Mr. Chan submits that the Plaintiff speaks fluent English and that he should understand the meaning of “dispose of”.

31.Interrogatories No. 7 and 8 relate to whether the Plaintiff has made and/or indicated to any person/entity that Universal Gold should/shall dispose of its interests to him, and if so, when and to whom the Plaintiff had communicated his decision and/or indication.  The Plaintiff states in his Answer that he is unable to answer the question as the scope of the questions is too wide.

32.Two observations can be made at this point of time.  First, all of the Interrogatories relate to the Assignment Argument.  Second, Mr. Chan’s criticisms of the Answers are well founded.  Most if not all of the Plaintiff’s answers are imprecise, window-dressing, and do not respond to the questions either sufficiently or at all.

33.Hence, if the Plaintiff does not succeed on his Revocation Summons, an order in terms of the Sufficient Answer Summons will be made.  It is therefore essential to consider whether he has shown sufficient cause on whether Master J. Ko’s Order should be revoked.  The general principles governing interrogatories have to be re-visited.

34.Perhaps, two matters should be said at once.  First, in the hearing before Master J. Ko, the Defendants’ solicitor had not informed the learned Master that the Assignment Argument had been withdrawn by the Plaintiff in December 2001.  Second, Mr. Stock, Counsel for the Plaintiff, says that although the Plaintiff asks for revocation of the Order made by Master J. Ko, the Plaintiff has no objection for the Answers he has already provided upon affirmation to remain in the Court file and form part of the pleading documents between the parties.

The Applicable Principles

35.In Lee Nui Foon v Ocean Park Corp (No. 2) [1995] 2 HKC 395, Cheung J (as he then was) summarized the principles regarding discovery by interrogatories.  It is helpful to set out his summary: -

(1)	The interrogatories must relate to ‘a matter in question’ between the parties.
(2)	The interrogatories must be ‘necessary’ either (a) for disposing fairly of the cause or matter; or (b) for saving costs.
(3)	The interrogatories must not be fishing, oppressive, prolix or imprecise. An interrogatory will be oppressive if the answer cannot be given without an examination of the respondent’s record, with the expenditure of much time and trouble.
(4)	The interrogatories must not be questions which go to the evidence the opposing party intends to adduce.
(5)	The interrogatories must not be questions which require an answer which is a matter of opinion or for an expert.
(6)	The interrogatories must not be questions which go to the facts which will assist in establishing the opposing party as opposed to the case of the party seeking to interrogate.
(7)	The interrogatories must not be effectively asking for documents of discovery.
(8)	If the interrogatories do not comply with the requirement of the rules under Order 26, they may not be administered. Even if they do comply with the rules, the court still retains an overriding discretion as to whether or not to allow them to be administered.

36.In Esquire (Electronic) Limited v The Hong Kong and Shanghai Banking Corporation Limited & Another, HCA11077/1994, Waung J (unreported, 2^nd September 2003) stated that: -

“

The essential requirements permitting interrogatories are therefore, firstly that they be relevant, secondly they are necessary for fairly disposing of the cause/matter and/or thirdly they are necessary for saving costs.  Relevance is not difficult but necessities (under either limb) and its application is what gives rise to different contentions.  I accept the principle that it must be demonstrated to the Court upon the interrogatory being contested that the interrogatory if answered will serve a clear litigious purpose by saving costs or promoting the fair and efficient conduct of the action.  Objections to interrogatories based on lack of necessity take various forms such as (1) the question can be put to the witness in cross-examination, (2) the question is a dry-run of the cross-examination, (3) the answer to the question is obvious or can be found in the document or various documents, (4) the question will not result in any admission.  The validity of the objection however must be judged in the context of the particular interrogatory and all the surrounding circumstances.  It is necessary therefore to examine each Interrogatory disputed.”

Discussion

37.Mr. Stock submits that the Interrogatories sought by the Defendants are plainly bad because they are hopelessly irrelevant.  He points out that the Interrogatories are aiming at examining the veracity of the Assignment Argument which was withdrawn as early as in December 2001.  He further submits that even if the Assignment Argument is still a live point, the Interrogatories are still bad because all matters can be dealt with by cross-examination at trial, and the Interrogatories are not necessary for fairly disposing of the matter or saving costs.

38.Mr. J. Chan on the other hand argues that despite the withdrawal of the Assignment Argument, it is still relevant because if Universal Gold has assigned its rights to fees paid or payable under the Nichimen Project to the Plaintiff, it shows or will tend to show that Universal Gold rather then the Plaintiff was the real contracting party.  Mr. Chan submits that although the Assignment Argument was not a matter directly in issue, its existence is relevant to the facts directly in issue, namely, whether Universal Gold or the Plaintiff was the contracting party.  Viewing from this perspective, Mr. Chan submits that the Interrogatories are proper because they satisfy the requirement of relevancy and they tend to support the Defendants’ case and/or to impeach the Plaintiff’s case: Hoolton v Dalby [1907] 2 KB 18; that it is not necessary for the interrogatories sought to be conclusive on any given issue before they are ordered, and that questions that can be put in cross-examination can also form the subject matter of interrogatories: Lau Tak Wah Andy v Hang Seng Bank Limited, CACV612/2001; that whether there was an assignment of the fees due under the Nichimen Project was a matter within the exclusive knowledge of the Plaintiff: Hills and Another v Wates and Another (1873-74) L.R. 9 C.P. 688; and that the Plaintiff has not withdrawn the Assignment Argument on oath: Attorney General v Gaskell (1882) 20 Ch. D. 519.  Mr. Chan further submits that if there is an assignment of the Nichimen fees to the Plaintiff by Universal Gold, the Defendants will not be liable to pay the Plaintiff because no notice of the assignment has been given to the Defendants.

39.On the issue of relevancy, on the basis of Mr. Chan’s submission, it is difficult to say that the Assignment Argument has no relevancy at all even though the Plaintiff has withdrawn it.  However, I have great reservation whether there is a genuine dispute between the parties over the identity of the contracting parties or whether the Defendants are just boasting up their defence and complicating the issues.  It is interesting to note that in the affirmation made by Chan Kit Mui Lina filed on 23^rd December 2000 in support of the application for amendment of defence, Miss Chan stated that “as a result of discovery in July 2000, taking of detailed instructions from [D1] and advice by counsel in August 2000, [D1] was advised by Counsel and became aware that both parties have made an error in identifying the true contracting parties to the agreement alleged by the Plaintiff.”  Miss Chan was saying that not only the Defendants but also the Plaintiff had made a mistake in the identity of the contracting parties.  If both the Plaintiff and the Defendants were under the belief that they had contracted with one another, there was surely a meeting of the minds and I have difficulty in understanding how the alleged mistake could have arisen.  After all, the parties had been dealing with each other since 1994, and it was hard to believe that D1 could have mistakenly admitted that it was contracting with the Plaintiff in its original Defence.

40.Furthermore, even if the Assignment Argument is still relevant, the most important issue is whether the Interrogatories are “necessary” for disposing fairly of the cause or matter, or for saving costs.

41.Mr. Chan’s argument has not taken into account the fact that Universal Gold, which was an overseas company formed and registered in the Cayman Islands, was struck off from the company register there on 31^st December 1992.  According to its business registration record in Hong Kong, it also ceased to have a place of business in Hong Kong with effect from 1^st January 1996.  Hence, Universal Gold was not a valid legal entity at the material time.  It could not have assigned anything to the Plaintiff, and in fact, it could not have contracted with the Defendants.

42.In addition, the Plaintiff’s claim was for services rendered between February and September 1999 when Universal Gold had no legal existence.  Hence, even if the Defendants entered into the contract with the Plaintiff, not in his personal capacity but in the capacity of a managing director and representative of Universal Gold, the Plaintiff can still enforce the contract personally by virtue of section 32A(1) of the Companies Ordinance which enables the Plaintiff to enforce the contract personally against the Defendants.  Hence, it will not be conducive to either fair disposal of the cause or matter, or for saving costs, even if the Defendants manage to establish that there was a purported assignment of the benefit under Nichimen Project to the Plaintiff.

43.Mr. Chan realizes the difficulty and argues that Universal Gold might well be struck off from the company register in Cayman Islands but it does not necessarily mean that it ceases to exist.  He says that we do not know what the company law in Cayman Islands is.  Mr. Chan’s stance is surely contrary to the Defendants’ contention in their solicitors’ letter dated 12^th December 2001 when it was said, “ … clearly Universal Gold could not possibly have made the alleged assignment on 20 August 1999 as it had ceased to exist after 31December 1992”.  It also necessitates the Defendants to adduce expert evidence relating to the law in Cayman Islands to say that a company nevertheless exists although it is struck off.  This is certainly not the position in Hong Kong and appears to defy logic and common sense, and the Defendants have no evidence to that effect at this stage.  If expert evidence of Cayman Islands law is to be adduced, that means costs will be increased and the trial will be lengthened, but the extra evidence does not necessarily help disposing the cause or matter one way or the other.

44.Furthermore, even if the Defendants still want to dwell on this Assignment Argument, there are in my view sufficient materials for them to proceed without the Interrogatories.  It appears to be common ground that the invoices sent by the Plaintiff were under the letterhead of Universal Services Investment Limited, and that payments were made into the account of Universal Gold.  There are of course also the Plaintiff’s own plea of the Assignment Argument, his disclosure of the Letter of Assignment, and the admission he has made in the Answer upon affirmation filed pursuant to the Order of Master J. Ko when he answered affirmatively in response to Interrogatory No. 3.

45.Besides, in my view, the other interrogatories are of little help in determining the issue in question.  By establishing the Assignment Argument which the Plaintiff has withdrawn, the Defendants are trying to show that Universal Gold could not have assigned the benefit under the Nichimen Project to the Plaintiff unless it was a party to it.  But whether or not the Plaintiff has provided consideration for the assignment cannot show any light on this central question, as an assignment can be effected without consideration.  Hence, the question is irrelevant.  In any event, the Plaintiff has already disclosed the Letter of Assignment.  In my view, it is therefore not necessary to have Interrogatories No. 1 and 2.  In respect of Interrogatory No. 4, since the Plaintiff has already answered in the affirmative to Interrogatory No. 3, it is irrelevant to know what exactly was accepted by the Plaintiff, its money’s worth, and the other details.  The Defendants need to know the fact that there was acceptance of the benefit of the Nichimen Project that was assigned or purported to be assigned by Universal Gold, but the its details are not necessary or relevant.  Asking what Universal Gold has disposed of to the Plaintiff in Interrogatories No. 5 and 6 is just a reverse way of asking Interrogatories No. 3 and 4.  Interrogatories 7 and 8 are merely asking for evidence relating to the assignment.  In my view, these Interrogatories are not necessary for disposing the matter or for saving costs.  This cannot be just my view.  It must also be the Defendants’ view, at least for 3½ years prior to taking out the Interrogatories Summons before Master J. Ko.  Their intention (or at least D1’s intention) to cross-examine the Plaintiff on the Assignment Argument was evident in their solicitors’ letter dated 12^th December 2001 despite its withdrawal by the Plaintiff, but they have done nothing to serve the Interrogatories prior to taking out the Summons before Master J. Ko.  It is difficult to understand why such materials suddenly became not only relevant but also necessary to a fair disposal of the cause or matter when the Defendants had not so considered before.   In any event, the delay in delivering Interrogatories is also a proper factor for the Court to consider, in the exercise of its discretion, whether Interrogatories should be ordered to be administered.

46.Mr. Chan’s other arguments in my view also do not advance the Defendants’ case any further.  While it may be that the Assignment (if it existed at all) was within the exclusive knowledge of the Plaintiff, the central issue is whether it was the Plaintiff or it was Universal Gold who had contracted with the Defendants, and this is a matter which the Defendants have, and must have, knowledge.  As to the submission that the Plaintiff has not withdrawn the Assignment Argument on oath, that is a point without merit at all because on oath or not, the Plaintiff has already withdrawn the argument in December 2001 and he has confirmed once again the position by taking out this Revocation Summons.

47.In my view, the Interrogatories sought by the Defendants are not necessary for disposing the cause or matter fairly.  On the contrary, it will just lengthen the trial and increase the costs of litigation.  All in all, I am of the view that sufficient cause has been shown by the Plaintiff that the Order of Master J. Ko should be revoked, save and except his costs order.  In arriving at this conclusion, I have borne in mind the concession made by Mr. Stock that the Answer upon affirmation filed by the Plaintiff pursuant to Order of Master J. Ko will remain in the Court file and form part of the pleading documents.  It follows that The Plaintiff’s Answer can be used in the same way as any other answer to interrogatories filed by a party to the proceedings.

48.The costs order make by Master J. Ko on 20^th April 2005 must stand because it was a proper order to be made on that occasion.  The Plaintiff succeeds in the Revocation Summons only because he has shown, subsequent to that hearing, that there is sufficient cause for revoking the Interrogatories Order.

49.In light of my ruling above, it must follow that the Plaintiff will not be required to serve further answers under the Sufficient Answers Summons, and that Summons will be dismissed.

Costs

50.As far as the question of costs is concerned, at the time when the Defendants took out the Sufficient Answer Summons, the Plaintiff had not indicated to the Defendants that they would challenge the Order made by Master J. Ko or seek to have it revoked under Order 26 rule 8.  Instead, he sought to comply with it by filing an answer which, as I have already said, is clearly deficient, and a window-dressing way of complying with a court order.  The Defendants therefore cannot be criticized for issuing the Sufficient Answer Summons.

51.I also note that for the Plaintiff’s solicitors had failed to appear before Master J. Ko.  Had full arguments been presented before Master J. Ko, it might not be necessarily for the Plaintiffs to issue the Revocation Summons at all.  In other words, the Plaintiff or his legal representative must bear some responsibility in bringing about this Revocation Summons when it might have been avoided.

52.Of course, on the other hand, the Defendants have opposed the Revocation Summons and failed.

53.Under these circumstances, I am of the view that the fairest order to be made is that each party shall bear its own costs.  Hence, I shall make no order regarding costs in respect of the two Summonses before me.

Order

54.In respect of the Revocation Summons, I order that: -

(1)	Paragraphs 1 and 2 of Master J. Ko’s Order dated 20th April 2005 be revoked.
(2)	The Answer to the Interrogatories upon affirmation filed by the Plaintiff on 26th April 2005 shall remain in Court file and form part of the pleading documents.
(3)	There shall be no order as to costs.  This is an order nisi and shall become absolute within 14 days of the date when this decision is handed down unless application is made for its variation.

55.In respect of the Sufficient Answer Summons, I order that: -

(1)	The summons be dismissed
(2)	There shall be no order as to costs.  This is an order nisi and shall become absolute within 14 days of the date when this decision is handed down unless application is made for its variation.

Mr. Alexander Stock, instructed by Messrs. Dibb Lupton Alsop, for the Plaintiff.

Mr. J. Chan, of Messrs, F. Zimmern & Co. for the Defendants.