CHILD SUPPORT REGISTRAR & MASSEY
[2012] FMCAfam 295
•3 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHILD SUPPORT REGISTRAR & MASSEY | [2012] FMCAfam 295 |
| CHILD SUPPORT – Application by Child Support Registrar to enforce a judgment debt – undefended hearing – respondent’s allegations as to trust considered and rejected – third party debt notice to issue. |
| Child Support (Registration and Collection) Act 1988, s.72A Family Law Rules 1984, o.33, r.3 Federal Magistrates Court Rules 2001, div.25B.2 |
| Child Support Registrar & White [2008] FMCAfam 547 Hyhonie Holdings Pty Ltd v Leroy [2003] NSWSC 624 Kauter v Hilton (1953) 90 CLR 86 Byrnes v Kendle (2011) 279 ALR 212 Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (in liq) (2000) 202 CLR 588 Brennan v Morphett (1908) 6 CLR 22 Permanent Trustee Co v Scales (1930) SR (NSW) 391 In re Appleby’s Estate (1930) 25 Tas LR 126 Re Cozens [1913] 2 Ch 478 Ho v Powell (2001) 51 NSWLR 572 Jones v Dunkel (1959) 101 CLR 298 |
| Applicant: | CHILD SUPPORT REGISTRAR |
| Respondent: | MR MASSEY |
| File Number: | MLC 3254 of 2010 |
| Judgment of: | Altobelli FM |
| Hearing date: | 22 March 2012 |
| Date of Last Submission: | 22 March 2012 |
| Delivered at: | Sydney |
| Delivered on: | 3 April 2012 |
REPRESENTATION
| Senior Counsel for the Applicant: | Mr Stephen Lloyd SC |
| Counsel for the Applicant: | Mr Bora Kaplan |
| No appearance by the Respondent |
THE COURT ORDERS THAT:
A third party debt notice in terms of that sought by the applicant in the first schedule to these reasons be issued.
Leave be granted to the solicitors for the applicant to provide a copy of these reasons to the payee named in the said third party debt notice and to those who advise the payee, should the need arise.
The third party debt notice to issue forthwith.
THE COURT DIRECTS THAT:
(a)Within 7 days, the solicitors for the applicant notify the respondent at his last known address about the Orders made today, as well as providing him with a copy of these reasons for judgment.
(b)Leave be granted to the respondent to apply to vary, suspend or set aside these Orders at any time within the next 28 days subject to the respondent:
filing an application in the appropriate form supported by an affidavit explaining his non-attendance at Court;
filing a sworn financial statement containing his up to date financial information;
complying with all orders and directions made for disclosure and production of documents in these proceedings to date;
if he asserts that the funds covered by the third party debt notice are not funds owned by him or available to satisfy the obligation in question, that he produces evidence not dealt with in these reasons to support his assertions; and
the matter being heard and determined by Federal Magistrate Altobelli subject to his reasonable availability.
IT IS NOTED that publication of this judgment under the pseudonym Child Support Registrar & Massey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
MLC 3254 of 2010
| CHILD SUPPORT REGISTRAR |
Applicant
And
| MR MASSEY |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by the Child Support Registrar to enforce a judgment debt obtained against the respondent. The matter proceeded in the absence of the respondent.
Background
The issue of the respondent’s child support debt has a history going back to at least 2006. On 1 August 2006 Local Court Magistrate Wynhausen declared that Mr Massey, the respondent, owed to the Commonwealth the sum of $85,502.95 (comprising $59,844.77 in maintenance arrears and $25,658.18 in late penalties) and $4498.80 in costs. Mr Massey was ordered to pay these amounts on or before
3 October 2006. The applicant asserts, and the evidence confirms, that since that date Mr Massey has made one payment of $7,000 in partial satisfaction of the arrears. Accordingly, the applicant asserts, and the evidence establishes, that the balance of the debt in respect of the judgment is $78,502.95 to which needs to be added interest of $46,428.10 meaning that the amount outstanding is $129,429.95. It appears that between 2006 and 2010 there were other enforcement proceedings pursued through the Federal Magistrates Court and Family Courts of Australia. They are not directly relevant to the present proceedings except to the extent that they demonstrate a clear pattern of behaviour by the respondent in that he either rarely, or never appears in proceedings relating to him even when it is clear to the Court at that time that he was on notice of the proceedings.
In any event by 2010 it had come to the attention of the Child Support Registrar that it was possible that moneys were held by the ANZ Bank in respect of which the respondent had some interest. The Child Support Registrar issued to the ANZ Bank a notice under section 72A of the Child Support (Registration and Collection) Act 1988 requiring it to pay to the applicant the sum then owed by Mr Massey to the Commonwealth. There was subsequent correspondence between the ANZ Bank and the Child Support Registrar the effect of which was that the Respondent, through the ANZ, made an assertion that the moneys in question were actually held on trust for a third party and thus the ANZ Bank had a reasonable excuse not to comply with the s.72A notice.
In April 2010 the present proceedings were commenced by way of summons pursuant to order 33 rule 3 of the Family Law Rules 1984, which were at that time the relevant procedural rules in this Court for enforcement. The focus of the proceedings at that time, and continuing, was on two accounts held with the ANZ styled as follows:
·Mr Massey trading as [T]
·[S] Pty Ltd
On 12 April 2010 Riley FM restrained Mr Massey from dealing with the moneys in those accounts except to the extent that the balance of each account exceeded $113,442.74. Her Honour also made various procedural directions, including that proceedings be transferred to the Sydney registry of this Court.
Those representing the Child Support Registrar undertook further investigation about the matter, including issuing a number of subpoena. The respondent participated in some of the interlocutory issues that arose in this period. Thus, for example, he filed a notice of objection in respect of the applicant’s subpoena to a company called [C] Pty Ltd. He also swore a number of affidavits. The respondent appealed against orders made by Scarlett FM on 3 August 2010, an appeal that was ultimately dismissed by the Full Court of the Family Court on 8 April 2011. The respondent was successful in obtaining a grant of a stay pending the appeal. It is also apparent that throughout this period the respondent failed to comply with a number of orders requiring him to produce documents relating to the proceedings. Thus, whilst the respondent was actively participating in the proceedings at this particular point in time, his participation did not extend to complying with orders for production and disclosure made against him. It can hardly be said that Mr Massey was not aware of the present proceeding, given the nature and extent (selective as it might be) of his participation in them.
By the time that the matter came for hearing before me the specific relief sought by the Child Support Registrar was that pursuant to rule 25B.40 of the Federal Magistrates Court Rules the Court issue a third party debt notice to the ANZ Bank requiring the payment to the Commonwealth of moneys payable to Mr Massey in the two accounts named above. The third party debt notice is reproduced in the first schedule to these reasons.
Undefended hearing
The respondent did not appear in Court on the day of the hearing. The matter proceeded in his absence. I am satisfied from the evidence contained in the affidavit of Mr P affirmed 22 March 2012 that
Mr Massey was made aware of the hearing. I record, however, that even in the absence of this evidence I would have proceeded to deal with the matter. The respondent’s record of attendance at Court, and participation in the proceedings, is sporadic and inconsistent. Thus, for example, he was present in Court on 8 March 2011 to receive judgment from Scarlett FM in relation to one of his own applications.
As previously indicated, he appealed an appeal against that decision. Mr Massey did not attend Court on later occasions. A respondent in proceedings where it is alleged that he has not complied with an order of a Court cannot avoid the possible legal consequences of a final hearing on enforcement issues by only selectively attending Court when he pleases. It is not necessarily the case that a respondent can claim a denial of natural justice in respect of proceedings to which he was a party, because he chose not to participate at certain times. Moreover, non-participation in this case was coupled with non-compliance with orders and directions of the Court.
Notwithstanding the above, I will nonetheless extend to the respondent the opportunity to relist this matter before me if and when I make the orders sought by the applicant so that he might pursue an application to vary, set aside or stay the order, and provided of course he provides a satisfactory explanation as to why he did not attend, as well as provide some evidence of a bona fide claim or defence on his part. Indeed he should even be given the opportunity to argue about the appropriateness of some of the conditions I may impose in this regard.
The evidence
The evidence relied on on behalf of the Child Support Registrar included three affidavits of Mr P affirmed on 22 March 2012, an affidavit of Ms W affirmed on 22 April 2010 and an affidavit of Ms K sworn 12 April 2010. There is also an affidavit of Mr P affirmed 4 October 2011 to which was annexed a substantial quantity of documents. The Child Support Registrar also read as part of its case paragraphs 12 and 13 of the respondent’s affidavit filed 7 May 2010.
Even though the matter proceeded in the respondent’s absence, I also had regard, as I am entitled to, to his affidavits filed on 2 August 2010, 12 October 2010 and 3 December 2010.
The applicable law
Mr Stephen Lloyd SC and Mr Bora Kaplan appeared on behalf of the Child Support Registrar. Mr Lloyd submitted, and I accept, that the proceedings were governed by division 25B.2 of the Federal Magistrates Court Rules, dealing with enforcement of financial orders and obligations. I am satisfied that this is the case even though at the time the proceedings were commenced a different set of rules applied to enforcement proceedings, namely order 33 of the Family Law Rules. There is no issue, in my mind, about the continued application of those rules. Clearly they have been superseded by division 25B of the current rules. I am satisfied that, therefore, the issues raised by Halligan FM in Child Support Registrar & White [2008] FMCAfam 547 do not arise on the facts of this case because the relevant provisions of division 25B of the current rules, are different from the particular rules that his Honour was concerned with in order 33.
The order 33 regime for enforcement may well be different in form to the current division 25B regime for enforcement, but the substance is the same. The relief sought by the Child Support Registrar under the old rules would have been called the garnishment order, but under the new rules is called a third party debt notice.
Lest I am wrong, however, and these proceedings should have been governed under order 33 of the Family Law Rules, and lest there be an issue about whether I am entitled to proceed on an undefended basis to hear these enforcement proceeding, I record here that I invited
Mr Lloyd to make an oral application in terms of the very same orders he sought before me. This is the procedure that was adopted by Halligan FM in CSR & White, and I am satisfied that it is the most appropriate procedure to adopt in a case where the respondent’s participation in proceedings has been as selective as it has been.
Application of division 25B.2 to the evidence
Rule 25B.07 sets out the obligations which may be enforced under this division of the Rules. The Child Support Registrar is seeking to enforce a declaration made by Local Court Magistrate Wynhausen on
1 August 2006. I am satisfied that that is an obligation to pay money that is covered by rule 25B.07, specifically paragraph (2)(a)(i). There is no evidence before me to indicate that the obligation created by the said declaration does not remain “an obligation” for the purposes of this rule. There is no evidence to indicate, for example, that the respondent appealed her Honour’s order, or has applied to vary, stay or set it aside. There is no evidence before me that suggests that the respondent has in any way sought to attack the underlying basis of the obligation under the child support legislation, or indeed under any other legislation. I will discuss the issues raised by the ANZ Bank as to the beneficial ownership of the funds sought to be attached later on in my reason, but even the matters asserted in that regard do not, in my opinion, detract from the present obligation being an enforceable “obligation” for the purposes of the rules.
I am satisfied that the applicant is a person who may enforce the obligation, for the purposes of rule 25B.10.
I am satisfied that the relief sought in the form of the issue of a third party debt notice is an obligation that may be enforced pursuant to rule 25B.11.
I am satisfied that all the evidence that needed to be filed in support of the enforcement order, pursuant to rule 25B.12, and otherwise, has indeed been filed and addresses the matters referred to in the rules.
I am satisfied that the rules nonetheless create a discretion in the Court so that even if an obligation exists, the Court has a discretion as to whether to enforce it. There is no evidence before the Court which would suggest that the obligation ought not to be enforced in the manner proposed by the applicant.
In this regard, I deal specifically with the evidence before me that raises either expressly or impliedly the issue of whether the moneys held in the accounts sought to be the subject of a third party debt notice contain moneys that are not that of the respondent. In this regard the evidence may be summarised as follows. The assertion is that both accounts contained moneys held on trust for a third party. The documents before the Court indicate that on or about 6 April 2010 the ANZ Bank wrote to the applicant’s solicitors notifying them that the respondent had granted to the bank permission to release documents in relation to the [T] account as follows. The first was a letter dated 27 March 2010 purporting to be from the company secretary of [T] Limited advising that the ANZ account is a trust account and that the respondent is a trustee of the funds contained therein. The second document purported to be minutes of meeting of directors held on 11 March 2008 in which it is said that the respondent is authorised and directed to open and operate a bank account in trust on behalf of [T] with the ANZ and that it is to be in the name of the company and used solely for company business and transactions.
The assertion that the moneys held in the [T] account are held in trust for a third party faces a number of significant evidentiary obstacles. For example, paragraphs 12 and 13 of the respondent’s affidavit filed 7 May 2010 is quite inconsistent with the assertion of the trust, and is consistent with his beneficial ownership of the said funds. He deposes in paragraph 12 to the injunction made by Riley FM on 12 April 2010 relating to the funds in question. At paragraph 13 he says that “this order has effectively frozen any funds I might have available or be able to access for the purpose of brief appropriate legal representation”. I draw the inference that even the respondent believed that these funds were available to him to use for his personal purposes relating to this case. Secondly, the assertion of the trust is inconsistent with the documents establishing the account. The documents produced by ANZ indicate that the account was opened on or about 1 July 2008 and was styled as Mr Massey trading as [T], a registered business name under the New South Wales Business Names Act 2002, and not a company. Thirdly, in circumstances where the documents established that the respondent was the only person entitled to operate this account, the bank statements produced not only establish a considerable movement of money within the account, but also seems to indicate a significant financial relationship with an entity known as [C] whose post office box, according to ANZ Bank statements, is precisely the same as [T], as well as being the respondent’s address for service in the present proceedings. Moreover, the [T] bank statements also indicate funds used for the purposes of meeting liabilities on the respondent’s credit card statement. In these circumstances, on the evidence before it, the Court finds that the moneys in question are, on the balance of probability, beneficially owned by the respondent, and that enforcement may be executed against those funds.
The second account is an account in the name of [S] Pty Limited. This is a deregistered company, the sole director, secretary, and shareholder of which is the respondent. The respondent’s affidavit filed 7 May 2010 in these proceedings is, once again, consistent with his beneficial ownership of these funds. In evidence there is a considerable quantity of bank statements on this account. These documents indicate that between June 2009 and March 2010 over $113,000 was transferred from the Mr Massey trading as [T] account, into the [S] account. Moreover, an examination of the transactions on the [S] account does suggest personal expenditure which, in the circumstances, appear to be that of the respondent. In the circumstances, and on the available evidence, I find on the balance of probability that the moneys held in the [S] account is money of the respondent which is available to satisfy an obligation that he has to pay money to the applicant.
I record that in relation to the [T] account I have had regard to the evidence that the respondent asserts establishes that he is merely the trustee of these funds. Those documents consist of a letter dated 27 March 2010 purporting to be from the company secretary, [T] Limited (a company incorporated in Hong Kong of which Mr Massey, as at February 2010, was the sole director and shareholder) advising that the said account is a trust account and that Mr Massey is the trustee of those funds. The second document purports to be a copy of the minutes of meeting of directors of [T] held on 11 March 2008, in which it is said that Mr Massey is authorised and directed to open and operate a bank account, in trust, on behalf of the company and in its name, and that the funds are to be used solely for company business and transactions.
Mr Lloyd SC, on behalf of the applicant, quite properly referred me to these documents but raised the issue as to their relevance and admissibility in circumstances where the documents have not been authenticated by the evidence of a person who has knowledge about the matters referred to therein. That is quite possibly true, but in the circumstances of this case there is no need to adjudicate on the issue. I do not accept that the evidence contained in the documents referred to immediately above is more compelling than the evidence that I have discussed earlier in my reasons, which lead me to conclude that the funds are beneficially owned by Mr Massey.
In their written submissions, Mr Lloyd SC and Mr Kaplan referred to a number of legal authorities indicating that irrespective of whether or not the [T] documents I discussed above can be authenticated, the respondent has failed to demonstrate that a trust has been created, the onus being on him to do so. I accept the submission and reproduce them in full below:
10. Irrespective of whether or not the [T] documents can be authenticated, Mr Massey has failed to demonstrate that a trust has been created, the onus being on him to do so: Hyhonie Holdings Pty Ltd v Leroy [2003] NSWSC 624 at [34] per Young CJ in Eq (as his Honour then was).
11. Mr Massey is asserting that the [Mr Massey] account “was opened to effect the domestic business of [T] Ltd, and has been used for that purpose”: see letter from the ANZ to the CSR‟s solicitors dated 6 April 2010 in Exhibit F to Ms K‟s affidavit. He appears to be suggesting that there is an express trust.
12. In order to create an express trust, the following conditions need to be fulfilled:
(1) the trust must be either—
(a) completely constituted; or
(b) supported by valuable consideration.
(2) Intention to create a trust must be sufficiently expressed.
(3) The trust must be properly evidenced.
See Sir Frederick Jordan, Chapters on Equity in New South Wales (6th ed, 1947) at p 22.
13. An express trust may either be constituted by transfer or by declaration. What is required to amount to a declaration of trust is a statement, intended to be final and binding, that property owned by the settlor is thereafter held on trust for another.
Mr Massey appears to be asserting that the opening of the
[Mr Massey] account amounted to a declaration that he held property on trust for the company.
14. Assuming that that is so, the CSR submits that the requisite intention to create a trust has not been sufficiently expressed. In Kauter v Hilton (1953) 90 CLR 86 at 97, Dixon CJ, Williams and Fullagar JJ referred to the test as:
[t]he established rule that in order to constitute a trust the intention to do so must be clear and that it must also be clear what property is subject to the trust and reasonably certain who are the beneficiaries.
15. The CSR submits that there was, in the present case, neither a sufficient intention on Mr Massey’s part to create a trust, nor certainty of subject matter.
(a) No certainty of intention
16. Whether Mr Massey intended subjectively to create a trust account is irrelevant to determining whether a trust exists: Byrnes v Kendle (2011) 279 ALR 212 at 242 [115] per Heydon and Crennan JJ. In circumstances where an express trust is said to be created either orally or by informal writing, the question of whether the necessary intention is present will be resolved by examining “all the relevant circumstances”: Byrnes at 228 [54] per Gummow and Hayne JJ, referring to Kauter at 100. See also Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (in liq) (2000) 202 CLR 588 at 605 [34] per Gaudron, McHugh, Gummow and Hayne JJ.
17. The following factors militate against the notion that
Mr Massey had displayed “an outward manifestation of intention” (Byrnes at 228-229 [57]) to create a trust.
18. First, Mr Massey opened a „Business Classic Cheque‟ account in his name on 1 July 2008. The account was not opened as a trust account. Indeed, in the „Type of account‟ section on the „Signature Card‟, Mr Massey did not indicate that the account was a company trust account: see affidavit of Mr P affirmed on 4 October 2011.
19. Secondly, there is no declaration of trust.
20. Thirdly, although not necessarily required when disposing of a beneficial interest in personal property, there is no written trust deed.
21. Fourthly, between June 2009 and March 2010, over $113,000 was transferred from the [Mr Massey] account to the
“[S] Pty Ltd‟ account ([account details omitted] ([S] account) (see [Mr Massey] account statements exhibited to affidavit of
Mr P affirmed on 4 October 2011), to which Mr Massey was also the sole signatory, at a time when [S] Pty Ltd, a company of which Mr Massey was the sole shareholder and director, had been de-registered by the Australian Securities and Investments Commission for approximately four years: see affidavit of Ms W affirmed on 22 April 2010, Annexure I, pp 27-28.
22. Fifthly, in an affidavit sworn on 22 April 2010 and filed in the Federal Magistrates Court on 7 May 2010, Mr Massey said (at [12]-[13]):
Order 2 made by Magistrate Riley on the 12th April 2010 states “Until further order, the respondent and his servants and agents are restrained from withdrawing, transferring or otherwise dealing with any moneys standing to the credit of the following accounts with the ANZ Bank.”
This order has effectively frozen any funds I might have available or be able to access for the purpose of brief appropriate legal representation or making travel arrangements to Melbourne, effectively denying me the right to be heard before the Court and to have appropriate legal representation. [Our emphasis.]
(b) No certainty of subject matter
23. The CSR also submits that the subject matter of the trust is not certain, for two reasons.
24. First, property which is yet to come into existence cannot form the subject matter of a trust: Brennan v Morphett (1908) 6 CLR 22 at 30 per Griffith CJ, 33 per Barton J; Permanent Trustee Co v Scales (1930) SR (NSW) 391 at 393 per Harvey CJ in Eq. If Mr Massey is asserting that a trust was established upon the opening of the [Mr Massey] account on 1 July 2008, the trust would fail as he was not, at that time, in possession of property which could have been the subject of the trust.
25. Secondly, it is difficult to determine what proportion of the funds in the [Mr Massey] account is held on trust, as Mr Massey has used, as his own, a significant proportion of the funds flowing into that account. Those funds have subsequently been transferred to the [S] account before being used for what appears to be non-[T]-related purposes: cf In re Appleby’s Estate (1930) 25 Tas LR 126 at 127-128 per Crisp J.
(c) No communication of intention
26. If the Court accepts the CSR’s submission at [8] above that there is no evidence to authenticate the [T] documents, the Court should find that there is no evidence before the Court to demonstrate that Mr Massey communicated the declaration of trust—being the opening of the [Mr Massey] account—to the beneficiary, [T]. Such failure of communication will raise a strong presumption that no firm and irrevocable intention had been formed to create a binding trust by the declaration: Re Cozens [1913] 2 Ch 478 at 486 per Neville J, referred to with approval by Young CJ in Eq in Hyhonie.
Adverse inferences and the onus of proof
27. Mr Massey bears the onus of proving that the monies in the [Mr Massey] account are held on trust: Hyhonie. The CSR submits that Mr Massey has not discharged that onus on the limited material available to the Court. On 5 July 2011, the Court ordered that Mr Massey produce documents described in the Schedule to the Enforcement Summons by 30 August 2011. As far as the CSR is aware, no documents have been forthcoming.
28. In considering whether the limited material before the Court is an appropriate basis upon which to reach a reasonable decision, the Court needs to have regard to “the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so”: Ho v Powell (2001) 51 NSWLR 572 at [14] per Hodgson JA. One matter that is relevant for this purpose is whether Mr Massey attends the examination. As the purported trustee of the trust, one would expect that Mr Massey would be a person likely to be able to speak on a fact in issue in these proceedings, namely, whether the trust is valid. If Mr Massey does not attend the hearing, the Court ought to draw an inference that his evidence, if adduced, would not have assisted his case: Jones v Dunkel (1959) 101 CLR 298 at 308 per Kitto J, 312 per Menzies J.
I find that no trust was created.
Conclusion
Having regard to the above I find that it is appropriate on the facts of this case to issue a third party debt notice in terms of that sought by the applicant. Lest there be any doubt held by or on behalf of the ANZ Bank as the payee named in the notice, I am satisfied that the concerns they quite properly raised with the applicant solicitor in relation to compliance with the third party debt notice have no foundation. To this end I grant leave to the solicitors for the applicant to provide a copy of these reasons to those who advise the payee, should the need arise. I am sure the payee is aware of its obligation to comply with a third party debt notice pursuant to the rules.
The third party debt notice may issue forthwith. I direct the solicitors for the applicant to notify the respondent at his last known address about the orders that I have made today, as well as providing him with a copy of my reasons for judgment. I grant leave to the respondent to apply before me to vary, suspend or set aside my order at any time within the next 28 days subject to the respondent:
(1)filing an application in the appropriate form supported by an affidavit explaining his non-attendance at Court;
(2)filing a sworn financial statement containing his up to date financial information;
(3)complying with all orders and directions made for disclosure and production of documents in these proceedings to date;
(4)if he asserts that the funds covered by the third party debt notice are not funds owned by him or available to satisfy the obligation in question, that he produces evidence not dealt with in these reasons to support his assertions; and
(5)the matter being heard and determined by Federal Magistrate Altobelli subject to his reasonable availability.
I am satisfied that the directions I make additional to the order for issue of the third party debt notice are necessary to protect the interests of justice in the circumstances of this case, but I will extend to the respondent the opportunity to make submissions to me about the appropriateness of the conditions I have imposed.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Date: 3 April 2012
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