AWB Riskassist Limited v Daryl Barlow
[2011] VSC 258
•16 June 2011
| IN THE SUPREME COURT OF VICTORIA |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
COMMERCIAL COURT
LIST A
No. 9660 of 2009
| AWB RISKASSIST LTD | Plaintiff |
| v | |
| DARYL BARLOW | Defendant |
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JUDGE: | Pagone J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23-26, 30 May 2011 | |
DATE OF JUDGMENT: | 16 June 2011 | |
CASE MAY BE CITED AS: | AWB Riskassist Limited v Daryl Barlow | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 258 | |
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CONTRACT – Terms – Whether contract permitted roll over – Representations made about the terms – Subjective belief of a party – Counterclaim for loss flowing from breach – Affirmative case needed to establish what would have occurred.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Evans | Lander & Rogers |
| For the Defendant | Ms G Preston | HWL Ebsworth Lawyers |
HIS HONOUR:
The central dispute in this proceeding was the identification of the terms upon which AWB Riskassist Ltd (“Riskassist”) contracted with Mr Barlow for him to take positions under futures contracts in respect of the delivery of wheat in November 2007. Riskassist contended that four contracts were made by which Mr Barlow took futures positions to be closed-out prior to 28 November 2007. Mr Barlow did not close-out the futures positions and Riskassist claimed the sum of $1,232,374.02 on the four contracts plus interest of $409,272.59 to 23 May 2011. Mr Barlow contended in answer to the claims that the terms of the contract he had with Riskassist permitted him to reset or roll the futures contracts and that Riskassist wrongfully refused to do so. On that basis Mr Barlow counterclaimed for the amount he maintained was the loss flowing from the breach alleged against Riskassist.
There is no doubt that the parties intended to contract. The parties acted and conducted themselves upon the basis of legal relations having been created between them. The problem in this proceeding was that of determining the terms upon which they intended to do so. The problem in part arose from what may have been a lack of care on the part of Riskassist. Mr Barlow had been given a product disclosure statement and some other documents but did not receive all of the documents upon which Riskassist would ordinarily contract with a person such as Mr Barlow. Riskassist did have formal contract documents which included four attachments setting out, amongst other things, its general terms and conditions and a product supplement and a dictionary. The formal documents and attachments could have formed the basis upon which the parties might have contracted had the documents been supplied to Mr Barlow. In fact, however, none of the attachments were ever received by Mr Barlow and a written document expressed to be a contract (but without the attachments) was only given to Mr Barlow on two occasions. In the event, the parties were contracting with each other by reference only to the product disclosure statement and, perhaps, by reference to such representations as may have been made to Mr Barlow by employees and agents of Riskassist.
It is, therefore, to the product disclosure statement that one must look for the terms of the contract between Riskassist and Mr Barlow. The product disclosure statement sets out what the parties objectively intended to form the basis of their contract.[1] Identifying with workable precision the terms of the bargain between the parties from that document is no easy task. The product disclosure statement was not in form designed to be the terms by which the parties would contract. It was designed as a pre-contract document in which a subsequent document was explained. It does, however, provide a description of the arrangement which the parties thought they were entering into.
[1]Riverwood International Australia Pty Ltd v McCormick (2000) 177 ALR 193, 208 (North J).
The product disclosure statement described the nature of the product that Riskassist was making available to potential customers. The product was primarily designed to attract actual growers of certain grains, including wheat, to enable them to manage their commodity and foreign exchange exposure by providing a mechanism for them to establish futures grain sales and foreign exchange positions in anticipation of their production of grain. The product disclosure statement described the setting up of a hedge account with Riskassist to establish futures and foreign exchange positions over a notional quantity of grain. The expectation may have been that actual growers would establish accounts with Riskassist adopting future and foreign exchange positions over the quantity of grain they expected to have for delivery at the future dates adopted, however, the products in the disclosure statement were not necessarily linked to the delivery of grain or to the production of grain by any party contracting with Riskassist. The product disclosure statement made clear that the proposed contract, available through the Riskassist product, was not a contract to deliver grain. Accordingly, the expectation might have been that actual growers would be attracted by the Riskassist product and take positions by reference to the grain they expected to have, but the product enabled others to adopt a position whether or not they did, or would, have grain to deliver. That, broadly speaking, was Mr Barlow’s position. He described himself as a grower and had some quantity of wheat available but essentially he was not a grower and sought to adopt positions in respect of the future price of grain as a commercial venture in its own right. The attraction of the Riskassist product for a person such as Mr Barlow was in the profit that could be made by speculating upon the movement in the traded price of specified grains.
Two methods for establishing future and foreign exchange positions were described in the product disclosure statement. The only one relevant to this proceeding was the AWB exchange method. Under the AWB exchange pricing method, Mr Barlow had the ability to contract with Riskassist to sell a notional tonnage of wheat to Riskassist in a particular month in the future at an agreed price. An actual grower with an actual tonnage of wheat could in such circumstances, upon production of wheat, sell the wheat crop at the market price and settle the contract with Riskassist at the contracted price and thereby making either a profit or a loss depending upon the movement in the price of wheat as compared with the contract price. Mr Barlow, as I have said, did not have sufficient production of wheat to sell at any stage. The fortunes of a person in Mr Barlow’s position taking positions under the Riskassist product essentially depended upon favourable movements in the price of wheat as against the contracted price with Riskassist. Mr Barlow stood to make a profit if the amount he had to pay to Riskassist on the positions he had taken was greater than the price of grain on the market at the close out date. In that event Mr Barlow could be expected to secure wheat (or other contracts to buy wheat) for less than the futures contracts under which he had agreed with Riskassist to sell wheat. The problem for Mr Barlow was that the price payable for wheat on the close out dates established under the futures contracts with Riskassist substantially exceeded the prices he had contracted to pay to Riskassist. The financial consequence was that it would cost more for Mr Barlow to secure the necessary wheat, or other contracts to buy wheat, to enable him to settle the futures contract with Riskassist than he was obliged to pay under the futures contracts in place.
Mr Barlow was introduced to the Riskassist product around January 2006 whilst an employee of Twynam Agricultural Group (“Twynam”). Twynam was one of the largest privately owned corporate farming organisations in Australia headquartered in Sydney. It had significant interests in grain production and in January 2006 Mr Matthew Schmerl and Mr Greg Noonan (both then employees of Riskassist) met with Mr Barlow and a Ms Zimmer to outline the products and services offered by Riskassist that might interest Twynam in relation to the hedging of its foreign exchange and commodity risks. Mr Barlow was the marketing manager of Twynam at the time and Ms Zimmer was its head trader. Mr Noonan had previously met Ms Zimmer from her previous role as head trader in another company. It was not the purpose of that meeting to secure contracts with Mr Barlow in his private capacity.
In March 2006 Mr Barlow sought to adopt futures positions with Riskassist for himself privately. On 20 March 2006 he sent an email to Mr Noonan with the text in the subject matter of the email stating “I would like to sell Dec 07 & July 08 futures what are the chances for account Barlow Farming”. Barlow Farming was the trading name used by Mr Barlow for his private activities as a sole trader. In the email chain on that day he asked for confirmation from Mr Noonan of his understanding of how Barlow Farming might sell December 2007 and July 2008 futures. The email chain on that day included the following from Mr Barlow to Mr Noonan:
Just let me know if this is not how this is done,
It is my understanding that I can sell futures contracts today and fix the basis and exchange rates at a later date, or by doing this am I locking into physical delivery and would not be able to wash them out later.
In short I want to sell 15 futures contracts at 420 or better, and 10 July 08 at 405 or better. What would be the costs involved in this, and am I correct in assuming there are no margin calls until we wash out?
Could you just confirm these few points and I will give you firm orders.
That email was sent on 20 March 2006 at 11.12am. Sixteen minutes later Mr Noonan responded:
Please find attached a Financial Services Guide and Product Disclosure Statements for our product suite. Please have a read of these in determining which product is best for you. I suspect that AWB Exchange is the product you are looking for – it gives you the ability to hedge futures and fx without a physical commitment – once you are in a position to fix basis, we can look at converting to a deliverable contract. Cost is $5.80/MT, payable at contract expiry and we fund all margins.
Please give me a call if you have any queries.
That response from Mr Noonan attached a number of documents including the financial services guide, the product disclosure statement but not (as I have previously mentioned) what Riskassist might otherwise have provided as formal contracts. Mr Barlow responded on the same day placing his first order.
A number of contracts were subsequently made including some for positions in the 2006 year. Riskassist relied in this proceeding upon four outstanding contracts with Mr Barlow for the 2007 year. The first was made by email sent by Mr Barlow on 21 March 2006. Under that contract Mr Barlow and Riskassist established a futures position in respect of 1,632 metric tonnes of wheat by agreeing that Mr Barlow would sell that amount of wheat to Riskassist in December 2007 at a price of $US 4.16 per bushel. The second contract was entered into by email from Mr Barlow dated 22 March 2006 by which they agreed to establish futures positions in respect of a quantity of 2,040 metric tonnes of wheat to be sold by Mr Barlow in December 2007 at the price of $US 4.13 per bushel. The third contract was entered into by email from Mr Barlow dated 22 March 2006 by which he agreed to sell to Riskassist 680 metric tonnes of wheat in December 2007 at a price of $US 4.13 per bushel. The fourth contract was made by email from Mr Barlow dated 11 April 2006 by which he agreed to sell to Riskassist 2,040 metric tonnes of wheat in December 2007 at $US 4.34 per bushel as to 554 metric tonnes, $US 4.34 per bushel as to 952 metric tonnes and $US 4.3450 per bushel as to 554 metric tonnes. Mr Barlow’s pleading admitted the terms of the contract between them to that extent.
Riskassist maintained, and Mr Barlow contested, that a term of the contract between them permitted Riskassist to close out the relevant futures positions prior to 28 November 2007 on contracts for the delivery of wheat in December 2007. A consequence of the contracts between Riskassist and Mr Barlow was that the former secured contracts traded on the Chicago Board of Trade for the sale of wheat of the amounts sought by Mr Barlow in the months and prices specified. Riskassist opened a hedge exchange account for Mr Barlow trading as Barlow Farming disclosing obligations to sell wheat of specified quantities at specified amounts in December 2007. Mr Barlow also acquired futures contracts for the sale of wheat in December 2006. Under the 2006 contract Mr Barlow incurred losses which he paid by cash settlement but maintained that he did so only upon the understanding and assurance that in respect of the 2007 contracts he would be permitted to reset or roll his obligations into 2008.
Each of the contracts for Mr Barlow to sell wheat in December 2007 had a declaration date of 28 November 2007. The declaration date is not the same as the maturity date but it had particular importance under the product disclosure statement. It made clear that the hedge account contract was not a contract to deliver grain to AWB but that Mr Barlow would be required to make an election on or before the declaration date (as set by Riskassist for the season) as to whether he would deliver the notional tonnage to AWB. If Mr Barlow failed to do so Riskassist was permitted to make an election on his behalf. Page 16 of the product disclosure statement stated:
If you elect not to deliver your grain to an AWB Grain Contract at the Declaration Date, we will close-out your open positions and you must pay us any loss and we will pay you any profit attributable to those positions within 5 business days. If you want to leave your positions open after the Declaration Date, you should discuss this with us well before the Declaration Date. In the absence of a commitment to deliver your grain under an AWB Grain Contract, we would generally only agree to leave your positions open after the Declaration Date if you provided some form of security for our potential exposure (such as a bank guarantee or crop lien).
If you make no election by the Declaration Date, we will make the election on your behalf and you will be bound by that election.
Mr Barlow did not elect to deliver grain and was in no position to do so by the declaration date relevant for the 2007 delivery contracts. He had by that date undoubtedly sought to reset or roll his obligations into the 2008 year. Riskassist maintained that it was not required to roll Mr Barlow’s 2007 positions into 2008 and elected on his behalf to close-out his open positions and in doing so made an aggregate loss of $1,232,374.02 on the four open contracts. In fact the contracts were not able to be closed on 28 November 2007 because of the terms of trade applicable in the Chicago Board of Trade. Page 5 of the product disclosure statement had disclosed that the Chicago Board of Trade had a daily trading limit of US 30 cents per bushel above the previous day’s close. On 28 November 2007 the wheat market in the Chicago Board of Trade did trade in excess of 30 cents above the previous day’s close with the consequence that no trading occurred beyond that point on that day. The market for wheat then closed on that day and the orders which had been placed by Riskassist (including Mr Barlow’s contracts) were filled early on the opening of the market on 29 November (U.S. time). It seems that the trades early on the 29th in the United States were still within the 24 hour period of the 28th in Australia.
Mr Barlow’s defence, and also his counterclaim, depended upon the contention that he was entitled under the contract with Riskassist to require that his 2007 position be “reset” or “rolled” into 2008 positions. The contention was, in short, that whatever obligations he may have incurred to Riskassist in respect of the December 2007 futures he could defer settling the 2007 obligations and take new positions for the same amounts for the following year. The basis of this contention was in part what he maintained had been said to him by employees of Riskassist, in part on some words in the product disclosure statement, and in part on what he maintained to be the fundamental commercial nature of the product.
Mr Barlow gave evidence that he was assured that he would be able to roll his 2007 positions by Mr Schmerl and Mr Street of Riskassist. The dates at which these assurances were said to have been made appears to post date the making of the contracts but, even accepting that they might bear upon the terms of a contract made earlier, each of the witnesses for Riskassist gave clear evidence that no such assurance was given. Mr Vaughan was one of Riskassist’s witnesses to give evidence about his dealings with Mr Barlow. He had been the state grain manager for New South Wales between 2004 and 2008 and the senior account manager for the east coast during 2008. He accepted that there had been discussion with Mr Barlow about roll overs but said that Mr Barlow was never given an option or told that the Riskassist product allowed for a roll over. His recollection was that Mr Barlow had said that he wanted to roll over his futures positions into a 2008 contract and was told by Mr Vaughan “No, Daryl, that’s not allowed within the terms and conditions of the contract that you have entered into”. Mr Street had been employed by AWB Grain Marketing between 2004 and 2007 and had the role of selling and promoting the Riskassist product. He expressly rejected having had any discussions with Mr Barlow about rolling the December 2007 positions and explained that he would not have had the power, and had not been in the position, to permit roll over. Mr Ward had been the grain marketer for AWB during the relevant time and purchased cash grain for the grain traders in head office. He recalled a general discussion with Mr Barlow about rolling over the positions he had taken and gave evidence that he had told Mr Barlow that rolling over was not available. He also undertook to raise the matter with Mr Vaughan, which he did in an email, and was informed that the position of Riskassist was that Mr Barlow’s claim was not permitted. Mr Noonan could not recall any conversation with Mr Barlow to the effect that a feature of the futures contracts permitted a futures position to be rolled over into a subsequent year but was confident that he would not have made such a statement. Nothing in the emails between Mr Barlow and Mr Noonan at about that time suggested anything to the contrary. Mr Schmerl was one of the Riskassist witnesses identified by Mr Barlow as a possible source of assurance. He was the client services manager for Riskassist whose function it was to take and place orders from grower clients and to make sure that Riskassist’s hedge positions with growers matched what Riskassist had “offloaded with Chicago or foreign exchange markets”. His evidence was also that no statement of assurance was given to Mr Barlow permitting roll over of the December 2007 positions.
Some of the conversations between Riskassist and Mr Barlow were recorded in the ordinary course of Riskassist’s business. None of the recordings confirmed the contention made by Mr Barlow. On 14 November 2006 a conversation took place between Mr Barlow and Mr Schmerl. Towards the end of the conversation Mr Barlow asked Mr Schmerl whether he was sure that Riskassist didn’t roll futures from one year into the next. In that conversation Mr Barlow was told unequivocally that Mr Schmerl was not allowed to roll the positions from one year to the next. The relevant part of the conversation was as follows:
Barlow: What’s Dec 07 doing?
Schmerl: Hang ong [sic.]
Barlow: You don’t want to roll these ones into December 07?
Schmerl: No, I won’t be able to, December 07 is 471
Barlow: OK
Schmerl: Yep
Barlow: You sure you don’t roll them into Dec 07
Schmerl: I’m not allowed, if I did that I wouldn’t be here
Barlow: Would it send you to the bench
Schmerl: Yer, yep
Barlow: Do they think I’m a credit risk, do they?
Schmerl: No, they don’t want to be financing it for another year
Barlow: Aww, see you later OK
Schmerl: Yep
Barlow: Righteo
Schmerl: OK mate
Barlow: No worries
Schmerl: Thanks Daryl,
Barlow: Bye
Schmerl: Cheers
There were other conversations with Mr Barlow in which there was some reference to rolling futures contracts but they were limited to rolling between futures months. On 10 October 2006 in another conversation between Mr Barlow and Mr Schmerl the latter had said that Mr Barlow could roll “between futures months” explaining that the accounts offered by Riskassist were not there “for trading as they are for hedging pricing”. In another conversation between the two, this one on 13 Ocotober 2006, Mr Barlow queried whether futures were going to be rolled into 2007 to which Mr Schmerl responded “What do you mean?”. Mr Barlow explained:
Barlow:Well sell and buy 07 buy 06 and sell 07 is that what we are just going to do or wash them out?
Schmerl:No wash them out, we can’t do any more next year until we figure out how you are structured
Barlow:…
Schmerl:Because we don’t know if you fit into our categories
Barlow:OK
Schmerl:So if you want to do that you will have to do it with a broker at this point
Barlow:Righteo
Schmerl:Youv’e [sic.] got one of them set up in here I think
Barlow:Yer
The evidence from Riskassist satisfies me that Mr Barlow was not given the assurance he claimed to have been given.
Mr Barlow’s evidence to the contrary was unconvincing. At best it was a subjective understanding that he might be permitted to roll his exposures from one year to the next. When asked about a conversation with Mr Schmerl he said that he had taken the conversation to mean that if he closed out the 2006 positions he would be allowed to roll over the 2007 positions. Later he was asked about someone having told him that if he paid out his 2006 positions he could roll his 2007 positions if he required that Riskassist do so, but he could identify the person only as “either Andrew Street or Sam Ward”. When asked whether both could have made the statements asserted, his response was “or either – I mean, I have had multiple contact with this – the discovered documents lead me to believe it was Sam Ward. My apologies but I …”. The documentary evidence upon which Mr Barlow relied was equally unconvincing of his claim. An email from Riskassist of 8 May 2006 concerning his requests to take out positions in 2008 was simply that Riskassist was not yet authorised to make them available.
Whether or not he might be permitted to take positions for 2008, in any event, would not have prevented the 2007 losses arising and accruing. At most he might have made a profit from the 2008 contracts which he might have been able to offset against the 2007 losses if Riskassist had not required payment of the 2007 losses. There is no reason to assume that Riskassist would not have required cash settlement especially in view of its insistence that he pay out the losses he had incurred for the 2006 contracts. Those losses were much less than the ones he subsequently incurred for the 2007 contracts and, if any inference is to be drawn from the dealings concerning the 2006 losses, it is that Riskassist was likely to require the cashing up of losses for the 2007 year before assuming another exposure.
Mr Barlow also sought to rely upon what was said in the product disclosure statement in aid of his contention that he would be permitted to roll over the 2007 losses into 2008. On page 10 of the product disclosure statement there is a heading “What are the benefits?” under which there are the words “you can reset your futures component at any time”. The only other reference in the product disclosure statement of any relevance is that on page 19 under the heading “How are payments made?”. Under that heading there is:
When all your futures and foreign exchange positions are closed-out and you do not wish to reset your futures and foreign exchange positions, you must pay us any loss attributable to those positions within 5 business days.
These two references to “reset” were said to contain the contractual term, or representation, that Mr Barlow could roll losses from one year into a subsequent year. I think it fair to say that both references lack precision. The product disclosure statement provides no explanation for the word “reset” and, with respect to whoever wrote the document, it is not clear how the term was intended to be used. If meaning is to be given to the word, however, I am unable to see how it can have the meaning for which Mr Barlow contended. The most likely meaning the word was intended to have, and which I construe it to have, is that new positions could be taken by a grower. That may or may not have permitted Mr Barlow to take out a new contract in respect of the 2008 year but it did not entitle him to demand that his 2007 account not be settled for cash in the year in which the contracts were due to be performed. Mr Barlow may, conceivably, have been able to take out a contract for the 2008 year (assuming contracts were open for the 2008 year) but he did not have a right to defer settling the losses on closed-out positions for the 2007 year. The product disclosure statement had stressed the importance of the declaration date, explaining that if a grower wanted to leave a position open after the declaration date and not to deliver actual grain, Riskassist would “generally only agree to leave [the grower’s] position open after the Declaration Date if [the grower] provided some form of security for [Riskassist’s] potential exposure (such as a bank guarantee or crop lien)”. The Riskassist product was fundamentally directed to assisting growers to manage their crop and foreign exchange exposures and not as an independent financial derivative. Security might not be sought from a grower in respect of the one season in which there was an expectation of grain as the basis of settling futures contracts. But a grower who elected not to deliver grain and wanted not to settle the cash component of the futures contract would ordinarily (and understandably) need to provide security for the additional exposure Riskassist would be asked to assume in respect of the grower wanting to keep open the position. Mr Barlow’s contention of an entitlement to roll positions from one year to another is inconsistent with the position stated in the product disclosure statement about growers wishing to keep open positions after the declaration date without delivering grain. His contention would require Riskassist to assume without security the very exposure which the product disclosure statement made clear would ordinarily require security. Mr Barlow had no security to offer and did not offer any. For that reason I am also unable to accept Mr Barlow’s contention that the nature of the product supported the construction that would see in him an entitlement to roll losses from one year to the next. Any such entitlement as may be encompassed by the vague word “reset” was, at best, conditional. The Riskassist product was, of its nature, ordinarily tied to the availability of seasonal crop as the means by which a grower would satisfy obligations by selling crop and applying the funds secured in discharge of any loss on the futures contracts.
My conclusion about Mr Barlow’s claim means that it is not strictly relevant for me to consider the quantum claimed by Mr Barlow on his counterclaim however it is desirable for me to state my findings about some elements which are dependent upon the evidence. Mr Barlow purported to quantify the loss he claims to have suffered by reason of Riskassist’s refusal to “roll” the 2007 positions into 2008 positions. That, of course, must be understood as in effect the taking of new 2008 positions and a deferral of the obligation to settle for cash the 2007 positions. A claim about what Mr Barlow would have done needs to be established affirmatively upon the balance of probabilities by establishing an evidentiary foundation for positive and detailed findings.[2] The claims made by Mr Barlow, however, are based upon assumptions which he was not able to establish beyond assertion. Care must be taken when assessing the subjective evidence of a witness about intentions.[3] In this case I am not satisfied that the evidence of Mr Barlow would have established the foundation for his counterclaim or set-off. A substantial part of his claim depended upon taking a hedge contract on foreign currency as part of the Riskassist product but the product did not allow for that. In fairness to Mr Barlow it must be said that he conceded the error when it was pointed out to him in cross-examination and the error was accepted by his counsel in submissions. It was clear from Mr Barlow’s evidence in cross-examination on the point that it had simply never crossed his mind before. Another element in his claim took as a figure a closing price for wheat as at 24 November 2008 of $4.99. The evidence he gave about the choice of that date was that it was the date that broadly matched the date which Riskassist had assumed for the 2007 futures contracts and that his claims were based upon conservative estimates. In cross-examination it was shown that the date he had selected coincided with the lowest possible amount within the range of proximate dates available to him. In fact 24 November 2008 was not the closest comparable date in that year for the declaration date of the 2007 contracts. Furthermore, its selection undermined the reliability of his evidence that the figures he had chosen were to produce conservative estimates of the loss he was seeking to claim against Riskassist. Another element in his claim was the taking of call options to lessen his risk in the 2008 year. I am unable to accept that Mr Barlow would have done that if he had been able to do so. He had not done so in the previous year and, however sensible it might have been to have done it for the previous year or the 2008 year, there is no foundation to the assertion that he would have done so in 2008.
[2]Commonwealth v Amann Aviation (1991) 174 CLR 64, 118-126 (Deane J), 141-144 (Toohey J); Orica Australia Pty Ltd v Limit (No. 2) Ltd [2011] VSC 65.
[3]Riley v Penttila [1974] VR 547, 572 (Gillard J).
Riskassist also claims interest on its claim which the parties have agreed at $409,272.59 to 23 May 2011.
Accordingly I propose to make the following orders:
A. The defendant pay the plaintiff the sum of $1,232,374.02 together with interest of $409,272.59 up to 23 May 2011, and interest pursuant to statute for the period after 23 May 2011.
B. The defendant’s counterclaim is dismissed.
C. The defendant pay the plaintiff’s costs, including reserved costs, on the claim and the counterclaim.
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