Walter Nazloomian v Commonwealth Bank of Australia Pty Limited and ors

Supreme Court of NSW|2013-03-25|Before: Bellew J, Mr P

INTRODUCTION 1By a statement of claim filed on 15 December 2011, Walter Nazloomian ("the plaintiff") commenced proceedings against three defendants, namely: (1)Commonwealth Bank of Australia Pty Limited ("the first defendant"); (2)Nathan Elali ("the second defendant"); and (3)Saracen Holdings Pty Limited ("Saracen"). 2On 6 June 2012 default judgment was entered against Saracen in the sum of $312,289.67 inclusive of costs. Before the court is a notice of motion filed by Saracen seeking orders (inter alia) that the default judgment be set aside. THE PRINCIPAL PROCEEDINGS 3In order to place the issues arising from the notice of motion into some context, it is necessary to give a brief overview of the principal proceedings brought by the plaintiff. 4In about December of 2008, the plaintiff retained the second defendant, and Easy Choice Home Loans Pty Limited ("ECHL") (a company of which the second defendant was a principal) to assist in obtaining a loan from the first defendant. In about January 2009, the plaintiff entered into a loan agreement with the first defendant, whereby the first defendant agreed to advance the sum of $300,000.00 to the plaintiff. The plaintiff alleges that it was a term of the agreement that the first defendant would release the proceeds of the loan in accordance with an authority which had been provided to it, and which required it to pay the loan amount to the credit of a bank account in the name of ECHL. 5The plaintiff's case is that the second defendant directed the first defendant to draw a bank cheque payable to the National Australia Bank for the amount of the loan monies and that the bank cheque, once received, was deposited into an account in the name of Saracen, who then converted the monies to its own use. 6The plaintiff alleges (inter alia) that the first defendant breached the terms of the authority which had been provided to it or that in the alternative, the first defendant acted in breach of its duty to him. Saracen, it seems, seeks to assert a claim of right over the money deposited into its account.

THE NOTICE OF MOTION 7By notice of motion filed on 22 January 2013 Saracen seeks orders (inter alia) that the default judgment entered against it be set aside. 8When the notice of motion came before the court for hearing, Saracen relied upon the following affidavits: (i)Mahmoud Elali dated 22 January 2013; (ii)Mahmoud Elali dated 19 February 2013; and (iii)Nathan Elali, the uncle of Mahmoud Elali ("the second defendant") dated 18 February 2013. 9The content of each of the affidavits of Mahmoud Elali is essentially the same, the only material difference being the form of the draft defence which is annexed in each case. It is the draft defence annexed to Mr Elali's second affidavit which is relied upon for present purposes. Paragraph (25) of that defence is in the following terms: "In answer to the whole of the claim, the Third Defendant says that monies in the sum of $300,000.00 received by it on 30 January 2009 was not the money owing to the Plaintiff under his loan agreement with the CBA, but for monies owing to the Third Defendant and to entities associates (sic) with it, being the Elali's (sic). The Third Defendant says that Mr Elali did not deposit the cheque, in the sum of $300,000.00, into his account". 10The plaintiff relied upon the affidavit of Robert David Webb sworn 20 March 2013 ("the Webb affidavit") along with exhibit RW1 to that affidavit. Both Mr Elali and Mr Webb were cross-examined in the hearing of the notice of motion and I have summarised aspects of their evidence below.

THE RELEVANT PROVISIONS OF THE RULES 11Rule 36.16 of the Uniform Civil Procedure Rules ("the Rules"), pursuant to which Saracen seeks relief, is in the following terms: 36.16 Further power to set aside or vary judgment or order (1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order. (2) The court may set aside or vary a judgment or order after it has been entered if: (a) it is a default judgment (other than a default judgment given in open court), or (b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, ...

THE EVIDENCE The facts established by the Webb affidavit 12The following facts are established by the Webb affidavit. 13Saracen was first registered as a company on 11 July 2007. On 7 January 2011 its registered office was nominated as 52 Hurstville Road, Hurstville ("the Hurstville property"). According to documents filed with the Australian Security and Investments Commission, the Hurstville property remained the registered office of Saracen up to the time of commencement of the plaintiff's proceedings in December 2011 (exh. RW 1 at pp. 3 and 4). 14On 22 August 2011 Mahmoud Elali became the sole director and company secretary of Saracen. The address of the registered office of Saracen remained the same although Mr Elali's address was nominated at Lot 3 Lawrence Hargrave Drive, Helensburgh ("the Helensburgh property") (exh. RW 1 at pp. 3 and 4). 15On 15 December 2011 the plaintiff appeared before Bergin CJ in Eq at which time her Honour made orders: (i)granting leave to file the statement of claim; (ii)granting leave to file a notice of motion against Saracen seeking an asset preservation order; (iii)abridging time for service of the statement of claim and notice of motion; and (iv)adjourning the matter until the following day, 16 December 2011. 16Exh. RW 1 at pp. 14 to 17 and the Webb affidavit (at para. 6) establish that service of the statement of claim, notice of motion, affidavit in support and draft orders was effected by affixing copies of those documents to the front door of the Hurstville property on the afternoon of 15 December 2011. The Webb affidavit (at para. 6) further establishes that an e-mail was sent to the second defendant on 15 December attaching a copy of the statement of claim and notice of motion (although this was at a time when the second defendant was neither a director nor shareholder of Saracen). 17On 16 December 2011 the matter came before Ward J (as her Honour then was) at which time there was no appearance for Saracen. Her Honour was informed that a sequestration order had been made against the second defendant earlier that day, following which she made (inter alia) an asset preservation order against Saracen (Webb affidavit at para. 11). The Webb affidavit (at para. 12) and exh. RW 1 (at pp. 22 and 23) establish that a copy of her Honour's orders was served on Saracen on the afternoon of 22 December 2011 by placing the documents in the letter box of the Hurstville property. It is noted that her Honour's orders included an order that Saracen file and serve an affidavit setting out (inter alia) its assets. 18On 20 January 2012 Mr Webb wrote to Saracen at its registered office (at p. 24 of exh. RW 1) enclosing a further sealed copy of the orders of Ward J and advising that the matter had been listed for further directions on 6 February 2012 (Webb affidavit at para. 13). That letter also pointed out that no affidavit had been served as required by the terms of the previous orders. 19On 23 March 2012 a further notice of motion was filed by the plaintiff seeking orders against Saracen including a further asset preservation order. On that day, White J made the orders sought (Webb affidavit at para. 14), which included an order freezing Saracen's assets, as well as an order that an affidavit be provided as to such assets as Saracen then held. 20On 26 March 2012 Mr Webb wrote to Saracen at the Hurstville property, enclosing a copy of the orders of White J (Webb affidavit at para. 15 and exh. RW 1 at p. 29). At the bottom of the letter the following appears: CC: MAHMOUD ELALI LOT 3, LAWRENCE HARDGRAVE DRIVE HELENSBURGH NSW 2508 21At some time in late April 2012 the plaintiff received an e mail directly from Daniel Massey, solicitor. Mr Massey, who now acts for Saracen in these proceedings, was at that time acting for Elissa Meredith, the wife of the second defendant. At about this time, it became apparent to Mr Webb that Saracen had entered into a contract for the sale of the Helensburgh property. It would appear that this was prima facie in breach of the orders made by Ward J and White J to which I earlier referred. A Mr Sakaris, solicitor, of Sparke Helmore Lawyers acted for Saracen in respect of that sale. 22The plaintiff in these proceedings had lodged a caveat over both the Hurstville property and the Helensburgh property. Although Mr Massey's e-mail to the plaintiff (referred to in [21] above) is not in evidence before me, it appears that it may have raised the question of removal of one or both caveats. 23On 26 April 2012 Mr Webb again wrote to Saracen at its registered office (Webb affidavit at para. 16 and exh. RW 1 at p. 30). That correspondence enclosed a copy of Mr Webb's previous letter of 26 March, along with a further copy of the orders made by White J. The letter made a request for provision, within 7 days, of the affidavit ordered by White J. 24On the same day, 26 April 2012, Mr Webb wrote to Mr Massey (Webb affidavit at para. 16b and exh. RW 1 at pp. 31 and 32). That letter enclosed a form of withdrawal of a caveat lodged by the plaintiff over the Hurstville property. However, in respect of the caveat lodged over the Helensburgh property, Mr Webb questioned the interest of the second defendant's wife (given that the registered proprietor of the property was Saracen) and sought particulars of the basis on which the caveat was disputed. More importantly, Mr Webb's letter included the following: "In any case we enclose, by way of service, copy of the Order/Judgment made by the Supreme Court on 23 March 2012. We confirm that this was served on the registered office of Saracen Holdings Pty Ltd .... under cover of our letter of 26 March 2012". 25On 3 May 2012 Mr Sakaris wrote to Mr Webb (Webb affidavit at para. 17 and exh. RW 1 at p. 33) stating (inter alia) the following: "We understand that you act for (the plaintiff) and refer to your letter dated 26 April 2012 addressed to Daniel Massey. Our client entered into a contract for sale with a sale price of $1,400,000.00 and completion is scheduled for 1 June 2012". 26As I have noted in [24] above, Mr Webb's letter to Mr Massey of 26 April enclosed a copy of the orders of White J. Mr Sakaris made express reference, in his letter of 3 May, to Mr Webb's letter to Mr Massey. It follows that at least by that date Mr Sakaris, as the solicitor acting for Saracen on the sale of the Helensburgh property, was on notice of the fact of the present proceedings, and of the orders made by White J. 27I do not suggest in any way that Mr Sakaris was aware of the orders made by White J prior to that time, much less that he acted in breach of them. However, as a matter of common sense, and in circumstances where Mr Sakaris acted for Saracen on the sale of the Helensburgh property, the existence of those orders would necessarily have been a matter of some interest to him. 28On 4 May 2012, a notice of motion seeking default judgment against Saracen was filed. That notice of motion was not served on Saracen, a matter to which I will return. 29On 8 May 2012 Mr Webb wrote to Mr Sakaris (Webb affidavit at para. 18 and exh. RW 1 at p. 35). That letter made express reference to: (i)the fact that the plaintiff had brought the present proceedings against Saracen; (ii)the orders which were made by Ward J on 16 December 2011; (iii)the service of those orders at Saracen's registered office; (iv)the orders made by White J on 23 March 2012; and (v)the service of those orders at Saracen's registered office. 30In that correspondence, Mr Webb raised the issue of whether Saracen had breached the orders of White J by entering into a contract for the sale of the Helensburgh property. He sought the provision of further documentation in relation to the sale of the Helensburgh property. 31On 9 May 2012, Mr Sakaris wrote to Mr Webb (Webb affidavit at para. 19 and exh. RW 1 at p. 37) stating: "We refer to your letter of 8 May 2012 which we will refer to Saracen Holdings Pty Limited. As discussed with Mr Frank last Friday, please note that we act for this entity only in respect of the conveyance of the above property and not in respect of other matters. Accordingly, we were not at the time of exchange of contracts aware of the existence of the freezing orders" (my emphasis). 32As I have set out (at [29] and [30] above), Mr Webb's letter of 8 May 2012, which Mr Sakaris indicated would be referred to Saracen, contained considerable information about the present proceedings. 33Default judgment was entered against Saracen on 6 June 2012. On 19 June 2012 Mr Webb wrote to Saracen at its registered office (Webb affidavit at para 22 and exh. RW 1 at p. 40) enclosing a sealed copy of the judgment. The letter further advised that a Statutory Demand would be issued in the event that the judgment debt was not paid. 34Mr Webb did not receive a response to that correspondence. Accordingly, a Statutory Demand was issued and served at the Hurstville property on 11 September 2012 (Webb affidavit at para 23). A few days later, a member of Mr Webb's staff received a telephone call from a person identifying himself as the owner of the Hurstville property. The Statutory Demand which had been served on 11 September 2012 was returned to Mr Webb a few days later. 35In early October 2012 Mr Webb became aware that a barrister, a Ms Young, was acting for Saracen in other proceedings. He spoke with her (Webb affidavit at paras. 25 and 26) and outlined the history of these proceedings. In particular, he advised Ms Young of the proposal to wind up Saracen. Ms Young indicated that she had been retained directly by Mahmoud Elali to act on behalf of Saracen in separate proceedings but indicated that she would pass on the information provided by Mr Webb. 36Mr Webb was then contacted by Mr Massey who indicated that he now acted for Saracen in these proceedings. A conference was arranged to try and settle the present proceedings but no settlement was reached. 37The present notice of motion was then filed.

The evidence of Mahmoud Elali 38Mr Elali's affidavit evidence confirmed that he became the director of Saracen on 22 August 2011, prior to which the second defendant had held that position. According to Mr Elali (at para. 4 of each of his affidavits) he did not become aware of the proceedings brought by the plaintiff until 8 October 2012, when he was told by Ms Young that (inter alia) the plaintiff had issued a Statutory Demand against Saracen on or about 30 August 2012. 39Mr Elali also deposed (at para. 5 and following of each of his affidavits) that he spoke to the second defendant upon being made aware of the issue of the Statutory Demand, and that the following conversation ensued: Elali: What is this judgment about and what were the proceedings about? Second Deft: Its about something that happened before you were the director. I didn't think that Nazloomian was going to do anything about it so I didn't worry about it or tell you." 40Mr Elali was cross examined (commencing at T 5 line 35) about the circumstances of the sale of the Helensburgh property. He confirmed that he had retained Mr Sakaris to act on behalf of Saracen in relation to that sale and (commencing at T 7 line 1) his attention was drawn to the letter from Mr Sakaris to Mr Webb of 9 May 2012: Q. The letter from your solicitor, Mr Sakaris, he said he would refer to Saracen Holdings, the contents of the letter of 8 May, didn't he? A. That's what it says in the letter. Q. And he did do that, didn't he? A. I can't recall, sorry. ... HIS HONOUR Q. Was Mr Sakaris acting for you in May of 2012? A. What was that, sir? Q. Was Mr Sakaris your solicitor in May of 2012? A. May 2012, I suppose so. Q. Were you in regular contact with him in your solicitor/client relationship? A. Yes. BOLSTER Q. This correspondence arose because as you understood it, there were caveats on (the Helensburgh property) weren't there? A. That's correct. Q. One by my client, correct? A. That's correct. Q. And you wanted it off, didn't you? A. That's correct. Q. Because settlement was in June of the contract? A. I'm not quite good with dates. Q. Whenever settlement was, you needed the caveats off to settle, correct? A. Yes. Q. And this was a matter of concern to you at that time? A. Of concern at all times. Q. And the solicitors at Sparke Helmore kept you informed about their steps to remove the caveat, didn't they? A. That's correct. Q. And the caveats were removed, weren't they? A. That's correct. 41Mr Elali was then cross-examined about the receipt of mail at the Helensburgh property (commencing at T 8 line 43). He told the court that he did not receive mail at that address "because there is no letterbox there". His attention was drawn to the contents of a company search (at p. 3 and following of exh. RW 1) bearing a date of 15 December 2011 (i.e. the date of the commencement of proceedings by the plaintiff) and which established that: (i)Saracen's registered office at that time was the Hurstville property; (ii)he had been the sole director and secretary on and from 22 August 2011; and (iii)his address was the Helensburgh property. 42Mr Elali was then taken (commencing at T 9 line 49) to the letters from Mr Webb addressed to Saracen and dated 26 March 2012 and 26 April 2012. As to the first letter, Mr Elali asserted that he did not receive it. As to the second letter, he asserted that he could not recall if he received it. He then gave the following further evidence (commencing at T 10 line 29): Q. (The letter of 26 April 2012) could have come to you at Lawrence Hargrave Drive. Is that what your evidence is? A. No, there's no mailbox at Lawrence Hargrave Drive because it's 700 metres, the driveway, away from the actual access on the street. 43Mr Elali was then asked about Saracen's registered office. Mr Elali said that this was "his uncle's old address" (at T 10 line 36) before giving the following further evidence (commencing at T 10 line 47): HIS HONOUR Q. Whose premises are at (the Hurstville property)? A. That's my uncle's old address. Q. Is that the registered office of Saracen Holdings? BOLSTER: It is, your Honour. WITNESS: No. HIS HONOUR Q. Were you in touch with your uncle or whoever it was A. No. Q. Let me finish. Were you in touch with your uncle or whoever resided or occupied the premises at (the Hurstville property) in March of 2012? A. I don't know of the dates because my uncle moved out of that place. I don't know the dates. Q. When? A. I can't recall the dates. Q. And when he moved out of those premises, who moved in, do you know? A. No, he sold the place. Q. Did you change the registered office of Saracen Holdings when your uncle moved out of the premises? A. Saracen Holdings is at Lawrence Hargrave Drive. Q. Did you change the registered office of Saracen Holdings when your uncle moved out of those premises? A. No, we put the Saracen I told the accountant to put it at Helensburgh. Q. When did you do that? A. When I moved into Helensburgh, when I took over as the director of the company. Q. When do you recall that that was? A. I took over the director of the company, I think it was roughly October 2011. Q. Is it your evidence that you don't have any mail delivered to your address at Lawrence Hargrave Drive? A. That's correct. 44It is relevant to observe at this point that the company search (exh. RW 1 at p. 4) establishes that Mr Elali was appointed director and secretary on 22 August 2011. The search also establishes that as at 15 December 2011, the registered office of Saracen remained at the Hurstville property. 45Moreover, and in light of Mr Elali's assertion that he had instructed his accountant to change Saracen's registered office, the following evidence given by him in cross examination (commencing at T 8 line 42) is relevant: Q. And whilst you were living at the (Helensburgh) property you regularly checked the mail I assume? A. I don't have no mail going to Hargrave, at the lot 3. Q. There's no letterbox there? A. No there isn't. Q. You are listed on the ASIC register for Saracen Holdings as being a director and having a residential address at that address, aren't you? A. That's my registered address, yes. Q. So is it your evidence that if someone sent a letter to Saracen Holdings at that address or to you at that address, you won't get it? A. Saracen Holdings go to 222 South - to Hurstville mailbox. Q. I'm concerned now about a letter addressed to you, to (the Helensburgh property)? A. I don't have no letters going to Helensburgh. Q. Where do letters addressed to you go? A. PO Box 222. 46It should be noted that there is no reference to "PO Box 222" in the documents obtained from the company search. 47Later, Mr Elali was asked further questions about his residential address (commencing at T11 L30): "Q. Do you have a driver's licence? A. That's correct. Q. What address is shown on your driver's licence? A. Right now? Q. Yes. A. It's xx xxxxxxx xxxxxx, Narwee. Q. Who lives at xx xxxxxxx xxxxxx, Narwee? A. My wife. BOLSTER Q. How long have you had that driver's licence? A. About a year, no. Q. You can take it out. A. I don't have my wallet on me, sorry. Q. Is it nearby? Is it in the courtroom? A. No, it's in the car. HIS HONOUR Q. Have you ever lived at xx xxxxxxx xxxxxx, Narwee? A. No. I my wife lives there. I live at Lawrence Hargrave Drive. Q. Listen to my question. A. Yes. Q. Have you ever lived at xx xxxxxxx xxxxxx, Narwee. A. I go there regularly. I don't live there. Q. So what is that address doing on your driver's licence? A. Because if I cop a fine, it goes there because you can't write a PO box on a licence." 48Finally, and having had his attention drawn to paragraph (25) of the draft defence (set out in [9] above), Mr Elali was further cross-examined as follows (commencing at T 13 line 12): Q. How much do you say Saracen was owed by the CBA in January 2009? A. I can't recall that price, how much it was. Q. What was it for? A. Saracen is a trust. I didn't own the I wasn't a director at that time. Q. Let me make it clear. You don't know how much the Commonwealth Bank owed Saracen in January 2009? A. We were still going through paperwork. Q. Do you know what it was for? A. No, I don't. Q. Have you discussed this with your uncle? A. My uncle doesn't speak. You talk to him, he doesn't tell you nothing. Q. You don't know, do you, that Saracen owed anything at all by the Commonwealth Bank, do you? A. We were still going through the paperwork. ... Q. You don't know that Saracen was owed any money at all by the Commonwealth Bank in January 2009, do you? A. No, I don't. " The evidence of the second defendant 49Much of the second defendant's affidavit of 18 February 2013 dealt with issues relevant to the principal proceedings. The affidavit was read without objection and the second defendant was not cross-examined. 50According to the second defendant, he was told by an agent of the first defendant, a Ms Ryan, that the monies paid to Saracen were paid, in effect, by mistake, and that the monies in fact represented the monies advanced by the first defendant on account of the loan it had agreed to advance to the plaintiff. The relevant conversation is set out at para. (27) of the second defendant's affidavit in the following terms: Ryan CBA have fucked up. The money I gave you was (the plaintiff's). 2nd. Deft: What money? Ryan: Money paid into the Saracen account 2nd. Deft: But that's the other money owing to me. It's not Walter's and anyway I got $300,000.00. Walter's would have been less than that by the time you take out his fees and stamp duty. And what about the money you owe me. You have made a mistake. Ryan: Let me check and I will come back to you. 51The second defendant then deposed (at (28)) as follows: "At this point in time I was in dispute with the CBA about commission payments and the whereabouts of a loan balance. It was my understanding that the $300,000.00 at had been deposited into the Saracen account was in connection with those monies owing to entities that I will call "the Elali's " (sic). 52The second defendant then deposed (at (45)) as follows: "I believe that the $300,000.00 that was paid into Saracen was for monies owing to entities collectively called "the Elali's (sic)." 53The "entities" referred to in paras. (28) and (45) which are said to constitute "the Elali's" (sic) have not been further defined.

The evidence of Mr Webb 54As I have outlined, the Webb affidavit sets out (inter alia) the procedural history of the matter. Mr Webb was cross examined by counsel for Saracen. 55 Mr Webb gave evidence that the letters of 26 March 2012 and 26 April 2012 were sent to Mr Elali at the Helensburgh address, although he said (commencing at T 16 line 50) that they were not sent by registered post, nor served by a process server. Mr Webb gave no evidence of either letter actually having been placed in the post and was cross-examined in relation to this issue (commencing at T19 L41): Q. There's no evidence, is there, that Mahmoud Elali, the director at the time, was aware of the proceedings? A. No, we sent letters to his address in Helensburgh on numerous occasions, so yes, there is evidence to suggest he was aware, and then there's the conversation I had with his solicitor, Mr Sakaris, in May 2012. Q. There's evidence that the letters possibly went to Helensburgh? A. Mm. Q. That's as far as you can go with the letters. There's no evidence they were received. Do you agree with that? A. I would agree with that. 56Mr Webb was then cross examined (commencing at T 17 line 28) about his letter to Sparke Helmore of 8 May 2012 (at p. 35 of exh. RW 1). He agreed that he had filed a motion for default judgment on 4 May 2012 and had made no reference to that in his letter of 8 May. Mr Webb was then asked: "Q. So you didn't tell the solicitors that a notice of motion for the default judgment had been filed, and there was a date for that default hearing? A. I did in that telephone conversation with Mr Sakaris on 3 May 2012. Q. But we have no evidence of that, other than what you're saying now in the witness box, is that right? A. That's right." 57Given Mr Webb's acceptance that the notice of motion for default judgment was filed on 4 May 2012, his evidence that he told Mr Sakaris of that fact in a conversation on 3 May 2012 (i.e. the previous day) cannot be correct. I did not form the impression that Mr Webb was attempting to mislead the court in any way when giving evidence. It may be that what he discussed with Mr Sakaris was a proposal to file the motion seeking default judgment, as opposed to the fact that a motion had been filed. In any event, and for the reasons more fully set out below, nothing turns on this issue. 58Mr Webb was then further cross-examined (commencing at T20 L41): "Q. Your client knew Saracen was in proceedings with the Commonwealth Bank of Australia for moneys it claimed the Commonwealth Bank owed it? A. That's what he had been told by Nathan Elali, yes. Q. And that's what you knew from your broad understanding with Ms Young about proceedings in the Supreme Court? A. The allegation was that moneys were owed. My real understanding was that CBA commenced proceedings against Saracen to enforce a security, and I understood that Saracen then crossclaimed against CBA, and the particulars of that claim we never became aware of. Q. But in broad terms, you said earlier that you understood the CBA owed money to Saracen? A. In very broad terms, Chinese whispers hearsay, but maybe we understood that Easy Choice Home Loans, what was owed money by CBA but not necessarily Saracen."

THE ISSUES 59In Adams v Kennick Trading (International) Limited (1986) 4 NSWLR 503 Hope JA (at 506) said (in reference to the equivalent provision in the then District Court Rules) (citations omitted): "A court exercising jurisdiction under this sub-rule has to look at the whole of the relevant circumstances ..... The existence of a bona fide ground of defence and an adequate explanation for the failure to defend and any delay are the most relevant matters to consider ..... A refusal of relief to an applicant is not automatically justified because he has failed to establish one relevant matter such as an adequate explanation for the failure to defend or for delay. Such a failure must be considered in the light of all of the circumstances. The absence of an adequate explanation, particularly if it is coupled with prejudice, may justify denial of relief, but only when considered with other relevant circumstances of the case". 60His Honour proceeded to make reference to the judgment of Lord Wright in Evans v Bartlam [1937] AC 473 at 489 where his Lordship said: "... if merits are shown the Court will not prima facie desire to let a judgment pass on which there has been no proper adjudication". 61In the present case, both parties approached the matter on the basis that there were, in broad terms, three issues for determination: (i)whether or not there is an adequate explanation for the default; (ii)whether there has been any delay in seeking to have the judgment set aside and, if so, whether that delay has operated to the prejudice of the plaintiff; and (iii)whether or not there is a bona fide defence on the merits. The first issue - Is there an adequate explanation for Saracen's default? The submissions of the parties 62Counsel for Saracen submitted that I would be satisfied on the evidence that it was not until early October 2012, when he was advised by Ms Young, that Mr Elali became aware that proceedings had been brought by the plaintiff against Saracen. 63Particular reliance was placed upon the evidence of the second defendant that he had not told Mr Elali of the proceedings. Counsel also relied upon the fact that Mr Elali had deposed to that same conversation. 64Counsel for Saracen also relied upon the evidence of Mr Elali regarding the fact that there was no mail delivery available to the Helensburgh property. I understood this to be in support of a submission that I should conclude that Mr Elali did not receive any of the correspondence which, according to Mr Webb, was sent to him at that address. In the light of this submission, I raised with counsel the provisions of s. 160 of the Evidence Act 1995 which are in the following terms: 160 Postal articles (1) It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the fourth working day after having been posted. (2)This section does not apply if: (a) the proceeding relates to a contract, and (b) all the parties to the proceeding are parties to the contract, and (c) subsection (1) is inconsistent with a term of the contract. (3) In this section: "working day" means a day that is not: (a) a Saturday or a Sunday, or (b) a public holiday or a bank holiday in the place to which the postal article was addressed. Note: Section 182 of the Commonwealth Act gives section 160 of the Commonwealth Act a wider application in relation to postal articles sent by a Commonwealth agency. 65Counsel for Saracen submitted that the statutory presumption for which provision is made in s. 160 was satisfactorily rebutted by the evidence of Mr Elali. 66Counsel for Saracen also pointed to the fact that the notice of motion seeking default judgment was not served. It was not completely clear whether this was relied upon as a procedural irregularity which affected the entry of default judgment, or simply as one of a number of circumstances which went some way to explaining Saracen's default. 67The primary submission of counsel for the plaintiff was that there had been no adequate explanation for Saracen's default in circumstances where the evidence established that: (a) Saracen was on notice of the proceedings from the date on which they were commenced and in any event, long before the filing of the motion seeking default judgment; and (b) Mr Elali was put on notice of the proceedings before judgment was entered, firstly by Mr Webb's correspondence to him, and secondly as a result of being informed of the proceedings by Mr Sakaris. 68In support of this submission, counsel firstly relied upon the fact that the original statement of claim, as well as other relevant documents, had been served on Saracen's registered office at the commencement of the proceedings, and at a time well after Mr Elali had been appointed a director. Counsel submitted that service had been effected on Saracen in accordance with the provisions of s. 109X of the Corporations Act. 69Secondly, counsel submitted that I should conclude that the letters of 26 March and 26 April were sent to Mr Elali at the Helensburgh address and received by him. As to Mr Elali's evidence as to the difficulties in receiving mail at that address, counsel pointed out that the address had been nominated by Mr Elali on the documents filed with the Australian Securities and Investments Commission. Counsel submitted that in these circumstances there was a difficulty in Mr Elali asserting that no mail was capable of being delivered at that address. Counsel further submitted that the statutory presumption contained in s. 160 of the Evidence Act had not been rebutted. 70Thirdly, and perhaps most importantly, counsel for the plaintiff submitted that in light of the correspondence which passed between Mr Webb and Mr Sakaris, I should conclude that Mr Sakaris did in fact refer the contents of Mr Webb's letter of 8 May 2012 to Mr Elali, upon whose instructions Mr Sakaris acted. Counsel submitted that if that conclusion were reached, it would follow that Mr Elali was on notice of the proceedings at least by the early part of May 2012, some weeks prior to default judgment being entered and well before October 2012. 71Finally, counsel for the plaintiff submitted that service of the notice of motion seeking default judgment was not required because at the relevant time Saracen was not an active party to the proceedings. In support of this submission counsel drew my attention to rule 10.1 of the rules which is in the following terms: 10.1 Service of filed documents (1) Unless the court orders otherwise, a party that files a document must as soon as practicable serve copies of the document on each other active party. (2) In the case of proceedings in the Local Court, an originating process may, and a defence must, be served on the other parties, on behalf of the party by whom it was filed, by an officer of the Local Court. Note: See rules 10.7 and 10.8 as to how service is to be effected by a court. (3) Despite sub rule (2), a defence that is filed in proceedings in the Local Court by means of the ECM system (within the meaning of Part 3) must be served on the other parties by the party that filed the defence rather than by an officer of the Local Court. Consideration and conclusion 72Section 109X(1) of the Corporations Act is in the following terms: 109X Service of documents (1) For the purposes of any law, a document may be served on a company by: (b)leaving it at, or posting it to, the company's registered office; or (c)delivering a copy of the document personally to a director of the company who resides in Australia or in an external Territory; or (d)if a liquidator of the company has been appointed-leaving it at, or posting it to, the address of the liquidator's office in the most recent notice of that address lodged with ASIC; or (e)if an administrator of the company has been appointed-leaving it at, or posting it to, the address of the administrator in the most recent notice of that address lodged with ASIC. 73Mr Elali asserted that when he was appointed as the director of Saracen, he instructed his accountant to change the registered office to the Helensburgh property. Mr Elali was appointed a director of Saracen on 8 August 2011. At that time, the registered office of the company was the Hurstville property. This had been the position since 7 January 2011. At the time of the commencement of the proceedings in December 2011, more than four months after Mr Elali's appointment as a director, the registered office of Saracen remained at the Hurstville property. These circumstances do not sit comfortably with Mr Elali's assertion that he instructed his accountant to change the registered office in about August 2011. Moreover, I find it somewhat curious that Mr Elali would have instructed his accountant to change the registered office of the company to an address at which, according to Mr Elali, no mail could be delivered. 74The evidence clearly establishes that at the time of the commencement of the proceedings, the registered office of Saracen was the Hurstville property. The evidence also establishes that a number of documents were served upon Saracen at that address, in accordance with s. 109X(1)(a) of the Corporations Act, on 15 December 2011 following the commencement of the proceedings (see paras [15] and [16] above). Those documents included copies of: (a)the statement of claim; (b)the notice of motion seeking an asset preservation order; (c)the affidavit in support of that motion. 75The evidence also establishes that a copy of the orders of Ward J was served upon Saracen at its registered office, in accordance with s. 109X(1)(a), on 22 December 2011 (see [17] above). 76I am satisfied that Saracen was properly served with the originating process in these proceedings and that the company was therefore on notice of the proceedings from the time of their commencement. 77However, the principal submission made by counsel for Saracen was that I should conclude, on the evidence, that Mr Elali did not personally become aware of the proceedings until about October 2012. A consideration of that submission involves an examination of: (i)the evidence relating to the correspondence addressed to Mr Elali at the Helensburgh property; and (ii)the evidence relating to the correspondence between Mr Webb, Mr Massey and Mr Sakaris in the early part of May 2012. 78As I have outlined, Mr Webb gave evidence that copies of the letters of 26 March 2012 and 26 April 2012, each of which was addressed to Saracen at its registered office, were sent to Mr Elali at the Helensburgh property. When cross-examined however, he agreed that there was evidence that the letters "possibly went" to Mr Elali at that address. He also agreed that the evidence fell short of establishing that the letters were received. 79Mr Elali was cross-examined in relation to a number of matters bearing upon this general issue. I found some aspects of that evidence difficult to reconcile. 80Mr Elali maintained (at T 10 line 50 and following) that Saracen's registered office was the address of his uncle. When asked when it was that his uncle moved from those premises he maintained that he could not recall. As previously outlined, Mr Elali asserted that he had instructed Saracen's accountant to change the registered office from the Hurstville property to the Helensburgh property. The documentary evidence is not consistent with that proposition. Mr Elali then asserted that there was no mail delivery to the Helensburgh property and that mail which was addressed to him went to a post box. It is not at all clear how the mail was re-directed to a post box. All of these matters are further clouded by the evidence given by Mr Elali that he holds a driver's licence nominating a residential address at which he has never lived. 81Section 160 of the Evidence Act creates a rebuttable presumption that a postal article sent by prepaid post addressed to a person at a specified address in Australia was received at that address on the fourth working day after being posted. Sub-section 160(2) creates various exceptions which are not applicable to the present case. 82The provisions of s. 160 have been the subject of judicial consideration (see for example the analysis of White J in Scope Data Systems Pty Limited v Goman (2007) 70 NSWLR 176, adopted by Ferguson J in Renegade Rigging Pty Limited v Hanlon Nominees Pty Limited [2010] VSC 385). However in the circumstances of the present case, it is not necessary to engage in an analysis of the provision. 83In my view, Mr Webb's evidence falls short of establishing that copies of the letters of 26 March and 26 April were (in terms of s. 160) "sent by prepaid post addressed to a person at a specified address in Australia". The Webb affidavit simply refers to each of the letters of 26 March and 26 April having been "sent to the address of ..... Mr Elali". Mr Webb's oral evidence when cross-examined reached no higher than an acknowledgement that it was "possible" that the correspondence went to Helensburgh. The plaintiff did not, through Mr Webb, adduce evidence that an envelope containing either letter bore the correct name and address, that it bore the correct cost of postage, or that it was actually placed in the post (as to which see Renegade Rigging (supra) at [22]). It follows that the presumption in s. 160 is not raised. 84Mr Webb's evidence, at its highest, is that the letters in question "possibly went" to Mr Elali. Even though I regard the evidence of Mr Elali in respect of this general issue as being unsatisfactory in a number of respects, I am not satisfied that he received either letter. 85That conclusion, however, does not dispose of the submission made by counsel for Saracen that Mr Elali was unaware of the proceedings until October 2012. There is, as I have outlined, evidence that in April and May 2012 Mr Webb and others engaged in correspondence in relation to the removal of a caveat over the Helensburgh property. In particular: (a)on 26 April 2012 Mr Webb wrote to Mr Massey making reference to the present proceedings and enclosing a copy of the orders of White J; (b)on 3 May 2012, Mr Sakaris, who acted for Saracen on the sale of the Helensburgh property, wrote to Mr Webb in reference to the letter of 26 April sent to Mr Massey; (c)on 8 May 2012 Mr Webb wrote to Mr Sakaris making specific reference to (inter alia) the present proceedings; and (d)on 9 May 2012 Mr Sakaris wrote to Mr Webb and told him that he would refer Mr Webb's letter of 8 May to Saracen. 86Mr Elali said that he could not recall whether Mr Sakaris did in fact refer Mr Webb's letter of 8 May to him. However, he did agree that Mr Sakaris was acting on his instructions at that time and that he was in regular contact with him. He also agreed that the removal of the caveat was a matter of concern to him. 87There is no doubt that Mr Sakaris acted for Saracen, on the instructions of Mr Elali, in relation to the sale of the Helensburgh property. It is also clear that there was a caveat over that property which had to be removed before the settlement of the sale was able to take place. There was also an issue, of which Mr Sakaris was on notice, as to whether Saracen had breached orders made in these proceedings as a consequence of entering into the contract for the sale of the Helensburgh property. 88Against that background, as a matter of common sense, and particularly in circumstances where the settlement of the sale of the Helensburgh property could not be completed in the absence of removal of the caveat, the fact of these proceedings, and the orders made by Ward J and White J, were matters about which any prudent solicitor, upon being made aware of them, would have contacted Mr Elali in order to obtain instructions. In my view, faced with those circumstances, it is inconceivable that Mr Sakaris did not do precisely that. It is also relevant to note that when cross examined, Mr Elali did not deny that he was contacted, but said he could not recall. 89In these circumstances, I am satisfied that Mr Sakaris did refer Mr Webb's letter of 8 May 2012 to Mr Elali shortly after he received it. As a consequence, Mr Elali must have been aware of the current proceedings on and from that time, but took no steps in relation to them. 90I have had regard to the affidavit evidence of the alleged conversation between Mr Elali and the second defendant shortly after Mr Elali had spoken with Ms Young in October 2012. I am satisfied, for the reasons I have expressed, that Mr Elali was aware of the fact of these proceedings, and their nature, well prior to that time. In these circumstances, Mr Elali had no need to ask the second defendant about the nature of the proceedings. I am not satisfied that such a conversation ever took place. 91Further, and regardless of the precise basis upon which the submission was put by counsel for Saracen, there is nothing untoward about the fact that the plaintiff did not serve a copy of the notice of motion seeking default judgment on Saracen. For the reasons I have already set out, Saracen was properly served with the originating process. The Webb affidavit establishes that having been so served, Saracen did not appear on any of the occasions on which the matter was before the court, including those occasions on which Ward J and White J made specific orders against it. 92Rule 10.1, upon which counsel for the plaintiff relied in answer to this submission, requires that a party who files a document must, unless the court otherwise orders, serve a copy on each other "active party". The term "active party" is defined in the Dictionary to the rules in the following terms: Active party in relation to any proceedings means a party who has an address for service in the proceedings, other than: (a)a party against whom judgment has been entered in the proceedings; or (b)a party in respect of whom the proceedings have been dismissed, withdrawn or discontinued. 93Rule 6.1 provides: Except by leave of the court, a party may not take any step in proceedings, including any appearance in court, unless the party has filed a statement of claim or summons in the proceedings or has entered an appearance in the proceedings. 94In the present case, Saracen had not entered an appearance at any time up to the date on which default judgment was entered. As such, it had no address for service and was not an active party. Accordingly, having regard to the provisions of rule 10.1, the plaintiff was not required to serve a copy of the motion seeking default judgment. 95However, and whilst I accept the submission of counsel for the plaintiff in respect of the effect of rule 10.1, the position is in fact even more fundamental. Rule 16.3(1A) specifically provides that an application for default judgment: (a)may be dealt with in the absence of the parties; and (b)need not be served on the defendant. 96It follows that the failure to serve a copy of the notice of motion seeking default judgment was not a procedural irregularity. Further, given the whole of the evidence in this case, and in light of the conclusions I have reached regarding Mr Elali's awareness of the proceedings, the fact that the notice of motion was not served has no material bearing upon any explanation for Saracen's default. 97For all of these reasons I do not accept the submission of counsel for Saracen that it was not until October 2012 that Mr Elali became aware of the proceedings. It is clear that Saracen was served with documentation as early as December 2011. I am satisfied that Mr Elali was personally made aware of the proceedings at least by early May 2012, but did nothing in relation to them. The second issue - Has there been any delay in seeking to have judgment set aside and if so, has that delay operated to the prejudice of the plaintiff? The submissions of the parties 98Counsel for Saracen submitted that since October 2012, Mr Elali had moved swiftly in an effort to resolve the matter. She pointed, in particular, to the evidence that a settlement conference had been convened in the latter part of 2012 and that when this was not successful in resolving the matter, a notice of motion had been filed shortly thereafter, seeking to set aside the judgment. 99Counsel for the plaintiff accepted, as I understood it, that the delay since October 2012 could not be described as "gross". However, he submitted that it was nevertheless significant. Counsel pointed, in particular, to the fact that the plaintiff had a hearing date set for his proceedings against the first defendant and that in circumstances where a considerable degree of time and money had been expended in relation to the preparation of those proceedings, there may be some effect upon the conduct of those proceedings were judgment set aside. This, he submitted, was prejudice in what he described as a "broad sense". Consideration and conclusion 100I accept that since October 2012, there has been minimal delay in brining the present application. 101That said, any delay must be assessed having regard to my finding that Mr Elali was on notice of the proceedings long before October 2012. It was incumbent on him, upon being made aware of the proceedings, to make appropriate enquiries in relation to them and seek appropriate advice but failed to do so. Viewed in this way, the delay on the part of Saracen is somewhat greater than that which has been suggested. 102However, even allowing for those matters, apart from the somewhat elliptical reference to the possibility of the plaintiff conducting proceedings differently, the evidence does not permit a finding that delay of whatever duration has visited any demonstrative prejudice upon the plaintiff. The third issue - Is there a bona fide defence on the merits? The submissions of the parties 103Counsel for Saracen commenced by submitting that it is a fundamental principle that a person who has been adversely affected by a decision has a right to be heard. She submitted that Saracen had been denied that right by virtue of the default judgment which had been entered against it. Counsel further submitted that a bona fide defence was established by the contents of paragraph (25) of the draft defence which was annexed to the second of the affidavits of Mr Elali and which I have previously set out. 104Counsel for Saracen also submitted that the evidence of Mr Webb, and in particular his evidence of the fact that he was aware of other proceedings between Saracen and the first defendant in which Saracen had alleged that monies were owing to it, provided further support for the proposition that the defence was bona fide. 105Finally, counsel relied upon the fact that the plaintiff had filed no affidavit material in response to the proposed defence. This, it was submitted, was evidence that the plaintiff "did not quibble" with the defence and that he "had no problem with it". Counsel submitted that in all of these circumstances I should come to the conclusion that the defence was bona fide. 106Counsel for the plaintiff submitted that no bona fide defence had been disclosed. He submitted that the concluding cross examination of Mr Elali established that there was no basis upon which he was able to assert that any money, let alone an amount of $300,000.00, was owed to Saracen. Counsel submitted that if a defence depends upon certain facts, it is necessary that such facts be the subject of evidence (see Magnate Projects Pty Limited v Youma Constructions (No 2) Pty Limited [2005] NSWCCA 331). 107As to the evidence of the second defendant, counsel for the plaintiff submitted that the second defendant's affidavit asserted nothing more than the fact that he - as opposed to Saracen - was owed money by the first defendant. He relied, in particular, upon the second defendant's reference to "entities associated with it being the Elali's (sic)". Counsel submitted that such a defence, in order to be adequate, was required to particularise how much was owing to the third defendant and on what basis, and that it was incumbent upon Saracen to adduce some evidence to support the facts which were alleged. 108Finally, counsel submitted that the evidence of Mr Webb as to his knowledge of other proceedings did not overcome the inherent deficiencies in the evidence relied upon by Saracen as to its proposed defence.

Consideration and conclusion 109As a general proposition, a party to an action is prima facie entitled to have it heard in his presence. If an order is made in that party's absence, justice requires, so far as it can be given effect to without injustice being visited upon the other party, that the absent party be permitted to come before the court and present his or her case (see generally Grimshaw v Dunbar [1953] 1 QB 408; Cameron v Cole (1944) 68 CLR 571). However, in order to be permitted to do so, it is incumbent upon a party in the position of Saracen to establish that it has a bona fide defence on the merits (see Vacuum Oil Co. Pty Limited v Stockdale (1942) 42 SR (NSW) 239 at 243 per Jordan CJ, cited with approval in Magnate Projects Pty Limited v Youma Constructions Pty Limited [No. 2] (supra) at [48] per Hodgson JA). 110In determining whether a bona fide defence on the merits has been established, it is not my function to try issues of fact. What is required in a case such as the present is that a person or persons authorised by Saracen swear to facts which, if established at trial, will afford a defence. What is also required is that the bona fides in setting up that defence be made out (see Simpson v Alexander (1926) 26 SR (NSW) 296, cited in Adams (supra) per Hope JA at 507). In Magnate Projects Pty Limited (No. 2) (supra) Hodgson JA put the requirement in this way (at [52]): "In my opinion, an applicant seeking to set aside a judgment obtained after an undefended hearing does not have to show that a different result is likely should the judgment be set aside and a new trial ordered. However, the circumstances may be such, as Jordan CJ says, as to require "a reasonably clear case of merits to be shown"; that is, that it appear reasonably clearly that there is a defence capable of producing a different result. If that defence depends on facts, then there should be some evidence of those facts; and the circumstances may be relevant to the quality of the evidence that is required to show a defence on the merits in particular cases." 111In terms of the evidence which is required to make out a bona fide defence on the merits, Hope JA in Adams (supra) said (at 507): ".... evidence can be received, by cross examination or otherwise, as to the bona fides of the applicant in seeking to rely upon the defence even though the evidence adduce relates to the issues which would be determined if the matter went to trial. However the question to which this evidence is directed is not simply whether the applicant has shown a defence on the merits; it goes rather to the composite question whether the applicant has shown a bona fide defence on the merits. If the judge hearing the application concludes that the applicant has deliberately lied about the alleged defence and is thus dishonest in raising it, the applicant would fail to establish that he has a bona fide defence on the merits. But if in such a case the judge merely concluded that he preferred the evidence of the respondent to that of the applicant, or anything as to credit short of a disbelief by the applicant in the facts he relied upon to found the defence, he would not on that account alone be entitled to find that the applicant had failed to establish that he had shown a bona fide defence on the merits. If he did so, he would be trying the issue to be determined at the trial, and this would be an error of law". 112I have already set out the terms of paragraph (25) of Saracen's draft defence. That paragraph: (a)admits that Saracen received the sum of $300,000.00; (b)asserts that the money was not that of the plaintiff; (c)further asserts that the money represented a sum owing to Saracen "and entities associated with it, being the Elali's (sic)". 113Inherent in (c) above is the proposition that the money paid to Saracen includes money owed, not to Saracen, but to other "entities". 114There is evidence in the affidavit of the second defendant of the history of his dealings in relation to the loan obtained by the plaintiff from the first defendant. Whilst this material provides some evidence of the facts upon which the proposed defence is based, it also poses a number of important questions. In particular, it is not clear what is meant by the reference to the "whereabouts of a loan balance". Further, and as is the case with Mr Elali's affidavit, the "entities" which are said to constitute "the Elali's" (sic) have not been identified. One inference is that the second defendant himself is one of those "entities", and is therefore referring to monies owed to himself, as opposed to Saracen. Moreover, the precise work which is said to have been done (be it by Saracen or those "entities") which entitled them to part of the sum of $300,000.00 is not set out. No documentary evidence was adduced by Saracen in respect of any of these matters. 115When these matters were canvassed with Mr Elali in cross-examination, not only was he unable to say how, why, or how much money was owed to Saracen, he was not in a position to assert that Saracen was owed any money at all. His explanation for being unable to provide this information was he was "still going through the paper work". I found these aspects of Mr Elali's evidence to be unsatisfactory and unconvincing. The proposed defence of Saracen is based fundamentally on the proposition that it was owed the money in question and had a right to it. Not only is the evidence itself lacking in that regard, the quality of such evidence as has been adduced (adopting the terminology used by Hodgson JA in Magnate Projects Pty Limited (No. 2) v (supra)) is similarly lacking. 116As I have noted, counsel for Saracen sought to rely upon the evidence of Mr Webb in support of its proposed defence. Mr Webb described having a "broad understanding" of the fact that in some other proceedings between Saracen and the plaintiff, Saracen had asserted that monies were owing to it. Mr Webb described his understanding as having derived from "Chinese whispers hearsay". Whilst I intend no disrespect whatsoever to Mr Webb, the lack of quality of that evidence, which is called upon in support of the proposition that Saracen has a bona fide defence, needs no further comment. 117I am mindful of the fact that an application of this nature should seldom, if ever, be refused on the basis that an applicant's case appears to be a weak one (see Grimshaw (supra) at 416). However in my view, the present is not a case where Saracen's position is simply weak. Leaving aside the various shortcomings in the evidence to which I have referred, the oral evidence of Mr Elali makes it clear that he is not in a position to assert that any monies are owed to Saracen at all, in circumstances where that is a cornerstone of the defence it seeks to assert. 118The absence of evidence from the plaintiff in answer to the evidence and draft defence relied upon by Saracen does not, in my view, lead to the conclusion that the plaintiff accepts the assertions made by Saracen and that accordingly, the draft defence answers the description of a "bona fide defence on the merits". In Simpson (supra) Jordan CJ observed (at 301) that whilst not an inflexible rule, it was not usual to go beyond the evidence relied upon by an applicant for the purposes of determining whether there is a bona fide defence on the merits. It is Saracen's application to set aside the judgment and accordingly, Saracen must establish a bona fide defence on the merits. For the reasons I have expressed, I am not satisfied that it has done so. ORDERS 119I make the following orders: (i)the notice of motion is dismissed; (ii)the third defendant, Saracen Holdings Pty Limited, is to pay the plaintiff's costs.

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