Commercial Union Insurance Australia v Fercon

(ii) Application to discharge summonses 99I turn then to the application for discharge of the summonses, which was made in the context of access having been by then granted to the confidential affidavits.

Basis of review 100At the outset, I note that it was accepted by the NAB Executives and by the Receivers that I should approach this application as a review of the Registrar's decision to issue the summonses and not as a hearing de novo , following the decision of Barrett J in O'Brien v Wily (2009) 74 ASCR 145, although Mr Gleeson SC formally handed up submissions as to why that conclusion was incorrect (in order to preserve the position should this matter be taken on appeal). In O'Brien , his Honour rejected the submission that the court, when hearing an application to set aside examination summons, must embark upon a hearing de novo and that the burden of making out a case for the continuation of the summonses therefore lay on the party who had applied for them; that submission having been put on the basis that the court when hearing such an application is exercising Commonwealth judicial power. 101In Meteyard , Basten JA (having noted that the Court was exercising federal jurisdiction vested in it pursuant to s 77(iii) of the Constitution in the exercise of the power to issue an examination summons and that the issue of the summonses had occurred by way of an ex parte application on the basis of an affidavit the terms of which had not been disclosed and were not then before the court) observed (at [32]) that "the nature of a proceeding to discharge an ex parte order may be treated as, in substance, a rehearing of the initial application", referring to Gerah Imports Pty Ltd v The Duke Group Ltd (in liq) (1993) 61 SASR 557 at 561. 102The submissions made on this issue by Mr Gleeson involved the following elements: first that as this Court, in the exercise of the jurisdiction granted by s 1337B of the Corporations Act, is a court within the meaning of s 71 of the Constitution, and is exercising the judicial power of the Commonwealth when issuing an examination summons (referring to Gould v Brown (1998) 193 CLR 346 at [33]); secondly, that the delegation of part of the jurisdiction, powers and functions of this Court as a s 71 court to an officer including a Registrar will be valid only if, inter alia, the exercise of that delegated jurisdiction power or function is subject to review by a judge on questions of both fact and law (referring to Harris v Caladine (1991) 172 CLR 84), and to that end the Federal Court of Australia Act 1976 (Cth) provides (s 35A) that a party may apply to that Court for a review of the exercise of delegated power by a registrar including a decision to issue an examination summons (noting the equivalent delegation to Registrars of this Court in Part 3 of the Delegation to Registrars under s 13 of the Civil Procedure Act 2005 (NSW)), and that a 'review' in federal jurisdiction has a special meaning and is taken to mean a re-examination of the matter afresh (citing Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [43]), then it is said to follow that a review of a decision by a Registrar of this Court to issue an examination summons must (so as not to offend Ch III of the Constitution) be susceptible of a full review by a judge or judges of this Court considering the matter afresh and that on a rehearing of the matter the applicant must adduce evidence to satisfy the court that the examination summonses should issue. 103As noted, it was not necessary for me to express an opinion as to this issue as the NAB Executives accepted that on the present application the approach of Barrett J in O'Brien would be followed (and neither Mr Newlinds nor Mr Jucovic suggested otherwise).
Grounds relied upon for discharge of summonses 104The application to discharge the summonses was based on the same two broad grounds as the application for access to the confidential affidavits: first, that there had been non-disclosure of material matters and secondly, that there was an improper purpose and thus that the issue of the summonses was an abuse of the court's process. The evidence relied upon was that already then before me, together with the content of the affidavits (to which it was accepted, in light of what was said in Markethaven , I could by this stage have regard without them being formally tendered or read as to the truth of their contents) and the examination of Mr Sheahan who was called to give evidence by Mr Gleeson. 105As to the alleged non-disclosure, having reviewed the 10 November 2010 affidavit, Mr Gleeson raise the following six areas: (i) reference to the 9 January 2007 letter 106In paragraph 53 of his affidavit, Mr Sheahan deposed to the giving of notice on 9 January 2007 by the Secured Creditors to Idoport under clause 3.3 of the respective charges "declaring that the Fulham Charge and the Portsmouth Charge extend to, and operate as a fixed charge over, Idoport's rights, title and interest in the Excluded Property" and a copy of the notice was included in the exhibits to his affidavit. 107Mr Gleeson submitted that this was misleading in failing to reveal the existence of a dispute as to whether the notice had in fact been given. That dispute, it was said, was apparent from the document appearing at p 644 of the exhibits to Mr Sheahan's 10 November 2010 affidavit (a letter dated 19 October 2009 from the liquidator, Mr Sherman, to Mr Smith then the receiver, advising that Mr Sherman had been unable to find evidence in the books and records of the company of the notice of 9 January 2007 to which reference was made in his Deed of Appointment; that it had not been served on him and that the director of the company, Mr Maconochie, had advised that he was not aware of such notice being issued). In that letter, the liquidator expressed the view that in the event that such notice had not been given then the property was not under Mr Smith's control and he was not in a position to be calling for expressions of interest. Mr Gleeson accepted that this was an innocent non-disclosure but submitted that if the notice had not been served (or was not valid) then the rights under the Consulting Agreement would still remain with the company in liquidation and could only become the secured property if a declaratory order were to be made in favour of the Secured Creditors. 108Mr Newlinds submitted that whether there was an issue as to the service or receipt of this letter was irrelevant; that whether the letter was served might have an impact as between Idoport and the Secured Creditors but has no impact on the NAB Parties' rights and that the relevant question was whether there had been a constructive refusal of consent on unreasonable grounds. Therefore, it was submitted that even if there had been a non-disclosure in this regard it was not material. (ii) reference to retirement of previous receiver 109In paragraph 86 of his affidavit, Mr Sheahan deposed that on 2 August 2010, at the request of the Secured Creditors, Mr Smith retired as the first receiver of Idoport. 110It was submitted that this was an instance of incomplete disclosure, since the retirement of the receiver was brought about because he had refused to co-operate with requests of the Secured Creditors. 111Mr Newlinds submits that nothing can be drawn from this as there was nothing to explain what was meant by the reference to a refusal to co-operate, Mr Smith had not been called to elucidate the matter, and in any event it was not material whether Mr Smith had not been prepared to make the application (if that is indeed what should be inferred from this correspondence). (iii) Adverse findings of Young J 112At paragraph 90 of his affidavit, as the final paragraph in a section headed "Appointment of Mr Lock and me as receivers", Mr Sheahan deposed as follows: I am aware of the Original Proceedings from my role with Market Holdings Pty Limited which was the second plaintiff in the Main Proceedings and the Argus Proceedings referred to above. My appointment as liquidator of Market holdings Pty Ltd was the subject of two judgements delivered by Einstein J [conceded to be an erroneous reference to Young J) in National Australia Bank Limited v Market Holdings [2000] NSWSC 1009 (26 October 2000) and NAB Ltd v Market Holdings Pty Ltd (in liquidation) [2001] NSWSC 253 (9 April 2001) .... 113Copies of those judgments were exhibited to the affidavit. 114Mr Gleeson submits that it was not sufficient to refer to these judgments or to exhibit them as part of the 3 folders of documents exhibited to the confidential affidavit, relying upon what was said by Allsop J (as his Honour then was) in Walter Rau Neusser Oel Und Fett AG v Cross Pacific Trading Ltd [2005] FCA 955. Certainly, it would not be apparent from the reference in paragraph 90 of the affidavit alone that there had been any critical or adverse finding against Mr Sheahan in those judgments or that this might have any bearing on whether he had a legitimate interest in the issue of the examination summonses for which application was then being sought. Mr Gleeson submits that it was incumbent on Mr Sheahan to give a sufficient explanation of his failure to disclose these adverse findings. 115Mr Newlinds submits that this is again immaterial since in the earlier proceedings (unlike the position here) there was a finding of pecuniary interest on the part of Mr Sheahan and a finding (which Mr Newlinds submits should not be the case here) a finding of an attempt to circumvent the barring orders. As to the findings of general conduct it is said that there was nothing here to disclose. 116As to the suggestion that any Jones v Dunkel inference should be drawn against Mr Sheahan, Mr Newlinds referred to Commercial Union Insurance Australia v Fercon [1991] 2 NSWLR 389 and submitted that as Mr Gleeson had called Mr Sheahan there could be no inference drawn that he had any subjective purpose other than that stated in his confidential affidavits (the ' Market Holdings ' purpose for example not having been put to Mr Sheahan in the witness box). (iv) dispute as to whether Consulting Agreement rights were subject to charges 117In section J of his 10 November affidavit (which formed the basis for the later affidavit), headed "Reasons for making this application under section 598B of the Act", Mr Sheahan in paragraphs [91] - [95] deposed as follows: [91] Based on the correspondence described in paragraph to above, I believe that there exists a dispute as to whether the "Excluded Property" as defined in the Fulham Charge and the Portsmouth Charge has effectively become subject to those charges, and hence whether we have been appointed as receivers in respect of such property. [92] Furthermore, based on the correspondence described in paragraph to above, I believe that one of the key issues in dispute is whether clause 20.1 of the Consulting Agreement was complied with when Idoport was dealing with the NAB Parties in seeking their consent to the property being charged. This issue involves questions as to whether the NAB Parties were acting reasonably in withholding their consent. [93] As a result of the abovementioned dispute which I consider to exist, I believe that our ability to effectively exercise our powers as receivers pursuant to clause 13 of each of the Fulham Charge at pages 343 to 346 of "JS-1" and the Portsmouth Charge at page 382 to 385 of "JS-1" may be adversely affected. [94] In particular, I believe that our ability to conduct the sale of Idoport's Claim effectively pursuant to clause 13(f) of each of the Fulham Charge (at page 344 of "JS-1") and Portsmouth Charge (at page 383 of "JS-1") may be adversely affected. I am concerned that the uncertainty created by the abovementioned dispute which I consider to exist would reduce the preparedness of prospective purchasers to deal with me in relation to Idoport's Claim. [95] As at 4 August 2010, I am aware that two interested parties are conducting due diligence into Idoport's Claim, but there has been no offer made by any party to purchase Idoport's Claim since the advertisement inviting expressions of interest in Idoport's Claim was published on 9 October 2009. 118Mr Gleeson submits that this amounts to incomplete or insufficient disclosure insofar as it does not properly disclose that there had been disputes for some time as to whether the Consulting Agreement rights were subject to the charge. He accepts that Mr Sheahan did say that the disputes could bear on whether or not he was the receiver of the excluded property (that being the central issue I had identified in relation to the arguable case of non-disclosure) but says that the affidavit failed to satisfy what was required under the Walter Rau test and that Mr Sheahan should have put before the court the counter material or argument as to the consequence of that issue for the application to issue the examination summonses. It is submitted that Mr Sheahan should either have put the NAB's arguments before the court for consideration or should have served the proposed examinees with the affidavit (a course that Mr Sheahan himself said that he had favoured) and allowed them to be heard. 119Further, it is said that these paragraphs do not draw attention to the position of the unsecured creditors and how they might be affected by the course of action (namely that if the Secured Creditors had the benefit of the excluded property then they would have priority over any proceeds from the litigation and, if not, the unsecured creditors would share with them on a pari passu basis). 120Mr Newlinds submits that the dispute as to title was squarely disclosed in the confidential affidavit as was the fact that the purpose of the proposed examination summonses was to investigate the dispute and to find out whether the consent had been unreasonably withheld. 121In this regard, Mr Sheahan's affidavit outlines the various topics addressed therein and these comprise the events leading up to the winding up of Idoport and the appointment of Mr Steven Sherman of Ferrier Hodgson as the liquidator of Idoport (at [18] to [31]); the involvement of the Secured Creditors in the affairs of Idoport (at [32] -[39]); the extension of the scope of the Secured Property so as to include Idoport's rights to receive monies pursuant to the Consulting Agreement (at [40] - [52]); the events leading up to Mr Smith's appointment as the receiver of Idoport (at [53]-[65]); and, importantly for present purposes, what was described as "the ongoing dispute regarding the receiver's powers to sell Idoport's cause of action against the NAB Parties" (at [66]-[82]). Also outlined (as referred to above) were events surrounding the appointment of the Receivers (at [83] - [87]) and Mr Sheahan then deposed to the reasons (at [88] - [94]) that he and Mr Lock wished to examine the proposed examinees (the proposed examinations being described as "about the reasons for which the NAB Parties have withheld their consent under clause 20.1 of the Consulting Agreement". He then set out the circumstances (by reference to the examinees' respective positions within the NAB) as to why they might be able to give information about the particular affairs of Idoport that he wished to examine. 122While the affidavit did refer to the authorisation from ASIC having been given to the Receivers as being the 'joint and several receivers of Idoport', it nevertheless also elsewhere that the receivership might not be over the whole of the property (insofar as paragraph 16 referred to that authorisation as being given "In our capacity as joint and several receivers of certain property of Idoport...") (my emphasis). 123The "ongoing" dispute regarding the validity and extent of the appointment and powers of the receiver of Idoport was outlined by reference to the particular letters in which that dispute had been articulated. The affidavit extracted particular passages from the letters in which notification of the dispute had been made. 124In particular, paragraph [70] of the affidavit noted the following statements from the 19 December 2008 letter from Freehills (acting for the NAB Parties) to Atanaskovic Hartnell (acting for the Secured Creditors) as follows: In that letter, Freehills advised the Secured Creditors the following in relation to the validity of Mr Smith's appointment and my powers as receiver of Idoport: "Our clients do not accept that Mr Smith has been validly appointed as receiver in relation to Idoport's rights under the Consulting Agreement and do not proposed to deal with him, as purported receiver, in relation to the Consulting Agreement" ; and "2. Assuming that your clients were in a position to appoint a receiver over Idoport's rights under the Consulting Agreement (which is not the case), given the terms of clause 20.1 of the Consulting Agreement, your clients (and any receiver appointed by them) are unable to sell, assign or otherwise deal with such rights (including any asserted causes of action) without our client's consent." (italics as per affidavit) 125Reference was made in paragraph [71] to a letter sent on 23 January 2009 by Freehills to Mr Smith (the then newly appointed receiver) that "our clients do not accept that you have been validly appointed as receiver in relation to Idoport's rights under the Consulting Agreement and do not propose to deal with him, as purported receiver, in relation to the Consulting Agreement." 126Paragraph [74] extracted the following from a letter of 15 October 2009 from Freehills to Mr Smith: clause 20.1 of the Consulting Agreement provides that Idoport cannot charge or otherwise encumber its rights under the Consulting Agreement without our clients' consent. That consent was sought by Idoport and refused. In the absence of such consent, the purported appointment of yourself as receiver over Idoport's rights under the Consulting Agreement is ineffective and you therefore have no ability to deal with Idoport's rights under the Consulting Agreement. 127Copies of the correspondence in question were exhibited to the affidavit. 128Reference was made in para [77] to the following in a letter sent on 30 November 2009 from the liquidator to Mr Smith: It is my view that the charge created to include the previously Excluded Property, in particular the rights under the Consulting Agreement dated 13 September 1996, may not be valid as it has not been registered and, as a result, may not be property which you have a right to sell and: I request you immediately confirm your position in relation to the issues raised above and provide your undertaking that you will not sell the rights under the Consulting Agreement until such time as agreement is reached on the validity or otherwise of the charge. If you have sold the rights under the Consulting Agreement, I seek your acknowledgement that any proceeds are held on trust pending a determination as to the validity or otherwise of the charge. 129Paragraph [80] set out an extract from an 18 January 2010 from the liquidator to Mr Smith, including: I advised that we do not agree with your views set out in this correspondence. Accordingly, we reaffirm our previous requests that any proceeds from the sale of the property that you allege is subject to the charge under which you were appointed should be held on trust pending a determination of the dispute. 130Paragraph [82] referred to a letter of 5 February 2010 from Freehills to Mr Smith stating that: As made clear in prior correspondence, our clients do not accept that you have been validly appointed as receiver in relation to Idoport's rights under the Consulting Agreement. As such, you have no ability to exercise any power of Idoport under the Consulting Agreement, or otherwise take any step with respect to the Consulting Agreement, including no ability to seek our clients' consent under clause 20.1 of the Consulting Agreement. When (over three years ago) Idoport did seek our clients' written consent to a fixed charge being granted over Idoport's rights and obligations under the Consulting Agreement in favour of Portsmouth Partners LLC and Fulham Partners LLC, that consent were refused on reasonable grounds; see our clients' letters dated 7 and 12 February 2007. 131Paragraph [84] referred to a letter sent on 23 June 2010 by the liquidator to Mr Smith again requesting "that any realisation of proceeds from the sale be held on trust pending determination of who is legally entitled to such funds". 132At paragraphs [91] and [92], Mr Sheahan then expressed the view that: [91] In view of the possibility that any causes of action that Idoport may have against the NAB Parties under the Consulting Agreement may be pursued by the ultimate purchaser of Idoport's Claim provided the amount payable under the Gross Sum Costs Order is paid to the NAB Parties, I am concerned that the withholding of consent by the NAB Parties may be motivated by a desire to prevent Idoport from obtaining satisfaction of its entitlements under the Consulting Agreement. [92] Given the NAB Parties' consent under clause 20.1 of the Consulting Agreement is not to be unreasonably withheld, I believe that further information about the circumstances in which the NAB Parties declined to give their consent, including the underlying reasons declining to give their consent, would enable a more comprehensive assessment of, and may facilitate the resolution of, the issue in dispute identified in paragraph 0 above. 133In paragraphs [99] and [100] Mr Sheahan deposed as to his wish to examine the particular persons identified in his affidavit because "they may be able to provide information on the basis upon which....consent under clause 20.1 Consulting Agreement on 7 February 2007 [was withheld], including whether the decision to do so was motivated by the desire to prevent Idoport from obtaining satisfaction of its entitlements under the Consulting Agreement". 134It can be seen from the above, that the dispute as to whether consent had unreasonably been withheld to the extension of the charge to include the rights under the Consulting Agreement was clearly raised in the affidavit filed by Mr Sheahan and the basis on which the NAB Parties, through their lawyers, had articulated that dispute was also clearly drawn to the attention of the court. It is not suggested, for example, that there was any selective quotation from the correspondence that presented a misleading view of the position. Admittedly, there was no reference to the issue as to service of the 9 January letter but the fundamental issue (namely that there was a dispute as to whether the Receivers' charge extended to the rights under the Consulting Agreement that they now wished to sell) was in my view adequately disclosed on the face of the affidavit (and not, unlike the fact of the adverse findings in respect of Mr Sheahan, buried in the voluminous exhibits thereto). 135What was not disclosed (and may well not have been appreciated at that stage) was that it would be contended by the NAB Parties that as a consequence of the fact that there was a dispute as to the appointment of the Receivers to the excluded property (and one that was predicated on the unreasonableness or otherwise of the refusal of consent and the time at which that refusal was given - ie constructive or actual) the use of the public examination procedure was inappropriate (and that any determination of that issue could not properly be effected by means, or with the assistance, of the compulsory public examination procedure because of the circularity argument advanced on this application). 136This raises the question whether and to what extent, on an ex parte application such as this, one must anticipate the defences that might be raised to the application and whether there is a relevant non-disclosure if the particular defence ultimately sought to be raised had not been anticipated and therefore not disclosed at the relevant time. I consider this further below. (v) interested purchasers 137Paragraph 95 of the affidavit, set out above, is said to have been false by omission, the omission being that Mr Sheahan had himself indicated an interest as purchaser (at least up to the time in June/July 2010 when he responded to the call for expressions of interest, requested a copy of the information memorandum and entered into the confidentiality deed acknowledging such an interest). Mr Gleeson submits that even if, by then, Mr Sheahan no longer had any such interest (as he said in the witness box) then it should have been made known that he had had an interest as a purchaser in the claim which he had not in any legal way disbarred himself from further pursuing. 138Mr Newlinds conceded that had this statement (in para [95]) been directly false then this would be a relevant matter (T 121.47) but that it had not been shown to be so and that if the question was whether those persons who had signed up to the relevant document could be said thereby to be carrying on a due diligence then this was a matter of debate and not material. (vi) reasons for wanting to examine 139At paragraph 103 of his affidavit, Mr Sheahan identified the four persons he then wished to examine in relation to the dealings between Idoport and the NAB Parties concerning the charging of the Excluded Property. In relation to one of those (Mr Stewart), he said, at para [104]: I wish to examine the person identified in paragraph 103(i) above because he may be able to provide information on the reasons for which NAB withheld its consent under clause 20.1 Consulting Agreement on 7 February 2007, including whether the decision to do so was motivated by the desire to prevent Idoport from obtaining satisfaction of its entitlements under the Consulting Agreement, in his capacity as the Managing Director and Group Chief Executive Officer of NAB between March 2006 (when the request for consent was first made by Idoport) and February 2007 (when the withholding of consent was communicated to Idoport). 140(I interpose that the speculation as to the motivation of the refusal to consent to which this (and other like paragraphs) refers makes somewhat disingenuous the professed perplexity or lack of understanding on the part of Mr Sheahan in the witness box as to why NAB would not encourage the sale of the asset in order to get back its $70m - T 78 - but no issue was taken as to this evidence.) 141Examined in the witness box by Mr Gleeson as to the basis on which Mr Sheahan had wanted to carry out the examinations, in particular of the managing director of NAB, Mr Sheahan referred to other matters (over which he claimed privilege) from which he said that he had inferred that the claim might have gone to the Board. Mr Gleeson submits that this material was not put before the Registrar or the Court and thus no assessment could be made by the Registrar as to those reasons for seeking to examine the managing director. 142In Mr Newlinds' submission, it would have been obvious to the registrar why persons of this seniority would have been the subject of the examination summonses - namely that there would have been an assumption that as high-level executives and board members they were involved in the decision. (Mr Sheahan, in a perhaps not so responsive answer, at one stage referred to a sum of money that he had understood was at one stage on offer for the compromise of the proceedings, perhaps as indicating that the matter would have been considered and dealt with at a senior bank level). 143Whether taken collectively or individually, Mr Gleeson submitted that the above matters were serious and material non-disclosures. Mr Gleeson further submitted that Mr Sheahan's conduct showed a carelessness in the preparation of his affidavit; an over-reliance on his lawyers (without actively turning his mind to what was disclosed - T98.10) and a failure to comply with his duty on an ex parte application to put before the court everything it needed to know on both sides of the potential argument. 144It was submitted that the orders should therefore be set aside as of right. 145Mr Newlinds, in response, suggested that there was a lesser onus on the moving party in other ex parte applications (such as applications for injunctive relief or the like where it was said that serious consequences would flow from the making of the order) than was the case where an ex parte application was made to a registrar in chambers without oral submission. He submitted that the observations of Allsop J in Walter Rau needed to be applied in the context of the particular application and that to adopt the standard said to be required by Mr Gleeson would treat an affidavit of the kind required by s 596C as a submission document. 146In that regard, I note that in Arab Business Consortium International Finance and Investment Co v Banque Franco - Tunisienne [1996] 1 Lloyd's Rep 485, Waller J (at [490]) observed that the form of the ex parte application was relevant to the obligation of disclosure. His Honour referred with approval to the observations of Hobhouse J in The Jay Bola [1992] 2 Lloyd's Rep 62 at [67]: There is a duty of disclosure on all ex parte applications but the extent of the duty and the gravity of any lack of frankness will depend in any given case on the character of the application. At one end of the scale there are Anton Piller orders and Mareva injunctions where the consequences of the order may be unpredictable and irremediable and very possibly most serious for the proposed defendant: there the very fullest disclosure must be made so as to ensure as far as possible that no injustice is done to the defendant. At the other end of the scale are minor procedural applications where there may be no risk at all of prejudice, or at least none that cannot be fully made good on an order in costs. Where the application is, as in the present instance, one of a character which would not prejudice the relevant party's position...and would not cause them any loss or inconvenience that would not fully be made good by an order in costs, the duty of disclosure does not have such an extreme extent. 147That does not appear to accord with the approach followed in this Court. So, for example, in Mendarma (at [45ff]) White J said: The second ground relied on is non-disclosure of all material matters in the affidavit in support of the application. In my view, there is substance to the second ground of challenge. In Re Southern Equities Corporation Ltd (in liq); Bond & Caboche v England (1997) 25 ACSR 394 (a decision of the Full Court of the Supreme Court of South Australia), Lander J, with whom Cox and Bleby JJ agreed, said (at 422-423): "An application for an examination summons is made ex parte. Consequently there is a heavy obligation upon the person applying for the examination summons to make full and frank disclosure of all matters which may impact upon the decision to summon a person for examination about a corporations examinable affairs . (my emphasis) There can be no doubt, in my opinion, that a person who makes an application of this kind is under an obligation to bring all facts and material to the court's attention which might bear upon the order to be made. The applicant has no lesser obligation than that imposed upon a party seeking an injunction ex parte. Indeed, in my opinion, the obligation for frankness and candour is even greater in an application of this kind. That is because, unlike on the return of an interlocutory injunction obtained ex parte, on the return of an examination summons the material supporting the application is not ordinarily made available to the proposed examinee. Because the proposed examinee, ordinarily, is not privy to the information or material which was used to support the application for the examination summons, the person applying for the examination summons has the very highest obligation relating to frankness and candour and any breach of that obligation, in my opinion, ought to be viewed very seriously by the court. The obligation is to provide to the court all material which might impact upon the order sought, including all material which might lead the court to refuse the application. The applicant must act in the place of the proposed examinee and therefore draw to the attention of the court anything which might lead the court to refuse the application ". (my emphasis) 148In Walter Rau Neusser Oel Und Fett AG v Cross Pacific Trading Ltd [2005] FCA 955, Allsop J, as his Honour then was, said at [38]: In an ex parte hearing, it is the obligation of the party seeking orders, through its representatives, to take the place of the absent party to the extent of bringing forward all the material facts which that party would have brought forward in defence of the application : Thomas A Edison Ltd v Bullock (1912) 15 CLR 678 at 681-82 per Isaacs J. That does not mean stating matters obliquely, including documents in voluminous exhibits, and merely not mis-stating the position. It means squarely putting the other side's case, if there is one, by coherently expressing the known facts in a way such that the Court can understand, in the urgent context in which the application is brought forward, what might be said against the making of the orders . It is not for the Court to search out, organise and bring together what can be said on the respondents' behalf. That is the responsibility of the applicant, through its representatives. (my emphasis) and then at [46] - [48]: I take the relevant principles of ex parte disclosure to be as discussed by Isaacs J in Thomas Edison and to be in the discussion by Mahoney AP in Gerrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662 at 676-77 and in the cases there referred to by his Honour. The high standard of candour and the heavy responsibility on those who seek ex parte orders is especially the case where (as it was here, and as will often be the case) a discretion is involved. The judge must be given the opportunity of analysing the facts from the perspective of any available case which can be put, or anticipated to be put, by the absent party. That was not done here. Facts were identified, but not in a fashion which illuminated with any clarity the known facts and not in a coherent and ordered way as plainly would have been done by the absent party. As the Full Court said in Town & Country v Partnership Pacific (1998) 20 FCR 540 at 543: The rationale behind the principle is clear; it is of the utmost importance in the due administration of law that the Courts and the public are able to have confidence that an ex parte order has been made only after the party obtaining it has complied with its duty to disclose all relevant facts. 149Therefore, I do not accept that there was a lesser standard of candour in the present case. Further, the duty of disclosure in general terms is such that even if something has been forgotten a failure to disclose it may be sufficient to lead to the order being set aside (see Clifton v Robinson (1853) 16 Beav 355; 51 ER 816) . 150Mr Newlinds further submitted that the non-disclosure had to be material and that should be tested by asking whether the disclosure of the information would have made a difference to the Registrar's decision. While I accept the first part of the proposition I do not consider that the latter accords with the view taken in the authorities. 151In Mendarma at [58] White J said : In my view, the non-disclosures I have referred to were material to the decision of the Registrar to summons the applicants for examination. The matters may have affected that decision . It does not follow that the summonses should necessarily be set aside. However, as Lander J said in Re Southern Equities Corporation, in the passage I have quoted, the Court regards a breach of the obligation to make full disclosure seriously. There is no basis to infer in this case that the non-disclosure came about through an error of judgment as to the materiality of the matters not disclosed. Nor am I in a position to decide whether, had those matters been disclosed, the decision would have been the same . Whether, on a fresh application, either the Registrar or a Judge would make an order for the issue of a summons could well depend upon the further enquiries to which I have referred. Of course, the discharge of the examination summonses is not a bar to the liquidators' applying afresh on an affidavit which makes full disclosure of all material matters. (my emphasis) 152Turning then to the question of improper purpose, Mr Gleeson submitted that the purpose put before the court on the present application could fairly be characterised as one pursuant to which information would be sought to assess the unreasonableness of the withholding of consent, in order to assist the sale of the cause of action by the Secured Creditors which might then lead to the costs orders being paid and the barring orders lifted, and which might then lead to a return to creditors (secured and perhaps unsecured). 153It was submitted by Mr Gleeson that there were a number of matters that meant that such a purpose was outside the scope of s 596B. 154First , it was said, relying on Excel , that this is in truth a private interest being pursued - namely, to extend the title of the Secured Creditors (and not in the interests of the corporation, its contributories and creditors). 155In Excel ( at p 92), the distinction between the pursuit of private interests and interests for the benefit of those contemplated in the section was discussed: Subsequently Waddell CJ in Eq in Re Laurie Cottier Productions Pty Ltd (In liq) (1992) 9 ASCR 513 referred with approval to the comments of McLelland J in Re BPTC (supra). Again the context of the comments of Waddell CJ in Eq was very different to the present case. That was a case of an examination being conducted by a liquidator who was funded by a substantial creditor. The creditor had threatened proceedings against the examinee. The examinee was a director of the company in liquidation and the allegation was that he was a party as a director to incurring the creditor's debt when there were no reasonable grounds to expect that the company would be able to pay all its debts as and when they became due. It was, as his Honour observed necessary to distinguish, on the one hand, between the purpose of the creditor in funding the examination, its motives being to advance its own interests, and the purpose of the liquidator in conducting the examination, on the other. There was nothing to suggest that the liquidator was seeking to conduct the examination in the interests of the creditor funding the investigation rather than in the interests of other creditors or for the purpose of finding out the circumstances which led the company into its financial difficulties. As his Honour said, that was sufficient to dispose of the application to set aside the examination order. 156In Excel , the court also said of the question of improper purpose: Street J said in Re Hugh J Roberts Pty Ltd (In liq) [1970] 2 NSWR 582 at 585, in a passage quoted with approval by the Court of Appeal in the HongkongBank case (at 518) and by Mason CJ in Hamilton v Oades (at 497): A liquidator needs information concerning his company just as much in connection with current or contemplated litigation as in connection with other aspects of its affairs. In using the statutory machinery of private examination he will in many cases be gathering evidence as an ordinary and legitimate use of this procedure ... In my judgment it is immaterial in basic substance whether the private examination is sought to be used by a liquidator to gather information in connection with proceedings he believes he might be able to bring, proceedings he contemplates bringing, proceedings he has decided to bring, and proceedings he has already brought. There is no presently relevant distinction in substance between gathering information referable to commencing proceedings and gathering information referable to continuing proceedings. On the same page Street J counselled liquidators not to be diffident in using a private examination for the ordinary and legitimate purpose of gathering in information. His Honour warned, of course, that the process should not be abused, giving, as an illustration, an attempt, where litigation was either contemplated or commenced, to summon the prospective or existing defendant's probable witnesses and examine them simply for the purpose of destroying their credit. So to do would involve using the examination process to obtain a forensic advantage in litigation, whether or not that litigation was yet commenced. Another, albeit related, case of abuse would be the conduct of an examination to enable a "dress rehearsal of the cross-examination" to be instituted of a trial impending or contemplated. Other examples may be the use of an examination summons to obtain de facto discovery where a discovery order had been refused in proceedings already on foot. It is neither possible nor desirable to catalogue all the circumstances where use of an examination summons might constitute an abuse of process. Whether there will be, in a particular case, a use of the process or an abuse of it will depend upon purpose rather than result . The consequence of an examination may well be that the examiner has conducted a "dress rehearsal" of cross-examination which may take place in a subsequent trial. The fact that the trial has commenced, or is contemplated, may throw light upon the purpose. But merely because other proceedings had been commenced or are contemplated would not involve, of itself, an abuse of process. This follows having regard to the nature of the investigative process which could throw light on the question, inter alia, whether there was evidence which would warrant a liquidator, for example, proceeding against an examinee. But it may be quite a different question where proceedings contemplated or instituted are not proceedings to be brought by the company, but proceedings brought by some other party for the advantage of that party rather than the company. For example, it would be an abuse of process for a creditor approved by the Commission for the purposes of s 597(1) to obtain an examination summons to conduct an examination for the purpose of obtaining evidence in proceedings which the creditor proposed to bring against the examinee for defamation. That would be a purpose completely foreign to the power of examination which is ultimately in aid of the company itself and not the personal advantage of the person seeking to conduct the examination. 157Mr Newlinds submits that one must approach this issue in a commercially sensible way - that it would be obvious to the registrar that a receiver appointed by a secured creditor would be seeking to recover moneys for the benefit of the secured creditor (and that since the unsecured creditors will recover nothing if the gross sum costs order is not paid and there is no recovery on the substantive claims against the NAB Parties, then the fact that this process may increase the debts of the company is not relevant). 158Secondly , reliance was placed by Mr Gleeson on the circularity argument - namely that it is not proper to use the examination process to seek to establish title to an asset as against not only a third party but also the liquidator who is in charge of the company property. In that regard, it is said that the submission put by Mr Jucovic (that reliance can be placed on the use of a power of attorney contained in the charges) cannot extend the property over which the charge is granted. Mr Gleeson refers to Londish v Sheahan & Lock in Re Valofo Pty Ltd [2009] NSWSC 1175 at [17] as supporting the view that if the Receivers had not been properly appointed they have no basis to use the examination summons procedure. There, Brereton J said: As the Administrators have not been duly and validly appointed it follows that they are not entitled to conduct the proposed examination of the applicant nor to have issued the orders for production made in connection with the examinations, which should also be set aside. 159In this regard, Mr Newlinds submitted that the Receivers are entitled to utilise the examination summons process in order to investigate whether there is a factual basis for the claim that they have no entitlement to deal with the asset comprised by the Consulting Agreement and, now that there are declaratory proceedings on foot, to determine whether they wish to defend those proceedings. (Mr Newlinds clarified that submission as not going to whether there could properly be a defence to the declaratory proceedings at all but, rather, as to whether the Receivers wished to incur the cost of defending those proceedings.) 160Mr Newlinds submitted that a complete answer to the circularity argument was that it (wrongly) starts from the premise that the receiver presently does not have any entitlement to investigate whether the asset is within the charge. Mr Newlinds, as did Mr Jucovic, points to the fact that the Receivers are presently appointed to the Secured Property under the charges (whether or not that includes the Consulting Agreement rights) and that even if the extension of the charge amounted to a breach of the Consulting Agreement as between the Secured Creditors and Idoport there is an effective assignment of the rights. Secondly, Mr Newlinds submitted that if there is an issue as to the timing of the extension of the charge over the excluded property that can be remedied by the Receivers using their powers under the charge (so, for example, to make a further request for consent which it was submitted the NAB Parties would again be likely to refuse). Thus it was submitted that what was being done was not beyond the examinable affairs of the company and the circularity argument should not be accepted. 161Thirdly , it was said by Mr Gleeson that unless and until it is proved that the 9 January 2007 notice was validly given (and that there had been a constructive refusal of consent by the NAB Parties at that stage) then the Receivers do not currently have any title. (Mr Newlinds' response to this is covered by the matters put in answer to the circularity point.) 162Fourthly , it was submitted by Mr Gleeson that in the absence of evidence as to anyone willing or able to pay the gross sum costs order, the exercise sought to be embarked upon by the examination summonses is futile. In response to this Mr Newlinds submitted that the fact that Mr Sheahan was not aware of a particular person willing and able to pay the gross sum costs order at the time the application was made was not a matter required to be disclosed (Mr Sheahan having given evidence as to his awareness of persons who might be prepared to do so) as it was hypothetical but that this does not render the process futile (as there is a belief by Mr Sheahan that if the title issue is able to be resolved then there would be potential for sale of the cause of action). 163As to the requirements of the section, the issue was raised as to whether what was sought to be examined upon was in fact within the section (ie within the examinable affairs of Idoport. Reliance was placed by Mr Gleeson on what was said by Basten JA in paragraphs [39] to [43] of Meteyard : A consideration of the terms of s 596B(1)(b)(ii) suggests that the scope of the power is delimited by four considerations, namely that: (a) the proposed examinee may have "information" to give; (b) the information must be relevant in the sense that it is about "examinable affairs of the corporation"; (c) because the purpose of the section is to allow the receivers and managers to be informed of facts about the affairs of the company, the information should be information not within their knowledge, although the extent of knowledge will not be precisely definable, and (2005) 65 NSWLR 36 at 47 (d) there must be a factual basis for the Court to form a reasonable state of satisfaction that a proposed examinee may have relevant information. The results of an investigation into an incident could affect the payment made to the company, or the decision to refuse a payment. A refusal may, and has in the case of the joint venture partner, Theiss Coal, led to litigation between the insured and the insurer. One possible outcome of such litigation is an order of a court that the insurer make a payment to the company. However, if that flowed from a judgment of the court, it could not properly be said that the consideration by the court of the circumstances of the claim fell within the examinable affairs of the company. That is because the court is exercising its own powers independently of the company, albeit the result may have important consequences for the balance sheet of the company, and even its solvency. That consideration may be extended: there are a large range of actions by strangers to the company which may affect its affairs, including the value of its assets. The imposition of more stringent statutory regulation of mining operations in the interest of safety, and the decisions of a local government authority in relation to the zoning of the land to be used for mining, are but two examples. Even if the company had an entitlement to be heard in relation to a rezoning proposal, the consideration of the proposal by the local government authority would not constitute part of the affairs of the company which would be examinable under s 596B. Of course, the corporation's reaction to such external events would be capable of constituting part of its own affairs. This distinction, as the claimants noted, derives support from the paragraph in the definition of "examinable affairs" in s 9 of the Corporations Act relating to the affairs of a connected entity of the corporation. Whilst, as noted above, there is considerable overlap between par (a) and par (b) of that definition, par (c) identifies a separate class of factors. The definition of "connected entity" in s 9 picks up the concept of a related body corporate as defined in s 50 and a connected entity as defined in s 64B. One aspect of the definition of a connected entity is a body corporate over which the corporation can exercise control or material influence: another is a body corporate which is indebted to the corporation: s 64B(1)(a) and s 64B(1)(f). In relation to such bodies, the business affairs of the body can be examined if they are or appear to be "relevant to" the corporation or the corporation's examinable affairs. This provision confirms the conclusion that the internal operations or activities of another person or corporation will not fall within the examinable affairs of the corporation simply because they have the potential to affect the value of the assets of the corporation. In other words, although the "property" of the corporation may constitute part of its examinable affairs, the phrase "information about" such property should not be read so broadly as to include "any information which may affect the value of the property". Application of these principles would suggest that, at least where a decision has been made and communicated, the internal assessment of information by advisers to the insurer fall outside the category of "examinable affairs" of Southland Coal, even though the result of that assessment may be relevant to the decision taken by the insurer and hence to the value and even the solvency of Southland Coal. Such an assessment may need to be distinguished from the insurer's decision with respect to the claim and its grounds for refusal, if it is (2005) 65 NSWLR 36 at 48declined. And an assessment should be distinguished from the information being assessed and, arguably, the fact that the insurer had, or did not have knowledge of particular information. 164It was submitted by Mr Gleeson that the decision by the NAB parties to refuse consent to the extension of the charge (though it may affect the value of Idoport and may affect the affairs of the company) does not fall within the examinable affairs of Idoport. Insofar as the examinations seek to focus on the internal decision making process of the NAB Parties, through the NAB Executives, I agree. 165In considering whether there was there proposed to be an enquiry into examinable affairs , in Meteyard , Basten JA said (at [47]): Returning to the scope of the power conferred by s 596B, the aspect of the examinable affairs of the company of primary relevance in the present circumstances is sufficiently encapsulated in the concepts of management and administration identified in par (a) of the definition of "examinable affairs". Part of the management and administration of Southland Coal will be deciding whether to institute proceedings against QBE in relation to a denial of liability under the insurance policy. Information relevant to that decision forms part of the examinable affairs of Southland Coal. Such information will, consistently with the authorities, include: (a) information necessary to assess the justification or otherwise of the denial, and (b) in an appropriate case (of which this is not one) information as to the worth of the potential defendant in such proceedings. Such material falls within the proper field of examinable affairs described by Street J in Re Hugh J Roberts Pty Ltd (In Liq) and the Companies Act (at 540; 584), quoted with approval by the Full Court of the Federal Court in Grosvenor Hill (Qld) Pty Ltd v Barber (1994) 48 FCR 301 at 309: "The liquidator is given by the statute this special authority to proceed by way of private examination to obtain information which he needs for the due winding up of the company, the affairs of which he has the responsibility of administrating." 166Here, what is sought to be examined upon are the internal workings of the NAB Parties or their corporate minds. I do not accept that these fall within the examinable affairs of Idoport for the purpose of the section. 167As to the question of purpose, in Meteyard at [44], Basten JA said: There is, in addition, an established line of authority to the effect that an eligible applicant under s 596B may examine a potential defendant, or an existing defendant, in relation to proposed or actual litigation, in order to determine whether the defendant has sufficient assets to meet an adverse judgment, if unsuccessful in the litigation. On the other hand, the authorities draw a line between those possible topics of inquiry and use of the examination process to determine the strength or weakness of the corporation's case, or its opponent's case, in relation to the dispute. In the recent decision of the Full Court of the Supreme Court of South Australia, Re Normans Wines Ltd (Receivers and Managers appointed) (In Liq); Harvey v Burfield (2004) 88 SASR 541 at 552 [41], Mullighan J quoted without criticism, the following statement of the trial judge: " '[41] The authorities establish that an improper purpose includes a purpose of using the examination as a dress rehearsal for cross-examination, or for the purpose of destroying the credibility of the examinees or witnesses who might be called for the examinee in substantive proceedings, or for the predominant purpose of obtaining a forensic advantage not available from ordinary pre-trial procedures, or simply to cause undue inconvenience or embarrassment to the examinee or to inflict costs'." 168It was submitted that in circumstances where there has been a dispute since at least late 2008 when Mr Smith was appointed, as to the title issue, the appropriate means of determining that dispute is not by invoking the examination process but by a declaratory suit of the kind that could have been brought by the Receivers under s 418A of the Corporations Act and that has now been brought by in the proceedings commenced by leave at the outset of this application. 169This raises the question as to the predominant purpose of the applications and whether that was impermissibly to obtain a forensic advantage. 170In Excel at (90-91): The Australian jurisprudence eschews the English distinction in favour of the more useful test of whether the person seeking the examination order has the purpose of obtaining a forensic advantage not otherwise available: see per Gleeson CJ in HongkongBank of Australia Ltd v Murphy (1992) 28 NSWLR 512 at 519. However, as Gleeson CJ also points out: ... the possibility that a forensic advantage will be gained does not mean that a making of an order will not advance a purpose intended to be secured by the legislation . (my emphasis) 171As to the subjective purpose of the examinations, Mr Sheahan gave evidence, in effect, that his firm adopts the examination procedure as a more expeditious and efficient procedure as a matter of course. (That would be of some concern if, by this, it was suggested that there had not been careful consideration as to the need to invoke the procedure in relation to each proposed examinee, but I understood Mr Sheahan there to be speaking of a general philosophy as to how best to determine issues arising in the context of a receivership where information as to the examinable affairs of the corporation was sought.) 172As to the objective purpose, Mr Newlinds submits that it has to be the predominant purpose and that the mere fact that there may be a collateral advantage or by-product from the course sought to be adopted that works in the Receivers' favour is not sufficient. It was submitted that there cannot be found a common purpose to obtain an unfair advantage through this process and that what is sought is a perfectly proper (and common) course of ascertaining whether the Receivers have something of value to sell. Mr Newlinds emphasised that what is required is that there be an improper forensic advantage and he submitted that here there was not such an advantage. 173In Re Excel at p 89, the Court emphasized that the purpose in question must be the predominant purpose: It is apparent that the question whether there is, in a particular case, an abuse of process will be a question which will depend upon the purpose of the applicant seeking the order of the court and the circumstances of the case. For an abuse to be found it will be necessary that the offensive purpose be, at the least, the predominant purpose: see Burns Philp & Co Ltd v Murphy (supra) at 732 and Williams v Spautz (supra) at 529. 174As to the circularity issue, insofar as Mr Newlinds submitted that the NAB Parties' position was premised on an assumption (that he and Mr Jucovic maintain is incorrect) that there was no title absent consent by the NAB Parties, in contrast it seemed to me that the Receivers' position was premised on there being an assumption that there was a question as to title that the Receivers were entitled to resolve by invoking a procedure in their capacity as receivers of at least some of the assets of the company (even though there may be a dispute as to the precise assets the subject of the proposed examinations). Mr Newlinds submitted that the comments made in para [43] of O'Brien v Wily were equally applicable in the present case. 175In that regard, it seems to me that there is a distinction between invoking the examination summons process in order to determine the prospects of success of litigation on foot (or contemplated) and invoking the process in order (from a practical point of view) to determine the very issue in question - namely, whether there is title to the asset so as to give the Receivers and interest in the subject matter of the proposed examinations. 176Finally, as to discretion, Mr Gleeson raised the following matters: first, that the asserted purpose is to assist the Secured Creditors to recover funds invested by them in the earlier proceedings that were themselves an abuse of process; secondly, that the intent of the barring order is to prevent the NAB Parties being vexed with Idoport claims until the gross sum costs order is paid (and that even if what is sought by the examination summons process is the right side of the barring orders, in the absence of evidence that anyone is willing and able to meet those costs orders, the coercive powers of the Court should not be made available to the Secured Creditors); thirdly that the scale of the summonses is oppressive and the reasons for pressing the summonses against the 15 NAB Executives cannot be tested as they depend in part on material over which privilege is claimed and not put before the court; and finally, that Mr Sheahan has not demonstrated himself to be an impartial person to be entrusted with such powers. 177In relation to the last submission, apart from the criticism made as to the care (or, more precisely, the lack thereof) in relation to the preparation of his affidavit evidence, Mr Gleeson pointed to two matters arising from Mr Sheahan's evidence in the witness box: first, his statement that he was not interested in the position of unsecured creditors (though he immediately qualified that by reference to the acknowledgement that, as receiver, he should not do anything detrimental to the interests of the company) (T 79) ( by which I had understood Mr Sheahan to be seeking to emphasise that his principal duty was to the Secured Creditors pursuant to his appointment and on that basis I draw no adverse inference from this evidence); and, secondly, the evidence (on which I gave Mr Gleeson leave pursuant to s 38A(1) of the Uniform Evidence Act to cross-examine) that Mr Gleeson correctly characterised as a slur on the integrity of the liquidator. 178At T 99.20, Mr Sheahan (in what was later described by his Counsel as a brain explosion) when asked in cross-examination by Mr Newlinds what his view was as to whether there was any prospect that the liquidator might try to sell the rights under the consultancy agreement (Mr Newlinds having earlier taken him to, and tendered, a copy of minutes of a meeting of creditors of Idoport of 8 March 2010 in which the chairman, Mr Sherman was recorded as having advised that he was considering options in relation to a possible acceleration of the finalisation of the liquidation) said: My view your Honour is that it is the most commercial, it's almost commercial suicide for certain accounting and legal practices to act against the interests of certain banks and other financiers and that if they act generally, generally act otherwise than in accordance than in that particular Bank's interest they will be summarily dismissed from the Bank's panel of professional advisors. I am not trying to be specific or personal but - 179That evidence, particularly in light of the fact that Mr Sheahan had had no communications directly with Mr Sherman since his appointment and had not asked him what his intentions or capability would be in terms of realising the asset) was said by Mr Gleeson to reflect the same partiality or bias as was the subject of the adverse findings made by Young J in Market Holdings . 180True it is that Mr Sheahan also said (on further examination by Mr Newlinds) that there had been no contact by Mr Sherman suggesting that the latter would rather bring the case (T 102.13). However, it seemed to me that by his earlier answers (even though Mr Sheahan denied that he had intended to refer to Mr Sherman as within that group of 'suicide candidates' - "Not Mr Sherman specifically , no" - T 101.3 and denied that he had intended to convey that the liquidator of Idoport was a person within that group of non-independent people - " Not specifically , your Honour" - T 101.34), in the context of the question that had been put to Mr Sheahan, his response could only fairly be seen as implying that Mr Sherman might have a commercial reason not to seek to sell the rights under the Consulting Agreement or to bring the case against the NAB Parties. Mr Newlinds quite properly did not attempt to suggest otherwise. I must admit that the response had the flavour of someone inclined to take an adverse view of the position of parties in the position of the NAB Parties and perhaps to indicate some degree of personal emotion or ill feeling in relation to this case (which may not be surprising given that Mr Sheahan has personally been the focus of judicial criticism as to his conduct in the proceedings). His reference to 'punitive' costs orders in correspondence with the Secured Creditors' representatives is also reflective of this. I think this evidence is capable of giving rise to an inference of partiality. 181While I do not ignore the fact that this seems to be a case in which there have been heated emotions on the part of the party seeking to invoke the coercive powers of the Court against senior executives of an organisation amongst those apparently accused of being prone to exert commercial pressure on liquidators, and that this evidence is indicative of partiality on Mr Sheahan's part, ultimately it is not necessary to make any finding on this issue as I am able to decide this application on other grounds.

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