Edward Walter Weeden v Nina Mary Burke

[2009] NSWDC 148

CITATION:	Edward Walter Weeden v Nina Mary Burke [2009] NSWDC 148
HEARING DATE(S):	9/6/09 - 12/6/09
JUDGMENT DATE:	24 June 2009
JURISDICTION:	Civil
JUDGMENT OF:	Rolfe DCJ
DECISION:	See paragraph 57 and following of Judgment
CATCHWORDS:	Property (Relationships) Act 1984 - Adjustment of interest in Property - Steps involved - Valuing Net Asset Pool - Method to be adopted - Consideration of Financial and other contributions
LEGISLATION CITED:	Property (Relationships) Act 1984 Family Law Act 1975 (Cth)
CASES CITED:	Bilous v Mudaliar (2006) NSW LR 615 Baker v Towle (2008) NSW CA 73 In the marriage of Turnbull (1991) Fam CA 26 (8/5/91) Paino v Paino (2008) NSW CA 276 Elsey v Elsey (1996) Fam CA 131
PARTIES:	Edward Walter Weeden (Plaintiff) Nina Mary Burke (Defendant
FILE NUMBER(S):	5637/07
COUNSEL:	L Snelling (Plaintiff) A Givney (Defendant)

JUDGMENT

Background

1 The plaintiff, Edward Walter Weeden, met the defendant, Nina Mary Burke, in 1974 and they commenced cohabitation shortly thereafter. Mr Weeden is now aged 65 years and Ms Burke 51 years. They have two children, Jodie and Rebecca, aged 31 years and 25 years respectively.

2 In 1979, together with his business partner, John Vollman, the plaintiff paid $72,000 to purchase a semi-rural property at Leets Vale (the “Property”). In his valuation report dated 23 June 2008 (part of exhibit 10), Mr Deguara said that the entire southern boundary and a large part of the western boundary of the Property borders the Hawkesbury River with good water and mountain views.

3 In about 1992 or 1993, after the dissolution of his partnership with Mr Vollman, one 2-acre block, being part of the Property, was sold to a third party. Another 2 acre block was transferred to Mr Vollman in return for which Mr Vollman transferred to the plaintiff the remainder of his half share in the Property, for which the plaintiff paid Mr Vollman $80,000. As a result of the sale, the size of the Property was slightly reduced to approximately 17.6 hectares.

4 The plaintiff and the defendant had moved to the Property in about 1980. The plaintiff, who was a builder by trade, did some renovation work on the old cottage standing on the Property. The plaintiff also constructed a number of sheds so he could conduct his business. That business was carried on through the company known as Thoroughbred Conversions Pty Ltd (the “Company”). The Company’s business was mainly in the nature of restoration and enhancement work done to motor vehicles as well as some servicing and repair work. From time to time the plaintiff did some work as a builder. Although she disputed it, I am satisfied that between 2000 and 2005 the plaintiff occasionally serviced the defendant’s motor vehicle.

5 The domestic relationship between the plaintiff and the defendant came to an end in 1997, but they both continued to reside at the Property with their daughters.

Local Court Proceedings in 1999

6 On 10 February 1999, in proceedings between the parties in which relief was sought pursuant to the Property (Relationships) Act 1984 (the “Act”), the Local Court at Parramatta made orders by consent in accordance with the terms of settlement signed by the parties which are Annexure A to Ms Burke’s affidavit made on 24 June 2008.

7 Under the terms of settlement the plaintiff and the defendant agreed that the Property would be transferred to Ms Burke and the parties’ two daughters to be held by the three of them as joint tenants. In return, the defendant was to pay the plaintiff $70,000 so that the mortgage on the Property in favour of National Australia Bank Limited could be discharged, with any balance to be kept by the plaintiff. Since their daughter Rebecca was a minor at the time the Local Court at Parramatta made its orders, it was agreed that the plaintiff and the defendant would hold her share of the Property in trust until she turned 21 years of age.

8 Settlement occurred on 4 May 1999. After the mortgage in favour of National Australia Bank Limited was discharged, the plaintiff received approximately $27,000. However, in order for this to occur, the Property had to be mortgaged again and, since the plaintiff had become a registered proprietor in his capacity as co-trustee with Ms Burke of Rebecca’s one-third share in the Property, the incoming mortgagee obtained a registered mortgage executed by the plaintiff and the defendant in their capacities as co-trustees and from the defendant and the parties’ daughter Jodie as beneficial owners in their own right.

Resumption and Cessation of Cohabitation

9 Although the terms of settlement provided that the plaintiff was to vacate the Property at the expiration of 18 months after the settlement on 4 May 1999, for practical purposes, this did not occur because the parties resumed cohabitation. In this respect, neither party was a good historian. The plaintiff’s best recollection was that cohabitation resumed in late 2000. The defendant’s best recollection was that the parties resumed cohabitation in 2001. Both parties agreed in their evidence to the Court that cohabitation resumed around about the time that the cottage on the Property was rented out. In this respect, the rent receipt book (exhibit 2) discloses that rent was paid from 23 May 2001. Accordingly, the Court is satisfied that the parties resumed cohabitation in May 2001.

10 It is not in dispute that cohabitation ceased in November 2005 when the defendant commenced to live on her own in the cottage and the plaintiff remained living in one of two demountable buildings located on the Property not far from the cottage (See the sketch plan, Exhibit 2).

Relief Sought

11 The plaintiff commenced these proceedings on 14 December 2007 seeking an adjustment of interest in the parties’ property pursuant to the provisions of s 20 of the Act. Since the proceedings were commenced ever so slightly more than two years after cohabitation ceased, the plaintiff needs leave to apply for the relief sought. In the circumstances, it is obvious that greater hardship would be caused to the plaintiff if leave were not granted under s 18 of the Act. The defendant did not submit otherwise. Accordingly, the Court proposes to grant the plaintiff leave to make his application for the relief sought.

12 Section 20 of the Act provides:

“20 (1) (Relevant contributions). On an application by a party to a domestic relationship for an order under this Part to adjust interests with respect to the property of the parties to the relationship or either of them, a court may make such order adjusting the interests of the parties in the property as to it seems just and equitable having regard to-


(a) the financial and non-financial contributions made directly or indirectly by or on behalf of the parties to the relationship to the acquisition, conservation or improvement of any of the property of the parties or either of them or to the financial resources of the parties or either of them; and

(b) the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the parties to the relationship to the welfare of the other party to the relationship or to the welfare of the family constituted by the parties and one or more of the following, namely:-

(i) a child of the parties;

(ii) a child accepted by the parties or either of them into the household of the parties, whether or not the child is a child of either of the parties.

20 (2) (Declaration of title or rights) A court may make an order under subsection (1) in respect of property whether or not it has declared the title or rights of a party to a domestic relationship in respect of the property.”

13 Any orders under s 20 must be made by the Court solely on the grounds of the justice and equity of the case: Bilous v Mudaliar (2006) NSW LR 615. In determining what order is just and equitable it is necessary for the Court to identify the property of the parties and make a valuation of it. In addition, it is necessary for the Court to identify and value the respective contributions of the parties of the types referred to in s 20 of the Act: Baker v Towle (2008) NSW CA 73.

14 Counsel for the defendant submitted that a just and equitable result would be arrived at if the plaintiff received 25% of the net asset pool. Assuming the plaintiff received the plant, machinery and equipment relating to the Company’s business, counsel calculated that his client ought pay the plaintiff the amount of $25,000. This calculation was predicated on the basis, first, that the Court ought deduct from the value of the parties’ assets an amount of $68,000 being the amount owed at the date of the hearing under the mortgage over the Property. Secondly, it was submitted that the Court ought attribute a value to the plant, machinery and equipment of the Company’s business in the amount of $74,425.

15 On the other hand, counsel for the plaintiff submitted that after the Court determined the value of the net asset pool, that a just and equitable result would be a 50:50 division thereof.

Valuation of Net Asset Pool

16 The Court has determined that the net asset pool is currently worth $382,655.00 calculated as follows:

Assets

The Property (⅓ interest) $383,333.00

1996 Commodore motor vehicle 4,000.00

Plant machinery and equipment 44,655.00
___________
$431,988.00

Liabilities

Mortgage (⅔) 45,333.00

Trade Creditors 4,000.00

___________
49,333.00

Total Assets $431,988.00

Total Liabilities 49,333.00

___________
Value of Net Asset Pool $382,655.00

17 The defendant’s valuer, Mr Deguara, valued the Property at $1.1 million as at 23 June 2008. His opinion was that if the renovation work carried out during the course of the parties’ relationship had not been done, then the Property would have been worth $50,000 less.

18 The plaintiff’s valuer, Mr Kozor, valued the Property at $1.2 million as at 3 December 2008.

19 On 17 March 2009 the two valuers had a conference, as a result of which they agreed that the current market value of the Property was $1,150,000.

20 The Court and the parties accept this valuation. Accordingly, the defendant’s one-third interest in the Property is worth $383,333.

21 In relation to the mortgage over the Property, I have allowed for an amount of $45,333 to be deducted on the basis that this represents two-thirds of the amount owing under the mortgage ($68,000). It would not be just and equitable to deduct the full amount owing under the mortgage as the parties’ older daughter, Jodie, is jointly and severally liable, as a mortgagor, to the mortgagee, with her parents.

22 Although counsel for the plaintiff submitted that I ought only allow $22,667 to be deducted for the mortgage, representing the defendant’s one-third liability as a mortgagor in her own right, I have rejected the submission because, first, the plaintiff and defendant are both liable to the mortgagee in their capacity as co-trustees of their youngest daughter Rebecca’s interest. Secondly, there is no evidence before the Court that, as co-trustees, the plaintiff and defendant are entitled to be indemnified by their daughter, Rebecca, who was a minor when the mortgage was executed.

23 In the marriage of Turnbull (1991) Fam CA 26 (8 May 1991), the Full Court of the Family Court of Australia stated that it was the task of the trial Judge, and not the valuers called on behalf of the parties, to arrive at the proper value of the property of the parties. Although that case was concerned with matters arising under the Family Law Act 1975 (Cth), I see no reason why this approach should not be adopted by this Court in valuing the plant, machinery and equipment owned by the Company. In this respect, the defendant appointed Pickles Valuation Services to provide a valuation of the plant, machinery and equipment (exhibit 3).

24 Pickles Valuation Services attributed an auction value to the plant, machinery and equipment of $34,875. In the alternative, Pickles Valuation Services attributed a market value to these items in the amount of $74,425. The valuers did not explain their methodology. Nevertheless, the Court is entitled to take their opinion into account in doing the best it can to determine the value of the plant, machinery and equipment (Paino v Paino (2008) NSWCA 276).

25 Counsel for the defendant submitted that the Court ought accept the market value of the items of plant, machinery and equipment because first, it was agreed between the parties that Mr Weeden should receive them as part of the adjustment order made by the Court pursuant to s 20 of the Act. Secondly, the Court should infer that Mr Weeden would continue to use these items in the Company’s business which should therefore be treated as a going concern. Whilst it is true that sometimes fair market value is used as opposed to auction value where the evidence is clear that there is not going to be a forced sale of a business (Elsey v Elsey (1996) Fam CA 131), there is no hard and fast rule.

26 As a starting point, I do not propose to use the auction value because Mr Weeden intends to take the plant, machinery and equipment with him and to try to make some money out of the business.

27 Because of the reality of the situation, I do not consider it would be appropriate to ascribe full market value to the plant, machinery and equipment.

28 In circumstances such as the present, the Court infers that the Company’s business is not worth anything as a going concern, having regard to the fact that Pickles Valuation Services did not proffer any valuation of it, as well as taking into account the Company’s financial performance over the last six or seven years.

29 The reality is that it will be highly unlikely that the business will continue for very long (it could become a hobby and no more). Also, the Court has to bear in mind the worth of the items to Mr Weeden. Mr Weeden is aged 65 years, he has a bad back as a result of a bad fall which he suffered whilst renovating the cottage on the Property and he told the Court that he was about to apply for the old age pension. It seems unlikely, therefore, that Mr Weeden will be able to work for very long. The Court also takes into account the possibility that Mr Weeden will not be able to find a suitable property to place the plant and equipment on and to attempt to carry on with the business. In those circumstances, Mr Weeden might very well be forced to sell the plant, machinery and equipment at auction in one job lot or separately.

30 Taking all these matters into account, I consider it appropriate to discount the market value of the plant, machinery and equipment by 40% and so I arrive at a figure of $44,655.00.

Financial Contributions: Cost of Renovations

31 I turn now to consider the contributions of the parties.

32 The plaintiff’s case is that he carried out significant renovations to the cottage on the Property during the time that the parties cohabited between 2001 and 2005. He also says he made financial contributions in the form of meeting the expenditure for many of the items used in the renovation work, as well as contributing to outgoings and household expenses.

33 The defendant’s case is that she made the overwhelming contributions to the parties’ relationship during its four and half years by bringing the Property into the relationship, meeting outgoings such as rates, electricity and telephone, paying interest on the mortgage (as well as some reductions in principal from time to time), meeting expenses incurred in the renovation work done on the cottage and providing some assistance to the plaintiff with her labour during the course of the renovation work.

34 Much of the parties’ dispute about their respective contributions related to the cost of the renovation work done on the cottage. In this respect, a photograph taken before work was commenced (exhibit C) demonstrates that the cottage was badly in need of repair.

35 The renovation works done by the parties included the installation of a new kitchen, complete renovation of the main bathroom, painting the house inside and out, enclosing the verandah area to create a fourth bedroom, the installation of new carpeted and timber floor coverings to the main living areas, roofing work and the laying of a bitumen road surface from the entrance to the Property to and around the cottage and other dwellings on the Property. The result was an attractive, modern, colonial style residence as depicted in the photographs which are contained in the reports of the two valuers (exhibit 10).

36 My assessment of each of the parties’ evidence about their financial contributions to the cost of the renovation work was that each was affected by his and her emotions arising from the break down of their relationship, with the result that each of them claimed to have made payment of most of the expenses incurred. In the case of Mr Weeden, my observation was that he was angry that his version of events was challenged in cross-examination. The distress he suffered as a result (which was no fault of counsel for the defendant) made it hard for him to give accurate evidence to the Court about the amount he had expended on the renovations. At the same time, in my observation and assessment, Ms Burke’s emotional reaction caused her to paint a picture of Mr Weeden as being a person who had run up a large debt on an American Express card and who, prior to 1999, had received demands from the mortgagee, National Australia Bank Limited, to repay the mortgage debt, failing which she said the bank had threatened to exercise its power of sale over the Property. These allegations were made in order to persuade the Court that Ms Burke’s evidence was more reliable. The allegations are not supported by the evidence and I reject them. This, therefore, casts doubt on the accuracy of Ms Burke’s evidence as well. Having said that, I do not consider either party deliberately sought to give untruthful evidence to the Court; rather, each was carried away by his and her emotions.

37 It is not possible to determine with absolute accuracy the amount expended by the parties on the renovation work to the cottage because a lot of things were paid for in cash. In this respect, counsel for the plaintiff submitted that Mr Weeden had spent between $30,000 to $50,000 on the works and Ms Burke had spent $10,000.

38 Each party tendered documents to support their respective positions. In the case of the plaintiff, receipts for payments made to sub-contractors and for the cost of materials totalling $18,780.47 were in evidence as exhibit B. In the case of the defendant, various credit card statements and bank statements were tendered as exhibit 4 which included the schedule at the front in which the defendant sought to identify various payments she had made referrable to the work. These items totalled $23,871. They include payments made by the defendant to H R King ($5,300 in round figures) which are recorded in Ms Burke’s credit card statements. On the other hand, the receipts for payments to H R King were included in the receipts in exhibit B.

39 In respect of exhibit 4, the plaintiff submitted that some of the payments were not for work done on the cottage and I am satisfied there is some truth in that.

40 After allowing for the fact that both parties included in their calculations the payments to H R King, the total amount of the receipts and payments in exhibit B, when added to the items in the schedule which is part of exhibit 4, comes to $37,350 (round figures).

41 Some allowance has to be made for cash payments made by the parties which are not evidenced by receipts. For example, the plaintiff said that in return for substantial repair work done by him to motor vehicles, a friend laid the bitumen path and driveway to the cottage and other dwellings on the Property. The plaintiff estimated that, after deducting out of pocket expenses, he would have charged the friend in the order of $6,000 for the work he did on the friend’s vehicles. As well, I am satisfied the plaintiff paid cash of $1,000 to his nephew for roof iron and $3,000 cash for timber obtained from a local saw mill. The plaintiff also said Mr Gooderson was paid about $800 per week cash for work done over three months in assisting Mr Weeden in carrying out the renovation work to the cottage. This amounts to approximately $9,600. These cash payments which were made by both parties, including the contra arrangement in relation to the bitumen path, amount to $19,600.

42 As stated earlier, it is not possible to be precise about the total amount spent on the renovation work, particularly having regard to the fact that there are no documents to support all of the cash payments that were made and so a significant allowance ought be made by the Court for inaccuracies and exaggerations in this regard. On that basis, doing the best I can, I allow $10,000 for cash payments of which the plaintiff contributed $5,000 and the defendant $5,000.

43 In terms of the receipts in exhibit B there can be no doubt that of these an amount of $7,000 (round figures) is referrable to the plaintiff because they are supported by cheque butts from the Company’s account and the plaintiff’s evidence was that he received money from time to time from the Company in reduction of amounts which it owed to him under his loan account recorded in the Company’s books. I have also allocated half the H R King payments to the plaintiff in the amount of $2,600. As to the balance of the receipts in exhibit B amounting to $6,600 (round figures), on the balance of probabilities, I am satisfied that this amount represents monies equally paid by each of the plaintiff and the defendant.

44 With regard to the items in the schedule to exhibit 4, some allowance should be made for the fact that they do not all relate to work done on the Property. Accordingly, I arrive at a figure of $17,000 as the amount spent by the defendant which is recorded in the schedule. This includes one half share of the payments made to H R King.

45 Approaching the matter on the above basis I arrive at a figure of $43,000 (round figures) spent by the parties on the renovation work of which the plaintiff contributed approximately $18,000 and the defendant $25,000.

46 In terms of time spent by the parties on the renovation work, I am satisfied that Ms Burke helped out with the installation of the floating floor after the plaintiff had his bad fall and had been hospitalised for three days. Some assistance was also provided by friends of the parties and Mr Gooderson did work as well. In this respect, as between the two of them, I attribute 10% of the labour done on the cottage to Ms Burke and 90% to Mr Weeden.

47 When giving evidence about the work performed on the cottage, Mr Weeden impressed me and I have no doubt that his evidence in this respect was accurate. His evidence was that the work was done over a long period of time, but his best estimate was that, if the work was condensed, he was occupied seven days a week for six months. Ms Burke agreed that he had put in six months work but suggested it was on a part-time basis. I do not accept her evidence in this regard because my assessment was she sought to play down the plaintiff’s involvement when he had substantially renovated a cottage in which she now resides. In addition, Ms Burke was working as a receptionist at South Sydney Juniors five days a week and she was not in a position to observe, with any accuracy, how much time the plaintiff spent on the renovations.

48 Although the plaintiff is a builder by occupation, no evidence was adduced as to the cost of the work if another builder had been engaged. However, if one were to allow, say, $1,500 per week for this, then it will be seen that through Mr Weeden’s endeavours the parties saved about $40,000 and Ms Burke has had the benefit of this resource.

Further Financial and Other Contributions

49 In terms of other contributions, I am satisfied that the vast majority of the outgoings on the Property were paid for by the defendant, as were the household expenses. I am satisfied that the contributions in this regard were 20:80 as to the plaintiff and the defendant respectively. I have reached this conclusion because the evidence establishes that the defendant was in regular employment and earned more than the plaintiff whose taxable income was negligible. The inference the Court draws is that the plaintiff earned about $10,000 per annum by way of cash. I am also satisfied he received the amounts of $8,520.45 and $22,484.45, being loan repayments made to him by the Company as set out in paragraphs 5 and 6 of his affidavit. I am satisfied that the second of these amounts went towards the parties’ household expenses and the plaintiff’s personal expenses and that the first amount went towards the renovation work (as part of the cash payments the plaintiff made). The second amount did not go towards the renovation work because that had been completed by and large before the plaintiff received the amount in question from the Company. In addition, I am satisfied that the plaintiff applied some of the amount of $27,000 which he received from the 1999 property settlement as a contribution towards the parties’ living expenses, the renovation work done by him on the cottage and his personal expenses. The balance was reinvested in the Company.

50 The plaintiff has had the benefit of living at the Property rent free and will continue to do so, by agreement with the defendant, until 31 January 2010 if needs be. The plaintiff also was able to conduct his business on the Property without being charged any occupation or license fee for same.

51 I calculate that, during the course of their relationship, Ms Burke’s weekly wage after tax was in the order of about $500. Ms Burke also received rent from the cottage. The receipts in the rent book (exhibit 6) total $7,085.00. In this respect, although Ms Burke paid interest on the mortgage, the principal amount owing at the present time is only $2,000 less than the amount advanced in the first place. In this regard, the defendant has had the benefit of the plaintiff being liable as a mortgagor, a matter not to be disregarded considering the defendant was able to use the mortgage facility for her own use and benefit, as well as that of the parties’ two daughters. For example, $48,000 was drawn down from the facility to enable the two daughters to purchase a boat. A further $16,000 was drawn down to enable one of the daughters to enrol in a beauticians course. The evidence establishes that the daughters have repaid both amounts.

52 In terms of other financial resources, the defendant has superannuation in the amount of $40,000. Of this, her counsel calculated that $5,000 was attributable to the period during which the parties were in their relationship and counsel for the plaintiff did not dispute this calculation.

53 On the other hand, the plaintiff has no superannuation or savings.

54 The parties have agreed that the Court should make an order transferring to their daughter Jodie the one-third interest which they hold on trust for her. The effect of this order will be that the defendant will have financial resources available to her in terms of both daughters being gainfully employed and able to contribute if a new mortgage is taken out.

Conclusion

55 In the circumstances, the justice and the equity of the case demands that there be an adjustment in the property interests of the parties. So much is conceded by the defendant. In this respect, the suggested adjustment of 25% does not accurately reflect the contributions of the plaintiff and undervalues them. On the other hand, an adjustment of 50% is unjustified.

56 The Court considers that an adjustment of 35% is appropriate. Accepting the parties’ agreement that Mr Weeden will retain the plant, machinery and equipment, this results in the defendant having to pay the plaintiff $89,274 calculated as follows:

Net Asset Pool $382,655.00

35% Adjustment $133,929.00

Less Value of Plant, Machinery & Equipment $44,655.00
___________

Payment to be made to the Plaintiff $89,274.00

ORDERS

57 The orders of the Court are as follows:

(1) Grant leave to the Plaintiff to commence these proceedings; such order is made nunc pro tunc.

(2) Declare that the Plaintiff is the sole and beneficial owner of:-


(a) Shares in Thoroughbred Conversions Pty Limited.

(b) Plant, machinery and equipment referred to in Pickles Valuation Services report dated 9 October 2008.

(c) Demountable residence situated behind the workshop where the Plaintiff conducts the business of Thoroughbred Conversions Pty Limited.

(d) Steel shed from which the Plaintiff conducts the business of Thoroughbred Conversions Pty Limited.


(3) Order the Plaintiff and the Defendant to execute and deliver to their daughter Rebecca Weeden a transfer in registrable form of the interest in the Property which they hold on trust for her.

(4) Order the Defendant to use her best endeavours to join with the other registered proprietors of the Property in having the mortgage currently registered on the title to the Property discharged. Pending such discharge, order that the Defendant indemnify the Plaintiff in relation to any debt owed to the mortgagee and secured under the mortgage.

(5) Order the Defendant to pay to the Plaintiff the sum of $89,274.

(6) On or before 4pm on 31 January 2010 the Plaintiff shall do all things and take all steps necessary to vacate the Property and on or before 4pm on 31 January 2010 give to the Defendant vacant possession of the Property.

(7) On or before 4pm on 31 January 2010 the Plaintiff is at liberty to remove all plant, machinery and equipment described in the Pickles Valuation Services report dated 9 October 2008 and the demountable residence and the steel shed. Time shall be of the essence in respect of this order.

(8) If the Plaintiff fails to remove any item or items referred in accordance with Order 7, the Defendant will be at liberty after 31 January 2010 to dispose of such item or items as she considers appropriate on the basis that the Plaintiff will be taken to have abandoned any such item or items

(9) The Plaintiff is restrained from residing on the Property after 4pm on 31 January 2010.

(10) In the event that either party fails or neglects to sign any document required to give effect to any order of the Court then the Registrar of this Court is authorised to sign such document and to give effect to such document on behalf of such party.

(11) Liberty to Apply on 3 days notice.

(12) Direct that the exhibits be returned.

58 Order 4 is predicated on the basis that the parties will reach agreement on the timing of the payment. If not, the parties should exercise the Liberty to Apply granted under Order 11 above.

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