Plaintiffs v Defendants

2 The first plaintiff, Distinctive FX Pty Ltd ("Distinctive FX"), is the employer of staff of the Salvo Property Group. Jason van der Slot ("Jason") was an employee of Distinctive FX from July 2004 to 29 February 2012. He was employed as what might loosely be described as a bookkeeper. Part of his role was to authorise payments for suppliers and contractors.

3 Jason was originally joined as the first defendant. He committed suicide on 8 November 2013. The whole of Jason's estate was bequeathed to his widow, Elizabeth van der Slot. The trustees of his estate and Elizabeth are now defendants in his stead. Elizabeth was appointed under the will as executrix and trustee of Jason's will. Trustees were also appointed to the estate under the Bankruptcy Act 1966 (Cth).

4 Elizabeth is also the second defendant in her own right.

5 The third defendant, NKT Holdings Pty Ltd ("NKT Holdings"), is a company which, it is alleged, had no legitimate relationship with the Salvo Property Group.

6 The fourth defendant, JLG Holdings Pty Ltd ("JLG Holdings"), was incorporated on 18 June 2004. From that time, Elizabeth was registered as the sole director, secretary and shareholder of JLG Holdings. Shortly after incorporation, it is alleged Elizabeth opened a bank account at Bendigo Bank for JLG Holdings. It is also alleged JLG Holdings had no legitimate relationship with the Salvo Property Group.

7 The remaining 3 plaintiffs share a common director with Distinctive FX and, like Distinctive FX, were all involved in property development.

8 For the purpose of this application, only a very broad summary of the plaintiffs' claims is necessary. In essence, the plaintiffs alleged Jason falsified invoices, which were purportedly issued by both non-existing companies and also by NKT Holdings and JLG Holdings. It is further alleged that the invoices were directed to the plaintiffs, and that Jason approved the false invoices on their behalf, and then authorised cheques or electronic transfers to pay the invoices. It is alleged conversions of the plaintiffs' funds occurred in 133 different transactions, totalling over $8 million. It is further alleged that in excess of $1.3 million of these moneys were deposited into a JLG Holdings bank account.

9 With respect to Elizabeth and JLG Holdings, allegations are made that they, either individually or together, knowingly received or benefitted in the amount of approximately $5.5 million of the moneys misappropriated by Jason.[1] In addition, it is alleged that Elizabeth and JLG Holdings knowingly assisted in the relevant transactions.

10 In addition, for the first time, it is alleged that some of the misappropriated funds were paid into a joint savings account, from which Jason paid premiums for a life insurance policy. It is alleged that at least 34 premiums were paid from this bank account. It is further alleged that by reason of the payment of the premiums of a life insurance policy from that bank account, the plaintiffs had a propriety interest in the life insurance policy; and now have a proprietary interest in any proceeds paid out by reason of the existence of the policy.

11 The conversions relating to JLG Holdings are said to have occurred from 8 September 2004 to 5 May 2008.

12 In addition, conversions referable to NKT Holdings are alleged to have occurred from 12 December 2008 to 16 March 2012.

D. Earlier interlocutory steps and earlier evidence of Elizabeth

13 On 25 July 2013, the plaintiffs successfully applied for a freezing order against each of the defendants. Subject to living expenses and legal fees, which were capped in the order, the court ordered that $7 million of the assets of the defendants were not to be disposed of, dealt with or diminished in value. A search order was also made and duly executed. Six boxes of documents were seized.

14 Upon the freezing order being served, the matter came back before the court on 30 July 2013. Junior counsel represented all of the defendants. On that day, by consent, the freezing order made on 25 July 2013 was continued, subject to further order.

15 On 26 September 2013, the proceeding returned before the court. On this occasion, the defendants appeared by separate representation. Jason and NKT Holdings were represented by a barrister. However, a solicitor appeared for Elizabeth and JLG Holdings. Subject to some minor amendments, the freezing order was continued.

16 Upon the death of Jason, the plaintiffs applied to the court to replace Jason as a party. On this application, there was no appearance for any of the defendants. The orders sought were made. The freezing order was continued with variations being made to allow the sale of a motor vehicle by Elizabeth.

17 Without descending to the detail, the freezing order of $7 million against all of the defendants was continued by order of court on 7 separate occasions (with some minor variations) between 20 March 2014 and 13 March 2015. Most of these orders were made with the consent of the parties.

18 In an affidavit sworn by Elizabeth on 29 July 2013, she sought to distance herself from JLG Holdings. Notwithstanding her sole directorship and shareholding, she deposed that she had very little knowledge of the affairs of JLG Holdings. She swore that, on a date she could not recall, at Jason's request, JLG Holdings granted a power of attorney to Jason. She said that Jason maintained the day to day management of the company. She also said she had no knowledge of the assets of JLG Holdings beyond information then recently provided by Jason. The affidavit also listed Elizabeth's personal assets and their approximate value. In this affidavit, Elizabeth did not disclose she was the beneficiary of a life insurance policy held by Jason. There is no evidence to suggest whether or not she was aware of the policy at the time.

19 In a later affidavit sworn 2 October 2013, Elizabeth responded to a suggestion from the plaintiffs that assets of the defendants may have been dealt with contrary to the terms of the freezing orders. Elizabeth swore that the only asset referred to in her earlier affidavit "of mine or JLG Holdings ... with which I have had any dealing since 26 July 2013 is the NAB Bank Account ... I have not otherwise dealt with any of my other assets or any assets of JLG Holdings since 26 July 2013" (emphasis added). It was on 26 July 2013 that the freezing order was first served on Elizabeth.

20 In the same affidavit, Elizabeth swore that she had not personally had any dealings with the Bank West joint account since the freezing order was served. She also deposed that it was Jason that was normally responsible for attending to financial matters "in our household".

21 As is apparent from the matters set out above, despite Elizabeth's evidence as to her level of involvement with the affairs of JLG Holdings and notwithstanding the claims made against Elizabeth in the statement of claim totalled only $490,102, freezing orders in the sum of $7 million, continued to be made against her, along with the other defendants.

22 At the time of Jason's suicide, he still held a life insurance policy. Elizabeth was the sole beneficiary. On 10 July 2014, Elizabeth received $1,736,437.50 from the insurer.

23 As a result, Elizabeth's solicitors sent a letter stating that the proceeds of the life insurance policy were "clearly unrelated" to any aspect of the plaintiffs' claims in this proceeding and that it was appropriate to exclude these moneys from the operation of the freezing order in place. The consent of the plaintiffs was sought to vary the freezing order accordingly. On 15 September 2014, the plaintiffs stated that that consent to exclude the life insurance policy proceeds would not be given.

24 On 19 December 2014, Elizabeth filed a summons seeking to exclude the proceeds of the life insurance policy from the continuing freezing order. The affidavit filed in support of the application, by Elizabeth's solicitor, stated that Elizabeth had no means to defend the claims made against her other than by recourse to the proceeds of the policy.

25 The application filed 19 December 2014 was returned on 20 February 2015. On that occasion, the plaintiffs informed the court that it was intended to amend the statement of claim. It was also stated that the plaintiffs may seek to add further defendants. Accordingly, the application of Elizabeth was adjourned in order that the claim of the plaintiffs could be finalised.

26 The plaintiffs were given until 6 March 2015 to serve their proposed further amended statement of claim. The application was made returnable on 13 March 2015. This was extended (on the papers) to 20 March 2015. In the meantime, the plaintiffs served a proposed amended statement of claim alleging new causes of action, but refraining from seeking to add any additional defendants.

27 On 20 March 2015, the court ordered that that the freezing order continue as previously ordered as against all defendants, except Elizabeth. The plaintiffs had argued that the statement of claim as proposed materially increased the claims against Elizabeth. However, the additional claims did not plead valid causes of action against Elizabeth. Further, at this point in time, there was no evidence before the court to suggest that the premiums paid to keep the life insurance policy on foot up to Jason's death were paid from any moneys unlawfully obtained by Jason from the plaintiffs.

28 On the basis that the total of the claims properly made against Elizabeth had not increased, the freezing order was varied to reduce the amount of the order referable to Elizabeth to $490,102. It was also ordered that the plaintiffs file and serve any further amended statement of claim by 4 pm on 21 April 2014. This date was subsequently extended on 3 occasions, with the plaintiffs ultimately filing a further amended statement of claim on 6 May 2015. This pleading made significant amendments, including making a series of further claims against Elizabeth.

29 Having filed the new pleading, the plaintiffs then, on 2 June 2015, based on the new allegations, filed a summons seeking that the freezing order with respect to Elizabeth be increased to the sum $5,553,138.[2]

30 The summons was returnable on 4 June 2015. On that day, the court made interim orders until 4 pm on 19 June 2015, effectively preserving the remainder of the proceeds of the policy (excluding expenditure on household living expenses and legal expenses). The additional evidence before the court included evidence that at least some of the premiums paid for the life insurance policy were paid from moneys misappropriated by Jason and the subject of claims in this proceeding. Further, an affidavit filed by the plaintiffs with the summons included evidence of the following background:

(1) Jason was employed from 17 March 1998 until April 2000 and in April 2000 it was discovered Jason had been involved in producing false invoices totalling $684,026 with 1 employer alone.

(2) On 11 May 2001, Jason was convicted of theft, was ordered to pay $895,201.91 and was sentenced to a term in prison.

(3) On 16 August 2001, Jason was declared bankrupt.

(4) In approximately June 2004, Jason was released from prison. (As already noted,[3] in that same month Elizabeth incorporated JLG Holdings as sole director, secretary and shareholder.)

(5) On 30 June 2004, Elizabeth opened a bank account for JLG Holdings.

(6) In June 2004, Elizabeth and/or JLG Holdings made a loan application with Esanda Finance. As part of that application, she stated her net income was $42,000 from JLG Holdings when she was virtually deriving no income at all. This is also despite the fact that Elizabeth now claims she had no involvement in the affairs of JLG Holdings. She also provided an earnings estimate for the next 3 years of JLG Holdings of $100,000 when the company was not trading. Furthermore, Jason's income was recorded as $5,100 per month, or $61,200 per annum, from Distinctive FX.[4]

(7) From July 2004 until July 2007, Jason's salary from Distinctive FX was paid directly into an account held by Elizabeth, being $52,392 per annum.

(8) On 17 August 2004, Jason was discharged from bankruptcy.

(9) On 8 September 2004, the first alleged misappropriation of funds from Distinctive FX took place in the sum of $12,010.

(10) On 18 October 2004, Elizabeth again overstated her income in a loan application. Jason declared an income of $4,900 per month and $96,000 gross per annum from Europcar.

(11) On 30 June 2005, Elizabeth filed tax returns declaring an income of $150,000 when, in fact, no actual receipts of that order were the subject of any transactions involving Elizabeth. The evidence also indicated that the only company of which she was a director was JLG Holdings, a company that was not trading.

(12) On 29 May 2007, Elizabeth again overstated her income in a loan application. She stated that both she and Jason owned cars with a market value of $250,000 (but the financial records of Elizabeth and Jason disclose no evidence of such cars). Jason declared an annual income of $132,000 from Distinctive FX.

(13) From July 2007 until 19 March 2012, Jason's salary was paid into a joint account held by Jason and Elizabeth in the sum of $91,668 per annum. These funds were from Distinctive FX.

(14) On 1 July 2007, Elizabeth again overstated her income in a loan application. Jason again declared an annual income of $132,000 from Distinctive FX.

(15) On 13 September 2007, Jason and Elizabeth purchased a family home in Brighton.

(16) On 30 June 2009, Elizabeth declared income of $100,000, again notwithstanding an absence of actual receipts of income by her.

(17) On 30 June 2011, Elizabeth again declared an income of $100,000, in the same circumstances as before.

31 The plaintiffs also made reference to the defence filed by Elizabeth on 12 March 2014 in which Elizabeth pleaded that: at or around the time of incorporation of JLG Holdings, Elizabeth executed a power of attorney in favour of Jason in relation to JLG Holdings; on 6 June 2009, Elizabeth and Jason married; and, finally, if JLG Holdings received money as a result of Jason's breach of statutory duties and fiduciary duties (which was expressly denied), the money received was used to pay Jason's personal expenses or was used for Jason's personal benefit.

32 With respect to the income of Elizabeth, a more recent affidavit filed on behalf of the plaintiffs suggests that Elizabeth only earned $8,846 throughout the period in which it was alleged that the conversions occurred. The further evidence suggests that during the conversion periods, Jason's total income was $573,886.

33 Elizabeth has filed no evidence to seek to challenge any of the matters put forward by the plaintiffs.

34 In essence, it is alleged that Elizabeth knew the total income of Jason by reason that such income was included in various loan applications made by Elizabeth referred to above.[5] It is also alleged that by reason of the joint expenditure by Jason and Elizabeth during the relevant periods, she must have known that they were spending way beyond any legitimate income they were collectively earning.

35 By way of example, the evidence shows that in 2010, Jason and Elizabeth holidayed in the United Kingdom, Turkey, Greece, and Fiji. In 2011, the family holidayed in the Whitsundays. Each of these holidays cost many tens of thousands of dollars. Evidence is given of the purchase of jewellery in significant amounts. In short, if the evidence is accepted, it is plain that Jason and Elizabeth were spending far more than they were apparently earning from legitimate sources. Of course, whether or not this was the case is a matter for trial. However, a prima facie case in this regard has clearly been made out.

36 Before the matter came on for hearing on 19 June 2015, the plaintiffs served yet another version of the statement of claim. Although no leave has been granted, it was this document upon which the plaintiffs relied in putting forward its case for interlocutory relief against Elizabeth.

37 The substantial amendments to the statement of claim largely rely upon investigative and forensic accounting work of an expert accountant retained by the plaintiffs. Without being exhaustive, the evidence from the expert may be summarised as follows:

(1) During the conversion periods $1,493,384.28 were the total receipts in the JLG Holdings bank account. Of those funds, $1,375,422 were receipts from misappropriations. In other words, of the total receipts to that bank account, 92.1% were the proceeds of conversions of the plaintiffs' funds.

(2) Of the $1,375,422 paid into the JLG Holdings account from the plaintiffs' funds, $1,354,189 was transferred out of that account, leaving $21,232 of converted funds remaining in that account, or expended in a manner which has not been identified.

(3) Funds were also paid into an account held by NKT Holdings totalling $6,978,553.92, of which $6,764,518.65 were the proceeds of converted funds from the plaintiffs. Accordingly, 96.9% of the total receipts represented the proceeds of the misappropriations alleged in the statement of claim.

(4) The expert accountant has provided details in relation to each of the alleged conversions. The total of the moneys paid out to third parties from the misappropriations is $4,385,969. In addition, payments totalling $1,062,930 were made into the 15 credit card accounts referred to in the statement of claim.[6]

(5) In addition, the analysis done by the expert accountant shows that a further $1,167,206 has been paid into unknown accounts and, to date, it has not been possible to trace where those funds have gone.

(6) The documents demonstrated that there were 105 transactions from converted funds that were paid into the Bank West joint account, which transactions totalled $2,778,250. There were also numerous transactions relating to the converted funds coming out of that Bank West account in the sum of $2,216,051. Based on these figures, the expert formed the view that $562,199 of converted funds was spent in the Bank West joint account on general expenses of Jason and Elizabeth.

(7) The expert accountant has reviewed the relevant documentation to verify the amounts alleged concerning knowing receipt or assistance by Elizabeth. That analysis shows to date that, in relation to some of the figures, the total amount alleged has not been verified. The following table sets out the result of the analysis.

S6,000.00

S15,000.00

Having set out this table in his affidavit, the expert accountant then referred to the $1,167,206 of converted funds where the recipient is unknown.[7] The expert also referred to the fact that he had found a further $305,783 of converted funds that had been paid to third party recipients.[8]

38 The principles to be applied in determining whether a freezing order ought to be made are not in dispute. They are conveniently summarised by J Forrest J in Zhen v Mo,[9] as follows:

First, that a freezing order, by its very nature, is a drastic remedy and a court must exercise a high degree of caution before taking a step which will interfere with a party's capacity to deal with his or her assets.[10]

Second, the order is not designed to provide security for the applicant's claim.[11] It is solely directed to preserving assets from being dissipated, thereby frustrating the court process.[12]

Third, the applicant bears the onus both in satisfying the Court that the order should be continued and in satisfying the Court as to the amount which is to be the subject of the order.

Fourth, that an order can only be made on the basis of admissible evidence which supports the contentions made by the party seeking the order. Speculation and guesswork is no substitute for either the facts or inferences properly drawn from proved facts.[13]

Fifth, that before such an order can be made it is necessary that the applicant establish -

(a) an arguable case against the defendant[14]; and

(b) that there is a danger that the prospective judgment will be wholly or partly unsatisfied as a result of the defendant's actions in either removing the assets or disposing or dealing with them so as to diminish their value.[15]

Sixth, the balance of convenience must favour the granting of the freezing order.[16]

Seventh, that there is no set process determining the exact nature of an order. The order will be framed according to the circumstances of the case.[17]

Eighth, the applicant must establish with some precision the value of prospective judgment. The order should not unnecessarily tie up a party's assets and property.[18]

Finally, there may be discretionary considerations which militate against the granting of a freezing order, such as delay in bringing the application on before the court or a lack of candour in the materials placed before the court.[19]

39 In addition to the matters set out above, a further proposition may be added. The evidence relied upon by a plaintiff in seeking to establish an arguable case against a defendant may also be relied upon to demonstrate that there is a danger a prospective judgment will be wholly or partly unsatisfied as a result of the removal, disposal or diminishing of assets. Where the allegations made against a defendant concern serious dishonesty, that evidence of itself may satisfy the court that the requisite danger exists.[20]

40 Applying these principles to the facts of this case, I make the following observations:

(1) The plaintiffs have an arguable case against Elizabeth. As is evident from what is set out above, the allegations concern significant amounts of money over an extended period of time. On a prima facie basis,[21] the plaintiffs have established that Elizabeth knowingly received or assisted Jason in misappropriating substantial sums of money from the plaintiffs.

(2) On a prima facie basis, the evidence gives rise to an inference that Elizabeth must have known that the moneys being expended by Jason and her, for her benefit or otherwise, were well beyond the legitimate income sources available to them. This must be seen in a context where Jason had already been convicted and incarcerated for significant theft in the past, apparently using a similar means of deception. Further, the fact that Elizabeth facilitated the means by which some of these funds could be transacted through the JLG Holdings account supports the plaintiffs' case, at an interlocutory level, that Elizabeth was more than an innocent bystander.

(3) Given the premiums for the life insurance policy were paid out of an account into which converted funds were paid, in the absence of any evidence from Elizabeth, the plaintiffs are entitled to contend that the moneys used to pay the premiums were the subject of a trust in favour of the plaintiffs notwithstanding the fact that there were mixed funds in the account.[22]

(4) The plaintiffs have failed to establish with precision as to the prospective amounts of the judgment.[23] However on the available evidence, any judgment would exceed the proceeds of the life insurance policy.

41 On the question of the balance of convenience, the plaintiffs sought, as a separate order, a freezing order with respect to the entirety of the remaining proceeds from the life insurance policy. This was done on the basis that the plaintiffs' claim a propriety right in the entirety of the proceeds. However, in circumstances where the evidence before the court suggests that Elizabeth has no funds available to her other than the proceeds of the life insurance policy in order to meet ordinary living expenses and to pay her lawyers for the defence of this proceeding,[24] it would be inappropriate not to allow for some of the proceeds to be available for such matters. This is particularly so in light of the fact that this proceeding was commenced in 2013, and, notwithstanding the unavoidable difficulties and consequential delays created by the death of Jason, there still has been significant delay on the part of the plaintiffs. That said, the delay is not sufficiently material to refuse the making of a freezing order as contemplated.

42 In conclusion, I intend to make a freezing order in the amount that has been established to date by the plaintiffs to be the proper amount of claims against Elizabeth.

43 I will invite counsel to address the court on the appropriate terms of the orders to ultimately be made.

44 In the interim, I propose to extend the existing order in relation to the proceeds of the life insurance policy, to a date which is convenient to all the parties and, at that point in time, I expect an agreed position in relation to what the expert accountant has provided by way of evidence of the actual amount of the claim. This amount should also coincide with the final statement of claim which must be filed shortly so this matter can proceed to trial.

[1] The precise amount of the claim has not been finalised. Directions will be made requiring the plaintiffs to finalise their statement of claim promptly.

[2] In fact, the total amount of receipts or benefits confirmed by the plaintiffs' expert to date is significantly less than this sum. I will return to this issue at par 40(4) and fn 23 below.

[4] In fact, the application mistakenly referred to "Direct FX" rather than "Distinctive FX".

[5] See par 30(6), (10), (12) and (14) above.

[6] For example, the expert details payments to credit cards in Elizabeth's name only including payments to: an American Express card account amounting to $112,650, a Coles Myer card account amounting to $15,264 and a platinum MasterCard account amounting to $217,561. See also par 37(7) below.

[7] See par 37(5) above.

[8] Those payments included: $16,650 paid to Elizabeth's MECU account; $119,600 paid to Tragar Constructions Pty Ltd for improvements to Jason and Elizabeth's home; $79,794 paid to Caulfield Grammar School; $21,319 paid to utility providers including Telstra, Simply Energy, SouthEast Water Company and Bayside City Council; $101,247 to the Australian Tax Office for Elizabeth's tax liability; and $30,303.30 to the Australian Tax Office for JLG Holding's tax liability. I note that the total sum of these payments to third party recipients would be $368,913.30 rather than $305,783 as stated in the expert accountant's affidavit.

[9] [2008] VSC 300, [22]-[30].

[10] Cardile v LED Builders Pty Ltd (1999) 198 CLR 380, 403-404 [51]; practice note 3 of 2006.

[11] Jackson v Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612, 621, 625.

[12] Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30; (1998) 195 CLR 1, 44-45 [73].

[13] Hartwell Trent (Australia) Pty Ltd v Tefal Societe Anonyme [1968] VicRp 1; [1968] VR 3, 13.

[14] Glenwood Management Group Pty Ltd v Mayo [1991] VicRp 45; [1991] 2 VR 49, 49.

[15] R. 37A.02(1) Under the general law the plaintiff must establish that there is a real risk of assets being disposed of: Cardile v LED Builders Pty Ltd (1999) 198 CLR 380, 427-428 [122].

[16] Consolidated Constructions Pty Ltd v Bellenville Pty Ltd [2002] FCA 1513.

[17] Jackson v Sterling Industries [1987] HCA 23; (1987) 162 CLR 612, 621.

[18] Cardile v LED Builders Pty ltd (1999) 198 CLR 380, 428-429 [124].

[20] Victoria University of Technology v Wilson [2003] VSC 299, [33] (Redlich J); Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319, 325F-326A (Gleeson CJ, with whom Meagher JA and Rogers AJA agreed).

[21] See Australian Broadcasting Commission v O'Neill [2006] HCA 46; (2006) 227 CLR 57, 82 [65] (Gummow and Hayne JJ); 68 [19] (Gleeson CJ and Crennan J agreeing).

[22] Heperu Pty Ltd v Belle [2009] NSWCA 252; (2009) 76 NSWLR 230, 257 [114] (Allsop P, with whom Campbell JA and Handley AJA agreed); Foskett v McKeown [2000] UKHL 29; [2001] 1 AC 102, 133C (Lord Millett, with whom Lord Hoffmann agreed); In re Oatway, Hertslet v Oatway [1903] 2 Ch 356, 360.3-361.1 (Joyce J).

[23] The expert identifies a number of instances in which a sum of converted funds is identified as being deposited in 1 bank account, is then transferred either to another bank account or a credit card account and may further be used to acquire an asset or pay a third party. It is clear from this simple description that it is not possible to accurately describe the total sum of converted funds for which the defendants are potentially liable by adding the total pool of funds listed under each heading in the expert's material. To do so would necessarily entail counting the same converted funds more than once. For example, the expert identifies that shares in Musto may have been acquired by means of 7 payments of funds to the value of $878,986.33 made from the JLG Holdings Bendigo bank account. The same amount of converted funds is included in the total confirmed benefits listed under the heading "Identified third party recipients" under the subheading "Musto" and in the total confirmed benefits listed under the heading "Analysis of converted funds in and out of the JLG Bendigo account". Similarly, 5 payments to Elizabeth's Coles Myer credit card to the value of $10,030 from June 2005 to September 2007 are included in the totals grouped under both "Coles Myer Card" and "Analysis of converted funds in and out of the JLG Bendigo account". Further, a transfer of $20,000 on 21 August 2007 from the JLG Holdings Bendigo account is included in the analysis as part of the total value of converted funds grouped both under that account and the account from which it was transferred, Elizabeth and Jason's joint BankWest account.

[24] See par 24 above.