Hammond Villages Pty Ltd trading as Hammond Village Gold Coast v Jackson
[2013] QCAT 497
| CITATION: | Hammond Villages Pty Ltd trading as Hammond Village Gold Coast v Jackson [2013] QCAT 497 |
| PARTIES: | Hammond Villages Pty Ltd trading as Hammond Village Gold Coast (Applicant) |
| v | |
| Ms Vicki Jackson (Respondent) |
| APPLICATION NUMBER: | OCL065-12 |
| MATTER TYPE: | Other civil dispute matters |
| HEARING DATE: | 1 May, 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Ann Fitzpatrick, Member |
| DELIVERED ON: | 20 September, 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The Tribunal orders that: 1. Ms Vicki Jackson pay to Hammond Villages Pty Ltd trading as Hammond Village Gold Coast arrears of site rent, service charges and interest in the sum of $13,507.87 by 21 October 2013; 2. The unwritten site agreement between Ms Vicki Jackson and Hammond Villages Pty Ltd trading as Hammond Village Gold Coast be terminated on 21 February 2014, if the manufactured home at lot 173 is not earlier sold and assigned in accordance with the Manufactured Homes (Residential Parks) Act 2003. 3. Ms Vicki Jackson give Hammond Villages Pty Ltd trading as Hammond Village Gold Coast vacant possession of lot 173 on or before 21 February 2014, if the manufactured home is not earlier sold and assigned in accordance with the Manufactured Homes (Residential Parks) Act 2003. 4. Ms Vicki Jackson pay to Hammond Villages Pty Ltd trading as Hammond Village Gold Coast a monthly site rent of $515.52 (or as subsequently varied in accordance with the site agreement dated 2 September 2004) together with all service charges incurred by her from 1 May 2013 to the date of termination of the site agreement or an earlier date of sale and assignment of the manufactured home; 5. Hammond Villages Pty Ltd trading as Hammond Village Gold Coast deliver to Ms Vicki Jackson a statement of outstanding site rent and service charges for the period 1 May 2013 to the date of this Order, which Ms Jackson must pay within 14 days from the date of delivery of the statement; 6. By 21 October 2013, Ms Vicki Jackson dispose of rubbish in and around the manufactured home at lot 173 so that it achieves a reasonable state of cleanliness and repair and by 21 October 2013, Ms Vicki Jackson engage a pest controller to treat the manufactured home and lot 173 for pests and vermin. |
| CATCHWORDS: | Manufactured Homes – definition of Home Owner – unwritten site agreement – termination of site agreement – arrears of site rent and service charges Manufactured Homes (Residential Parks) Act 2003 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Hammond Villages Pty Ltd trading as Hammond Village Gold Coast represented Mr Neville Murray, Park Manager. |
| RESPONDENT: | Ms Vicki Jackson, self- represented. |
REASONS FOR DECISION
The Parties
The Applicant is the registered owner of Hammond Village, Coombabah, a Residential Park as defined in section 12 of the Manufactured Homes (Residential Parks) Act 2003 (the Act). Mr Neville Murray, the Park Manager conducted the hearing on behalf of the applicant and gave evidence.
The respondent, Ms Jackson was self- represented.
Ms Jackson has resided at the Residential Park in a manufactured home on lot 173 since approximately 2007, when she took up residence to care for her aged father in that home.
The Evidence
The material filed by the parties and evidence given at the hearing reveals the following matters.
The site agreement entitling occupation of the home at the site was entered into by Ms Jackson’s father, Kenneth Jackson, dated 2 September, 2004 (the site agreement). Ms Jackson denies that the signature on the site agreement is that of her father, however, no forensic evidence in this regard was called. I accept the evidence of Mr Murray and find that the agreement was signed by Mr Jackson on that date.
Following a meeting between the Park Manager, Mr Murray and Ms Jackson and her father on 3 May, 2006, an Ownership Certificate was issued by the Park Manager recording Ms Jackson as having purchased the home at lot 173. There is a dispute as to whether a Form 7 Notice of Proposed Sale and Assignment, copy of the Site Agreement and Information Statement were provided to Ms Jackson at that meeting. Mr Murray says that he provided the documents to Ms Jackson at the conclusion of the meeting. Ms Jackson denies that occurred. The parties are agreed that no Form 8 Form of Assignment was signed by them.
Ms Jackson’s evidence is that she was the sole beneficiary of her father’s estate and that prior to his death she was his attorney pursuant to a power of attorney dated 22 July, 2002.
Mr Jackson paid the site rent and service or utility charges in accordance with the site agreement until he passed away in 2009.
Ms Jackson continues to live in the home at lot 173, however she has not paid the site rent or service charges on a regular basis, despite demand. Mr Murray’s evidence is that sums of $300 were paid on 9 July, 21 July and 19 October, 2010 respectively.
By other proceedings in this Tribunal, being matter number OCL170-10 the Park Owner alleged Ms Jackson had failed to pay site fees which it asserted were owing in the sum of $10,185.17, inclusive of interest as at 5 November, 2010.
Following a compulsory conference in that matter, it was ordered by consent on 8 August, 2011 that:
1. Hammond Villages Pty Ltd remove the two sheds on site 174, 22 Hansford Road, Coombabah, Qld which encroaches onto site 173 within 60 days of the date of this Agreement/Order.
2. Vicki Kathleen Jackson will pay Hammond Villages the sum of $5,000 (five thousand dollars) for outstanding site fees by 4.00pm on 5 September, 2011.
3. From 1 September, 2011 Ms Jackson will make all future payments due to Hammond Villages in accordance with the site agreement.
4. The application OCL 170-10 is discontinued.
Mr Murray has given evidence that Ms Jackson paid the sum of $4,000.00 in purported compliance with the Tribunal’s order on 5 September, 2011, but has made no further payments since then.
The applicant’s evidence is that it sent a Form 6 Notice to Remedy Breach to Ms Jackson on 28 May, 2012, alleging breach of the following clauses of the Site Agreement:
(a) Clauses 2.1, 2.5 and 3 - payment of licence fee and charges
(b) Clause 4.3(a) and (b) – keeping the site in good order and free from pests.
In support of its allegations the applicant filed material containing a schedule setting out its calculations of moneys owed.
The applicant’s evidence is that the site is unkempt and vermin are present. It says it has received complaints from other occupiers at the Park. A copy of 2 written complaints was filed although the author was not called to give evidence. Mr Murray’s evidence is that he received a number of verbal complaints and asked that they be put in writing. Photographs of the exterior of the home at lot 173 were tendered and Mr Murray’s evidence is that the home and lot remain unkempt. This is denied by Ms Jackson.
Ms Jackson says that the Notice to Remedy Breach was not received by her until 16 July, 2013 and that pages of the attached site agreement were missing which related to the alleged breaches.
On 21 July, 2011 notice of entry was issued to Ms Jackson to allow a pest, building and structural soundness inspection on 26 July, 2011, however, Mr Murray says that Ms Jackson refused entry as she had on all occasions when informal notice was provided to her of a request to enter. Ms Jackson says that a Gold Coast City Council Inspector did an inspection and reported that there were only a couple of maintenance issues.
The applicant seeks an order that the Tribunal terminate the site agreement pursuant to section 38(1)(a) of the Act and that Ms Jackson provide vacant possession. It also seeks payment of outstanding site rent, service charges and interest and any other appropriate Orders.
The applicant claims the sum of $16,605.73 as at 1 May, 2013 calculated as follows:
(a) outstanding amount per QCAT decision due 5/9/11 - $1,000.00
(b) interest thereon at the rate of 18.00% as per clause 2.8 of the Site Agreement - $297.86
(c) licence fees since 1 September, 2011 calculated in accordance with Schedule 1 - $10, 744.56
(d) interest thereon at the rate of 18.00% as per clause 2.8 of the Site Agreement calculated in accordance with Schedule 1A - $1,533.53
(e) service charges calculated in accordance with Schedule 2 - $1,059.83
(f) interest thereon at the rate of 18.00% as per clause 2.8 of the Site Agreement calculated in accordance with Schedule 2A - $169.95
(g) costs associated with this action as per Clause 4.1 of the Site Agreement - $1,800.00.
Ms Jackson’s contention is that she has no liability to pay any site rent or other charges because she has never entered into a site agreement with the Park Owner.
Ms Jackson’s evidence is that she is a licensed real estate agent, although she has never had any familiarity with the Act.
In relation to the consent Order made in the other proceedings Ms Jackson says that she agreed to the Order under duress. She did not elaborate on the allegation other than to say that the Member ignored her submissions that there was no site agreement with her.
When asked in cross examination why she considered that she could live at the Park free of any charges, Ms Jackson did not respond directly, but said that she did not want to continue to live at the Park, but wished to return to live in the Hunter Valley.
Ms Bonney, a resident of the Park was called to give evidence on behalf of Ms Jackson. I have attributed little weight to her evidence on the basis that she gave the appearance of being very confused.
In making her final submissions Ms Jackson said that she is in a vulnerable position and could be forcibly removed despite the fact that she is the owner of the manufactured home at the Park. She maintains that the applicant through Mr Murray has failed to comply with the Act. Finally, she said that she was prepared to pay electricity charges and utilities but would not pay the site rent, because there is no site agreement which sets out an agreement as to what she is to pay.
Ms Jackson said that if her home were to be sold it would take at least 9 months to sell. She said that it would be impossible to move the manufactured home and that it would have to be sold.
Mr Murray submitted that Ms Jackson had been living at the Park on the terms of the site agreement.
Legislation
Section 140 of the Act confers jurisdiction on this Tribunal to resolve a site agreement dispute, which is defined at section 14A of the Act to mean a dispute between the parties to a site agreement about the parties’ rights and obligations under the agreement or the Act.
A site agreement is defined at section 14 to mean an agreement between a park owner and a home owner that provides for rental, positioning of the manufactured home use of communal facilities and other matters permitted by the Act.
The Act requires that the site agreement be in writing, however, section 25(7) provides that nothing in the section affects the enforceability of a site agreement that is not written.
Assignment of a home owner’s interest in a site agreement is dealt with in the Act. Given that the purported assignment of the site agreement in favour of Ms Jackson occurred in 2006, the provisions of the Act as it was at that time are relevant in relation to this issue.
The Act refers to sale of a home and assignment of the seller’s interest in the site agreement. The selling of a manufactured home is defined to include disposition other than by sale, for example, by gift.
The Act provides that:
·the seller may only assign the seller’s interest in the site agreement by written agreement (section 44);
·the seller must give the park owner notice of the proposed assignment of the seller’s interest in the site agreement (section 45. The approved Form is Form 7);
·within 7 days the park owner must give the buyer a copy of the site agreement and the disclosure documents for the residential park (section 45(2));
·the assignment of the seller’s interest in the site agreement must be in the approved form (section 47 – approved Form 8);
·the assignment of the seller’s interest in the site agreement is not effective unless the park owner has consented to the assignment. The park owner may give the consent only by signing both copies of the form of assignment (section 48 – approved Form 8);
·the seller must as soon as practicable after receiving a copy of the form of assignment give a copy of the form and the seller’s copy of the site agreement to the buyer (section 51).
The applicant has sought an order from the Tribunal terminating the site agreement. Section 38 of the Act provides that the Tribunal may make an order terminating an agreement, if, relevantly; the home owner has contravened a term of the agreement and has failed to remedy the contravention after being given a notice to remedy the breach.
Section 39 provides that if a termination order is made the Tribunal must order that vacant possession of the site be provided on or before the termination date.
Issues to be determined
The facts and evidence outlined earlier in this Decision raise the following matters for determination:
(a) does the Tribunal have jurisdiction to consider the application. In particular is the respondent a “home owner” as defined by the Act, so as to be a party to a site agreement dispute?
(b) was the site agreement between the late Mr Jackson and the applicant assigned to Ms Jackson?
(c) is there an unwritten site agreement in place between the applicant and Ms Jackson and if so what are its terms?
(d) is the applicant entitled to the orders it seeks?
Is Ms Jackson a home owner?
Section 8 of the Act provides, relevantly, that:
(a) a home owner is a person who owns a manufactured home that is positioned on a site in a residential park under a site agreement;
(b) …
(c) a person who obtains an interest in a site agreement as the personal representative, or a beneficiary of the estate, of a deceased individual who immediately before the individual’s death was a person mentioned in paragraph (a)…
I accept Ms Jackson’s evidence that she was the sole beneficiary of her father’s estate. No copy of the will was in evidence, however, the oral evidence was not challenged by Mr Murray. Ms Jackson meets the definition of “home owner” on this basis.
There is also evidence that the manufactured home was transferred to Ms Jackson by her father at the time of the 3 May, 2006 meeting with Mr Murray when a certificate of ownership was completed by Mr Murray, certifying that Ms Jackson was the purchaser of the manufactured home on lot 173. Ms Jackson does not deny that she is the owner of the manufactured home.
On the basis that Ms Jackson had the home transferred to her in May, 2006 or that she inherited the home in 2009, I find that Ms Jackson is a home owner under section 8(a) or (c) of the Act. That finding is sufficient to make her a party to a site agreement dispute and to give this Tribunal jurisdiction over the matter before it, provided that I am able to find that Ms Jackson and the applicant were parties to a site agreement.
Was the late Mr Jackson’s site agreement assigned to Ms Jackson?
The Act is very clear at section 48 that assignment of the seller’s interest in a site agreement is not effective unless the park owner has consented to the assignment and that the park owner may give the consent only by signing both copies of the form of assignment.
The form of assignment is Form 8 which was not signed by the Park Owner.
On this basis I find that the site agreement was not assigned to Ms Jackson.
Is there an unwritten site agreement?
The Act contemplates that persons may be parties to an unwritten site agreement. As to whether there is an unwritten site agreement in place, the factors which accord with the elements of the definition of a site agreement set out in section 14 of the Act are:
(a) the conduct of the applicant is consistent with consent to the manufactured home remaining on the site after the death of Mr Jackson, in that no effort was made to seek orders for the removal of the home from the site;
(b) the conduct of the applicant is consistent with Ms Jackson having non-exclusive use of the park’s common areas and communal facilities, in that Ms Jackson remains a resident of the Park some 4 years after the death of her father. There is no evidence that she has been denied use of the common areas;
(c) Ms Jackson has paid at least 3 site rent payments together with $4,000.00 of the sum she agreed to pay in satisfaction of back rent pursuant to the consent order made in matter OCL170-10;
(d) Ms Jackson agreed to the consent order including the order that from 1 September, 2011 she would make all future payments due to the applicant in accordance with the site agreement.
I do not accept Ms Jackson’s submission that she agreed to the consent order under duress. She offered no evidence in support of the allegation and made no application to set the order aside.
This Tribunal cannot enforce its own orders. I do not intend to do so, however, the fact of the consent order is a matter I take into account as evidence of Ms Jackson’s intention to make site rent payments in accordance with the site agreement.
By implication, Ms Jackson can be taken to have adopted the terms of the site agreement, as to the amount of the site rent and obligation to pay service or utility charges, when she agreed to make all future payments due to the applicant in accordance with the site agreement.
I have referred to the application filed in matter OCL 170-10 and note that a full copy of the site agreement accompanied the application served on Ms Jackson. I am able to conclude that at least from the date of the application she was apprised of its terms so that she could meaningfully agree to make payments in accordance with the site agreement;
(e) Ms Jackson submitted at the hearing that she would pay charges for electricity and utilities.
On the basis of these facts I find that there exists between Ms Jackson and the applicant an unwritten site agreement which meets the definition of site agreement in section 14 of the Act. I note similar conclusions have been reached in other cases, where it has been said that given the beneficial objects and content of the Act the better view is that the parties have an unwritten agreement, albeit one which does not comply with a number of the obligations imposed by the Act.[1]
[1]Harvest Investments No 4 Pty Ltd t/a Nestle Inn Tourist Village v Lynch [2011] QCAT 94 at [27].
On the basis of these facts I find that the terms of the unwritten site agreement are the terms of the site agreement between the late Mr Jackson and the applicant, at least in relation to payments due to the applicant.
Orders sought by the applicant
By section 25(7) of the Act the lack of a signed, written agreement between the parties does not make it unenforceable. I find that an enforceable unwritten site agreement exists between the parties. I find that the parties are in dispute about their rights and obligations under that agreement and that accordingly this Tribunal is vested with jurisdiction to make such orders as it considers appropriate to resolve the dispute.
The applicant seeks payment of arrears of site rent, service charges and interest.
The applicant also seeks termination of the site agreement pursuant to section 38(1)(a) of the Act and pursuant to section 39 of the Act that Ms Jackson provide vacant possession.
The Tribunal’s power to make these orders falls under section 140 of the Act.
Recovery of arrears of site rent, service charges and interest.
The applicant relies upon delivery of a Notice to Remedy Breach, dated 28 May, 2012 which referred to “Numerous and repeated infractions of the attached Site Occupancy Agreement, notably clauses 2.1, 2.5, 3 & 4.3(a) &(b)”.
The applicant filed particulars of all relevant breaches pursuant to a direction dated 4 September, 2012. That document is exhibit 2 in the proceedings. Exhibit 4 was tendered by the applicant and is an updated schedule which amended the particulars to bring the claim up to date to 1 May, 2013. Those amounts are set out above. Exhibit 4 records a monthly site rent of $508.74 from 1 September, 2011 to 1 August, 2012 and an increased amount of $515.52 from 1 September, 2012. Exhibit 4 also sets out monthly service or utility charges for each month.
The applicant’s evidence is that the rent is increased in accordance with the Consumer Price Index as at 1 September each year and that mode of variation is set out in clause 2.6 of the Site Occupancy Agreement.
Ms Jackson did not in cross examination challenge the amount of the claim or its mode of calculation or suggest that she had not been given notice of the amount of rent and charges and any increases. She simply denied liability on the basis that she had not signed any site agreement.
On the basis of the unchallenged evidence of the applicant I find that the sum of $10,744.56 is owed by Ms Jackson for site rent for the period 1 September, 2011 to 1 May, 2013 and as at the date of the hearing was unpaid.
On the basis of the unchallenged evidence of the applicant I find that the sum of $1,059.83 is owed by Ms Jackson for service charges for electricity and water for the period 30 June, 2011 to 28 March, 2013 and as at the date of the hearing was unpaid.
The applicant also claims interest on the unpaid amounts in accordance with clause 2.8 of the Site Occupancy Agreement, which provides that if moneys payable remain unpaid after they become due, whether demand has been made or not, then the occupier shall immediately upon demand having been made by the owner pay interest at the rate of 18% per annum from the day the unpaid money was due until the day it is paid in full.
I consider delivery of the Form 6 Notice to Remedy Breach on 28 May, 2012 constitutes a sufficient demand. In any event the bringing of this application also constitutes a demand. Accordingly, I find that interest at the rate of 18% per annum is payable on the outstanding sums. Ms Jackson, did not in cross examination challenge the claim for interest and the mode of calculation. For these reasons, I find that interest on arrears of site rent is payable in the sum of $1,533.53 and interest on outstanding service charges is payable in the sum of $169.95.
The applicant has also sought payment of the outstanding amount of $1,000.00 pursuant to the consent order made 8 August, 2011 in matter OCL170-10 together with interest. I decline to make any order in this regard as this Tribunal does not have power to enforce its own orders. The applicant claims costs associated with this action as per clause 4.1 of the site agreement in an amount of $1,400.00. I have no evidence in relation to this claim, accordingly I decline to make any order in that regard.
In order to bring this site agreement dispute to a resolution I order that Ms Jackson pay the sum of $13,507.87 to the applicant.
Termination of the site agreement
I find that by failing to pay site rent and service charges from 1 September, 2011 to the date of the hearing, Ms Jackson has contravened the terms of the unwritten site agreement between the parties.
I accept the evidence of Mr Murray set out in exhibit 3, his statement of evidence, and note in particular photographs of rubbish piled up around the home and written complaints from neighbours who have observed rats at lot 173 over a long period of time. I find that there has been a contravention of the obligation in the Site Occupancy Agreement to keep the property free of vermin. I also note the obligation of home owners set out in section 16 (g) of the Act to maintain the manufactured home positioned on the site in a reasonable state of cleanliness and repair, and fit to live in.
On the basis of Mr Murray’s evidence I find that Ms Jackson has failed to remedy the contravention within 28 days, or at any time, after being given a Form 6 Notice, dated 30 May, 2012. Although Ms Jackson disputes receiving the Form 6 in time to remedy the alleged breaches within the 28 days nominated in the Notice, the important fact is that she did receive the Form 6 and she has at no time sought to remedy the breaches alleged.
A copy of the site agreement accompanied the notice. The notice clearly referred Ms Jackson to the clauses which it is alleged she has contravened. Ms Jackson asserts that the copy of the site agreement provided to her was missing every second page and that affected her ability to know what she was alleged to have contravened. I have previously found that Ms Jackson had a complete copy of the site agreement as a result of the proceedings in matter OCL170-10. It was well within her capacity to refer to that document or to seek another copy.
I find that upon receipt of the Form 6 notice Ms Jackson should reasonably have known what steps she had to take to remedy the alleged breaches, however she did nothing. I find that the notice is in the approved form and is effective for the purpose of section 38(1)(a) of the Act.
Accordingly, I find that grounds exist to terminate the unwritten site agreement pursuant to section 38(1)(a) of the Act. The decision to terminate a site agreement involves the exercise of a discretion.[2]
[2] Haraba Pty Ltd v Castles [2007] QCA 206.
I consider that it is fair in all the circumstances, that Ms Jackson be given a reasonable opportunity to clean and prepare the manufactured home for sale and to market the property so that she may enjoy the benefits of her property.
I note that Ms Jackson thought that process may take a period of 9 months. I consider that to be too long a period of time. I am prepared to allow a period of 6 months for Ms Jackson to either sell the manufactured home or remove it from the site.
I order that the unwritten site agreement be terminated on 21 February, 2014, unless the manufactured home has been earlier sold and assigned in accordance with the Act.
I order pursuant to section 39 of the Act that Ms Jackson give the applicant vacant possession of the site on or before 21 February, 2014, unless the manufactured home has been earlier sold and assigned in accordance with the Act.
Given the long period of time I have allowed before termination of the unwritten site agreement, I consider it appropriate to make the following further orders to ensure Ms Jackson understands her rights and responsibilities in relation to continued occupation of the site.
I order that Ms Jackson pay to the applicant a monthly site rent of $515.52 (or as subsequently varied in accordance with the site agreement) from 1 May, 2013 until the date of termination together with all service charges incurred by her from 28 March, 2013 up to the date of termination or earlier sale. I order that the applicant deliver a statement of outstanding site rent and service charges to Ms Jackson for the period from 1 May, 2013 to the date of this Decision which is payable by the applicant within 14 days of the date of delivery of the statement.
I also order that by 21 October, 2013, Ms Jackson dispose of rubbish in and around the manufactured home, so that it achieves a reasonable state of cleanliness and repair and that by 21 October, 2013 she engages a pest controller to treat the manufactured home and lot 173 for pests and vermin.
Orders
I order that:
(1)Ms Vicki Jackson pay to Hammond Villages Pty Ltd trading as Hammond Village Gold Coast arrears of site rent, service charges and interest in the sum of $13,507.87 by 21 October, 2013;
(2)The unwritten site agreement between Ms Vicki Jackson and Hammond Villages Pty Ltd trading as Hammond Village Gold Coast be terminated on 21 February, 2014, if the manufactured home at lot 173 is not earlier sold and assigned in accordance with the Manufactured Homes (Residential Parks) Act 2003.
(3)Ms Vicki Jackson give Hammond Villages Pty Ltd trading as Hammond Village Gold Coast vacant possession of lot 173 on or before 21 February, 2014, if the manufactured home is not earlier sold and assigned in accordance with the Manufactured Homes (Residential Parks) Act 2003.
(4)Ms Vicki Jackson pay to Hammond Villages Pty Ltd trading as Hammond Village Gold Coast a monthly site rent of $515.52 (or as subsequently varied in accordance with the site agreement dated 2 September, 2004) together with all service charges incurred by her from 1 May, 2013 to the date of termination of the site agreement or an earlier date of sale and assignment of the manufactured home;
(5)Hammond Villages Pty Ltd trading as Hammond Village Gold Coast deliver to Ms Vicki Jackson a statement of outstanding site rent and service charges for the period 1 May, 2013 to the date of this Order, which Ms Jackson must pay within 14 days from the date of delivery of the statement;
(6)By 21 October, 2013, Ms Vicki Jackson dispose of rubbish in and around the manufactured home at lot 173 so that it achieves a reasonable state of cleanliness and repair and by 21 October, 2013 Ms Vicki Jackson engage a pest controller to treat the manufactured home and lot 173 for pests and vermin.
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