119 Westpac argued that its participation in the conduct of the litigation was not shown to be a corruption of the Court process. Indeed, it pointed to the terms of the litigation agreement as protecting the process against any abuse (Fostif 229 ALR at 82 [93]). Westpac relied on the trial judge's findings that under the litigation agreement:
· Portfolio Services remains bound by the usual obligations of a litigant;
· the litigation '… is being conducted by a firm of experienced solicitors who have a fiduciary duty to both [Portfolio Services] and Westpac';
· 'that firm's conduct of the litigation is subject to scrutiny by another firm of experienced solicitors';
· there was no greater possibility of misconduct or unfairness in this proceeding than in any other (Emphasis added.) ([2005] FCA 1640 at [56]).
120 The trial judge also found that Westpac had a genuine commercial interest in the proceedings. He said ([2005] FCA 1640 at [53]-[54]):
'53 The economic reality is that the applicant's right of action against the [vendors], for whatever it may be worth in dollar terms, came into existence as an asset of BT Australia, the then owner of the applicant. An agreement was made to sell the applicant company, but not its interest in the right of action, to Chase Manhattan. It was intended that this interest would remain an asset of the BT group of companies. That group is now owned by Westpac.
54 The right of action is not able to be exploited on behalf of the BT group of companies (and so Westpac) in the manner contemplated when the applicant company was sold to Chase Manhattan. That proposition is common ground between the parties. However, it is a proposition that is based upon technical rules about the assignability of causes of action which, on their face, seem to have no relevance to the question whether there is an abuse of the process of the Court. Fostif [63 NSWLR 203] and Narui ([Project 28 [2005] NSWCA 240]) emphasise that, in a case such as this, courts should focus their attention on that question.'
121 The vendors criticised the trial judge's findings that the solicitors' firms were 'experienced' as justifying his conclusion that there would be no real possibility of litigious misconduct arising from the proceedings being conducted under the conditions contemplated in the litigation agreement. While his Honour did refer to the experience of each firm of solicitors, I am not satisfied that this was a determinative factor. Rather he saw the presence of solicitors generically, as officers of the Court, in the positions contemplated in the litigation agreement as protective of the process of the Court. There was nothing about those particular solicitors in the evidence which suggested that they were acting or would act inappropriately.
122 It would not be appropriate, in the ordinary case, for the experience or otherwise of either the solicitor on the record, or if one were engaged, as here, a solicitor to oversight another solicitor, to be the subject of judicial consideration. The Court could not properly be called on to say that a solicitor was or was not experienced enough to act in either the role of solicitor on the record or overseer. Admission to practice ordinarily gives a legal practitioner a right to appear in courts on behalf of clients. The Court ought not to be called on to engage in a speculative or evaluative process of assessing whether that right is sufficient in cases of litigation funded by third parties.
123 The trial judge preferred the approach of the Court of Appeal of the Supreme Court of New South Wales in Fostif (2005) 63 NSWLR 203 and in Project 28 [2005] NSWCA 240 to that of the Full Court of the Supreme Court of Western Australia in Clairs Keeley (A Firm) v Treacy (2004) 29 WAR 479. In the Full Court, Steytler, Templeman and McKechnie JJ said (Clairs Keeley 29 WAR at 502 [125]) that important considerations in balancing the competing interests for the purpose of considering the tendency of the funding arrangements to interfere with the processes of the Court were the degree of control exercised by the funder and whether the funded party would be in a position to benefit from a successful outcome. In contrast, the Court of Appeal decisions recognised that the 'basal inquiry should be whether the role of the particular funder has corrupted or is likely to corrupt the processes of the Court to the degree that attracts the extraordinary jurisdiction to dismiss or stay permanently for abuse of process': per Mason P in Fostif 63 NSWLR at 234 [132]. The latter approach conforms with the obiter, but considered, views of Gleeson CJ together with Gummow, Hayne and Crennan JJ, and Kirby J in Fostif 229 ALR 58.
124 The issue of Westpac's position in these proceedings is different from those of the funders in Clairs Keeley 29 WAR 479, Fostif 63 NSWLR 203 and 229 ALR 58 and Project 28 [2005] NSWCA 240. It is not only that Westpac controls the litigation; it is that Portfolio Services has no interest in it and has received no benefit from Westpac (in contrast to cases where an insured receives a benefit from an insurer, or an assignor from its assignee or a principal debtor from its surety and in the other examples cited by Ipp JA in Project 28 [2005] NSWCA 240 at [64]-[77]) and had no relationship with Westpac at the time of the alleged wrongs or the incurring of loss.
125 But, in the passage cited above, the trial judge said that Westpac's interest was sufficient and that the legal rules which had the effect of preventing any assignment by Portfolio Services were irrelevant. Champerty is a particular form of maintenance or financial assistance given to a party to litigation. Champerty consists in the maintainer providing the assistance in consideration of promise by the party maintained to give the maintainer a share in the proceeds or subject matter of the action (Trendtex Trading Corporation v Credit Suisse [1982] AC 679 at 694 H per Lord Wilberforce).
126 Thus, in cases where the agreement for a stranger to take a share in the proceeds of an action involved the stranger in providing evidence to support the maintained party's case, the Courts saw that there was a real danger of perjury, from the procuring of fabricated evidentiary support. Perjury, of course, would be capable of perverting the course of justice and thus abuse the process of the court: Sprye v Porter (1856) 7 E&B 58 at 81 per Lord Campbell CJ, Coleridge, Wightman and Erle JJ; Stanley v Jones (1831) 7 Bing 369 at 379 per Tindal CJ.
127 Such agreements were void and illegal. That status is preserved today despite the abolition of the crimes of maintenance and champerty: s 6 of the Maintenance Champerty and Barratry Abolition Act 1993 (NSW); see Rynell v Sprye (1852) 1 De G M&G 660 at 677 [42 ER 710 at 717] per Knight Bruce LJ; James v Kerr (1889) 40 Ch D 449 at 456-459 per Kay J; Rees v De Bernardy [1896] 2 Ch 437 at 446-447; Halsbury's Laws of England (2nd ed) Vol 1 pp 72-73 [89]-[90]. In Fischer v Kamala Naicker (1860) 8 Moo Ind App 170 at 187; [19 ER 495 at 501], Sir John Coleridge speaking for a Judicial Committee including Knight Bruce and Turner LJJ, said that the qualities attributed to champerty or maintenance by English law were as follows:
'… it must be something against good policy and justice, something tending to promote unnecessary litigation, something that ina legal sense is immoral and to the constitution of which a bad motive in the same sense is necessary. It was necessary, therefore, to look at the substance of the transaction, and not merely the language of the instruments.' (Emphasis added.)
128 The law relating to champerty and maintenance has continued to develop and narrow away from its ancient origins. That process has been continual and necessary to ensure that, as Gummow, Hayne and Crennan JJ emphasised in Fostif 229 ALR at 82 [93], the principles apply to abuses of the processes of the Court as viewed through contemporary eyes and reflect the requirements of justice in present social conditions. So, in Ram Coomar Coondoo v Chunder Canto Mookerjee (1876) 2 App Cas 186 at 208-209 the Privy Council observed that the origins of the English statutes (e.g. the Statutes of Champerty 3 Edw 1, c 25, 28 Edw 1, c 11; 33 Edw 1, st 3) were mainly to prohibit high judicial officers and officers of state from oppressing the King's subjects by maintaining suits or purchasing rights in litigation. Their Lordships observed that those laws were of a special character directed against abuses which may have been prevalent when they were enacted but had fallen into comparative desuetude. They went on to hold that the law of India was different and that a fair agreement to supply funds to carry on a suit in consideration of a share of the property, if recovered, was not to be regarded, of itself, as opposed to public policy (Coondoo 2 App Cas at 210). But they also identified the potential areas of abuse as including extortionate or unjust agreements which were inequitable to a party (cp: Blomley v Ryan (1956) 99 CLR 362; Commercial Bank of Australia Ltd v Amedio (1983) 151 CLR 447; Bridgewater v Leahy (1998) 194 CLR 457): They continued that agreements:
'… made, not with the bona fide object of assisting a claim believed to be just, and of obtaining a reasonable recompense therefor, but for improper objects, as for the purpose of gambling in litigation, or of injuring or oppressing others by abetting and encouraging unrighteous suits, … [would] be contrary to public policy …'
129 And in his speech in Giles v Thompson [1994] 1 AC 142 at 153C-G, Lord Mustill argued that the principles in modern times now operated only in two aspects, one to prevent a solicitor bargaining for a share in the proceeds of litigation in which he or she was acting, and the other to reflect a denial of the capacity to assign a 'bare right of action'. For my part, that classification is too narrow for it omits the categories of abuse identified in the passages I have quoted above from Fisher 8 Moo Ind App at 187 [19 ER at 501] and Coondoo 2 App Cas at 210.
130 Gummow, Hayne and Crennan JJ discussed in Fostif 229 ALR at 80-83 [83]-[95], Gleeson CJ agreeing at 59 [1], the funding and others arrangements which were intended to yield the funder not only a significant profit but control of the litigation. They pointed out that neither of these factors, of itself, warranted a conclusion that there was a likelihood or tendency of abuse of the Court's processes (229 ALR at 82 [91]-[93]). They referred to Trendtex [1982] AC 679 saying (229 ALR at 79 [81]):
'[81] It is important to notice that the House of Lords' conclusion in Trendtex (that the provision permitting sale of the cause of action was contrary to public policy - as "savour[ing] of champerty" and involving "trafficking in litigation") was not held to afford a defence to the claim that was made and was not itself a reason to stay the further prosecution of the action. The order for stay that was made was founded upon the exclusive jurisdiction clause, not upon any consideration of public policy concerning maintenance or champerty.'
Importantly, however, Gummow, Hayne and Crennan JJ went on to point out that maintenance or champerty has not been held to be a defence to, or reason enough to stay, an action that was maintained (Fostif 229 ALR at 80 [82]).But Callinan and Heydon JJ, in dissent, pointed out that this issue had only 'received some mention before this Court' (Fostif 229 ALR at 124 [260]).
131 However, in Trendtex [1982] AC 679, there was no application for a stay on the basis of maintenance or champerty. To the contrary, it was the plaintiff, Trendtex, who had claimed that the whole agreement was void for maintenance or champerty, including the exclusive jurisdiction clause. The House of Lords held that clause which sought to effect the assignmentor contemplated assignment of a cause of action to a third party clause was champertous, contrary to public policy and void. But they found that it was severable from the rest of the agreement, so that the balance of Trendtex's claims that the agreement should be set aside fell to be determined by Swiss law. At no stage was there an issue in Trendtex [1982] AC 679 that maintenance or champerty was a 'defence'.
132 Lord Roskill said that the sale of a bare cause of action to a third party who had no genuine commercial interest in the claim in return for a division of the spoils amounted to maintenance and champerty and was void: Trendtex [1982] AC at 704B-C. He said that it was a fundamental principle of English law that a bare right of action to litigate could not be assigned. Lord Roskill said, however, that an assignee who could show that he had a genuine commercial interest in the enforcement of the claim of another and to that extent took an assignment of the claim to himself was entitled to enforce the assignment unless, by its terms, it amounted to champerty (Trendtex [1982] AC at 703D-E). Lord Wilberforce, with whom all of the House agreed (including Lord Roskill), said that a party who had a genuine and substantial interest in the success of the litigation did not offend against the law of maintenance or champerty by taking an assignment of another's interest in proceedings or contemplated proceedings (Trendtex [1982] AC at 694D-E). He continued that a subsequent agreement which contemplated the possibility and, indeed, likelihood, of a profit being made by the assignee or a third party out of the cause of action '… manifestly "savours of champerty", since it involves trafficking in litigation - a type of transaction which, under English law, is contrary to public policy'.
133 In Project 28 [2005] NSWCA 240 at [40]-[41] Ipp JA noted that an interest of the kind described by Lord Roskill (Trendtex [1982] AC at 703F-G) had to be a 'legitimate interest' which was distinct from the benefit the person supporting the action sought to derive from the litigation and something beyond a mere personal interest in profiting from the outcome of the proceedings (Project 28 [2005] NSWCA 240 at [41]; see also Shu v Domsom Pty Ltd [2006] NSWCA 232 at [18]-[19] per Spigelman CJ with whom Handley and Santow JJA agreed; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 70 IPR 146 at 167-169 [91]-[95]).
134 Here, the vendors argued that because, as was common ground, Portfolio Services' causes of action were not capable of assignment to Westpac, the lack of any interest of Portfolio Services in bringing the proceedings and Westpac's lack of any sufficient interest to support even an assignment of the proceeds of the causes of action within the test in Trendtex [1982] AC 679 at 694D-E, 703F-G, the proceedings amounted to an abuse of the Court's process. That was because, neither the actual party, Portfolio Services, nor Westpac had an interest capable of being recognised by the law as supporting the institution and maintenance of the proceedings. This is not a case where a genuine claim for damages will fall into 'some legal black hole, so that the wrongdoer escaped scot-free' (see G.U.S. Property Management Ltd v Littlewoods Mail Order Stores Ltd 1982 SLT 533, 538 per Lord Keith of Kinkel; Linden Gardens Ltd v Lenesta Ltd [1994] 1 AC 85 at 109G-H per Lord Browne-Wilkinson). Portfolio Services had no interest in suing the wrongdoer and Westpac has suffered no damage from the wrongdoing.
135 Portfolio Services was sold to Chase Manhattan under an agreement in which the parties intended that the vendor, BT Australia, would retain the benefit of Portfolio Services' causes of action. But it does not appear that either Chase Manhattan or BT Australia has anything directly to do with the litigation agreement. The trial judge found that the right of action was one in which Westpac had a sufficient interest because of its ultimate ownership of the group in which BT Australia is a subsidiary.
136 In balancing where the issues of justice lie in a case such as the present, one consideration may be that BT Australia might have obtained a lesser price for the sale of shares in Portfolio Services on the basis that the parties thought, erroneously, they were capable of assigning the cause of action to BT Australia or BT Registries. But questions of the interests of justice are not one-sided. No doubt BT Australia acted on legal advice in entering into the sale agreement for its shares in Portfolio Services on the terms that it did. For all the Court knows, it may have been told by its solicitors that the proposed assignment would be ineffectual but, for its own commercial purposes, decided to include the clause anyway. Clause 6.4(b) of the share sale agreement indicates that some consideration was given to the question of how recovery on Portfolio Services' claims might be achieved.
137 Another consideration which is relevant, in my opinion, to an assessment of the legal justification for a maintainer outside the established lawful categories to be permitted to be involved in litigation is whether the maintainer would be responsible if the position of the parties to the litigation were reversed. For example here, if the vendors had sued Portfolio Services in 2004 under s 52 of the Trade Practices Act 1974 (Cth) alleging that it had engaged in misleading or deceptive conduct inducing the vendors' entry into the purchase agreements, it is inconceivable that Westpac would be found to have any legal liability to pay damages just because, as here, years after the event it became the parent of BT Australia, which had formerly owned BT Registries, the purchaser from Portfolio Services of the share registry businesses. That commercial interest of Westpac would provide no justification for the Court imposing liability on it to meet Portfolio Services' obligation to pay damages. Yet, it is that very interest which is sufficient, so it is said here, to support Westpac's use of Portfolio Services' name as its vehicle to recover damages. The unfairness of such different results is manifest.
138 Here the Court is invited to say Westpac can use Portfolio Services' name to recover damages solely for itself from the vendors even though, if the tables were turned, Westpac would almost certainly have no legal liability or enforceable responsibility to pay damages to the vendors despite the 'commercial interest' on which it relies here to maintain Portfolio Services' proceedings. Yet Westpac would have it that this is the price of access to justice. It is a price which I consider to be quite beyond any legal principle or concept of fairness.
139 The difficulties of lifting corporate veils are well known. The courts have recognised that in the ordinary case the veils serve an important legal purpose. And they are veils, not one-way filters. Since the signal decision in Salomon v Salomon & Co [1897] AC 22 the law has developed on the basis that a corporation is a legal person distinct from its corporators (see too: Sons of Gwalia Ltd v Margaretic (2007) 232 ALR 232). A consequence of this doctrine is, as Mason J remarked in Industrial Equity Ltd v Blackburn (1977) 137 CLR 567 at 577, that in the absence of a contract or statute creating some additional right, the creditors of a subsidiary company within a group can look only to that company for payment of their debts. They cannot look to the holding company for payment.
140 The relationship here is of a holding company (Westpac) which acquired its interest in the subsidiary (BT Australia) after the subsidiary had ceased to own either Portfolio Services or the company to which it transferred its share registry businesses (BT Registries). Why is that tenuous reed a sufficient commercial interest to justify Westpac's use of the Court's process to recover on Portfolio Services' causes of action?
141 This principle of separate personality of corporations from their corporators has enabled the commercial community to allocate risk by the use of corporate vehicles in entrepreneurial transactions and to shield the parent company and its shareholders from liability if the venture undertaken does not go well.
142 Westpac did not have any corporate or contractual relationship and paid no money, at the time of Portfolio Services' entry into its agreements with the vendors, which had anything to do with its alleged loss. Westpac's position here is unlike relationships such as insurance, or other categories recognised, e.g. in principles of equity, contract or subrogation, where a person seeking to use another's name to recover from a wrongdoer has made a payment to the nominee or for the nominee's benefit (see Meagher Gummow & Lehane's Equity: Doctrines and Remedies (4th ed) [9-020]; see generally Ch 9). Westpac's only relationship to Portfolio Services' claim in this matter derives, first, from the litigation agreement and, secondly, from its acquisition of the BT Australia group, the value of which might have been diminished by its prior sales to third parties at, perhaps, reduced prices of both Portfolio Services and BT Registries. There was no evidence whether Westpac paid less to acquire the BT Australia group at a price which, similarly, reflected a discount for that diminished value. There was, therefore, no evidence that Westpac suffered any loss. Also, there is no reason to presume that Westpac did not protect itself from that economic loss in the purchase transaction; and so it would have no claim in tort directly against the vendors (cp: Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 at 533 [31] per Gleeson CJ, Gummow, Hayne and Heydon JJ) and would not have suffered any loss itself indirectly.
143 The proceeds of a cause of action in tort, or under statute, are conceptually and legally distinct from the cause of action itself. They represent the new right of property which comes into existence once the cause of action has merged in a judgment so that the former no longer has an independent existence (Blair v Curran (1939) 62 CLR 464, at 532 per Dixon J; see too Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 505 per Brennan J (which is the result of the doctrine of res judicata), 510 per Deane, Toohey and Gaudron JJ, 512 per Dawson J), or has been replaced by an accord and satisfaction as Dixon J explained in McDermott v Black (1940) 63 CLR 161 at 183-184. Dixon J also showed that in the latter situation an accord is an agreement to accept another right in place of the cause of action which remains alive and unimpaired. But if the agreement (or accord) also provides that the plaintiff receives a new right, in substitution for or satisfaction of its cause of action, the latter is extinguished: Black 63 CLR at 184-185.
144 Parker J said that the real reason why equity would not allow the assignment of a bare right of action, whether legal or equitable, was that it savoured of or was likely to lead to maintenance (Glegg v Bromley [1912] 3 KB 474 at 490). In Cummings v Claremont Petroleum NL (1996) 184 CLR 124 at 145 Dawson and Toohey JJ said that the fruits of litigation, when recovered, may be assigned '… provided that the assignee's purpose is not to engage or participate in the conduct of proceedings' (Glegg [1912] 3 KB at 484, 490): see too Glegg [1912] 3 KB at 488-489 where Fletcher Moulton LJ noted that the assignment there contained nothing which gave the assignee a right to intervene in the action or which is in any way against public policy.
145 And in Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at 311 Brennan J said of a cause of action in negligence:
'It is not by reason of its nature that such a claim is not assignable; it is for reasons of public policy that the courts have held that such a claim is not assignable (Trendtex [1982] AC at 703 per Lord Roskill), thereby avoiding the evils of champerty (ibid; see also per Lord Denning MR in the Court of Appeal [1980] QB 629 at 656).'
146 So, a bank or financier can lend money at interest to a customer to enable the customer as a litigant to fund its own participation in litigation. Such a simple and commonplace transaction does not involve, in the usual course of events, the bank or financier as an instigator of, or inter-meddler in, the litigation. And a parent company in a group can support a subsidiary in litigation. An insurer, or other person with an entitlement to be subrogated at law or in equity to the position of a litigant in extant or prospective litigation, again in the usual course, acts lawfully by exercising the right of subrogation, including by instigating and continuing the litigation in the name of the insured or nominal party.
147 In essence, Portfolio Services argues that what the vendors need to show is a realisation of the potential for corruption by Westpac in funding and controlling the litigation. This it says cannot be established having regard to the provisions of the litigation agreement including the entitlement of Portfolio Services to have its own independent solicitors maintain a watching brief on its behalf of the conduct of the litigation by Westpac. The vendors assert that this is simply window dressing and that, at the end of the day, the sole authority vested in Westpac under cl 4 of that agreement to instruct Clayton Utz in the conduct of the proceedings will entitle Westpac's will in the conduct of the litigation to prevail, notwithstanding an unresolved outcome after a mediation between it and Portfolio Services.
148 The litigation agreement imposes on Portfolio Services to make available its relevant information, documents and other records so that Westpac will be able to prosecute the proceedings. Westpac's obligation to co-operate in that endeavour is contained in cl 7. That simply requires Westpac to render all reasonable assistance to Portfolio Services to ensure that the latter is able to comply with its obligations as litigant in the conduct of the proceedings. But after a failed mediation, other than staying within ethical and legal bounds, the litigation agreement leaves Westpac with an unconfined discretion to conduct the litigation in any way Westpac perceives to be in its own interests.
149 As Gummow, Hayne and Crennan JJ pointed out in Fostif 229 ALR at 82 [92], it is necessary to bear in mind that questions of legality and public policy may arise when considering whether a funding agreement is enforceable. But, as their Honours identified, that is a different question as to whether the non-funded party is entitled to invoke the Court in those proceedings to bring the proceedings to an end either by dismissing them or by imposing a stay. The opposing parties may have independent actions on the case for maintenance or champerty as torts committed by the funder in bringing or maintaining the other litigation against them.
150 The effect of the litigation agreement was to create a piece of litigation in which Portfolio Services played but a nominal role. The sole purpose for which the Court has had its process invoked was to benefit Westpac. Portfolio Services is not being assisted in having access to justice. Nor is this like cases of maintenance and champerty, where a stranger merely sought to take an interest in, but not the entirety of the benefit of, the outcome of the proceedings.
151 What is in issue in these proceedings is not a funding arrangement at all. It is an arrangement in which before the proceedings were begun, Westpac took from Portfolio Services the right to the whole of the subject matter of the proceedings for its own benefit and its own purposes. The mere fact that the pursuit of the litigation by Westpac is subject to legal and ethical duties imposed on its lawyers and those of the nominal party, Portfolio Services, does not alter the fundamental characteristic of the litigation as being engaged in solely for the purposes and benefit of Westpac. There is no benefit whatever to Portfolio Services in the litigation.
152 The litigation agreement seeks to achieve a de facto assignment of the entirety of Portfolio Services' causes of action. It is quite different from a funding agreement, such as that in Fostif 229 ALR at 82 [91], which enabled plaintiffs to bring their proceedings in the Court, albeit that the funder would obtain some of the proceeds and all of the control of the litigation.
153 These proceedings are not brought to quell a real controversy which Portfolio Services desires be resolved. The purpose of the litigation agreement is to circumvent the public policy identified by Brennan J in Georgiadis 179 CLR at 311 against assignment of the causes of action which Portfolio Services may have had. Westpac is causing Portfolio Services to conduct the litigation for purposes outside their scope, namely for the sole benefit of Westpac.
154 Westpac did not establish any actual commercial interest which supported its involvement other than asserting its position as a subsequent ultimate holding company of the BT Australia group. This left unexplored whether it had suffered any financial detriment in the acquisition of the BT Australia group which could be connected to Portfolio Services' causes of action against the vendors. Nor was there any explanation why BT Australia or any intended assignee of those rights when the sale to Chase Manhattan occurred had not been an actual party to the litigation agreement. The invalidity of the original assignments was not hard to ascertain for solicitors acting on the transaction. If BT Australia has suffered a loss as a result, it could have recouped it by proceeding against its solicitors if it had not been made aware of the invalidity prior to entering into the sale. Again the evidence is silent on this.
155 Westpac is seeking in this matter to expand the class of persons who can participate in actions to recover damages which common law and equitable principles prevent from being directly assigned. It has not established why it should be allowed to use Portfolio Services' name in these proceedings to do indirectly what it cannot do directly by assignment.