Magarditch and Anor v ANZ Banking Group

[1999] HCATrans 91

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S150 of 1998

B e t w e e n -

GERIER AGOP MAGARDITCH and SONYA MAGARDITCH

Applicants

and

AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED

Respondent

Application for a stay

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 APRIL 1999, AT 2.47 PM

Copyright in the High Court of Australia

MR J. SOURIAN:   Your Honour, I am the son of my parents, the applicants.

HER HONOUR:   And you seek leave to appear on their behalf.

MR SOURIAN:   If I may, yes.

HER HONOUR:   Yes, thank you.

MR R.W. WHITE, SC:   May it please the Court, I appear with my learned friend, MS M. PAINTER, for the respondent.  (instructed by Norton Smith & Co)

HER HONOUR:   You have no objection to Mr Sourian representing his parents?

MR WHITE:   No.

HER HONOUR:   Thank you.  Yes, Mr Sourian.

MR SOURIAN:   Your Honour, if I may with the leave of the Court be able to sit down because I have a chronic back pain.

HER HONOUR:   Certainly.

MR SOURIAN:   Thank you.  Your Honour, there is an application before the Court, a summons before the Court seeking the Court to get involved and stop the Sheriff’s Office from taking possession of my parent’s place today.  Your Honour, this matter has a lengthy history which dates back to 1989.  The issues relating to other proceedings which are before the Federal Court and the Common Law Division of the Supreme Court are yet not been finalised and there is another matter which is before the Federal Court relating to allegations of wrong conduct, fraud, deceit against the Bank, the respondent to this matter, and liquidator, and that is before the court on the 24th of next month for hearing on an appeal from Justice Einfeld’s decision…..year.

Your Honour, the whole issue here – I have put two affidavits into the High Court.  One was just before the Court opened today.

HER HONOUR:   Yes, I have received that.

MR SOURIAN:   The other parties have received that and have knowledge of it.  The situation here is, your Honour, the matter - Justice Priestley and Justice Sheller in the court below, in December 1997, a matter came – I sought leave on behalf of my parents to be able to present to the court what our lawyers, including a Supreme Court judge who before sitting on the Bench was representing my parents, including that person by the name of John Hamilton – he was informed of a conduct at the original hearing of this matter where it originated.

HER HONOUR:   But, Mr Sourian, the only matter before me is whether you have – the only consideration that is relevant, really, to this case is whether you have an arguable case that the Court of Appeal was wrong.  The only matter before them was the decision of Mr Justice Santow.  So that is what you have to address, the error in Mr Justice Santow’s decision and in the Court of Appeal.

MR SOURIAN:   Yes, your Honour.  In as far as that one must, to look at Justice Santow’s judgment, one must look also back to Mr Justice Windeyer’s judgment.

HER HONOUR:   You have to find an error of law.

MR SOURIAN:   Your Honour, if the allegation of a fraud or a miscarriage of justice or denial of natural justice in conducting a hearing has been identified, and that has been identified and it has been reported to the court ‑ ‑ ‑

HER HONOUR:   But you did not appeal against Mr Justice Windeyer’s decision.

MR SOURIAN:   Your Honour, that may be so under the circumstances, but that also, if one was to look at, would be an excuse where the persons that I have made these allegations against, to hide behind as a wall, to be able to not address the issues that I am raising.  The most important part about this matter is that if the judgment of Justice Windeyer was not appealed at the relevant time, for circumstances which an average person could understand, and that is that there were no lawyers involved in the matter, no legally‑minded person was involved in the matter on behalf of my parents at that time, and even then, I had the ability to be able to communicate, although I do not have the legal experience, but I can communicate in a way where I can cross‑examine and be able to at least put up a fair fight.  But for my parents to have been denied that right to be able to have me represent them, which the Court of Appeal and the High Court today has granted me that right, should be an issue which goes straight to the heart of this whole proceedings.

HER HONOUR:   But you did not appeal that decision.

MR SOURIAN:   Your Honour, it is a matter if I did not appeal; it is a matter of the lawyers ‑ ‑ ‑

HER HONOUR:   Or your parents did not appeal.

MR SOURIAN:   The lawyers itself that were instructed to appeal that decision, if they themselves would not present that, does that not prejudice the person’s right to be able to bring it before the court when that person has been granted leave.

HER HONOUR:   Mr Sourian, I have explained to you, you have to point to error of law on the part of Mr Justice Santow and error of law on the part of the Court of Appeal, or at least arguable error of law of a kind that would attract the grant of special leave before there is any possibility of a stay being granted.

MR SOURIAN:   Yes, your Honour.  In the Court of Appeal’s judgment, Justice Priestley and Justice Sheller did state that on the evidence before the court the liquidator nor the Bank did not do any injustice to myself, my parents and/or the company.  That is the conclusion where the court came to at the end. 

HER HONOUR:   That was not with respect to Mr Justice Santow’s decision.

MR SOURIAN:   No.  Your Honour, in as far as Justice Santow’s decision, the court was informed of that, your Honour.  Now, if the actual case against my parents is that they owe the Bank an amount of money and there are proceedings in the court at present, in the Federal Court, there was a matter that was in the Supreme Court that was referred to the Federal Court because the Supreme Court – the allegations are that are in that Court of Appeal as well, it was put before the court ‑ ‑ ‑

HER HONOUR:   Yes, now Mr Justice Einfeld ruled against your parents, did he not?

MR SOURIAN:   Your Honour, the hearing of the matter has not been concluded.  Justice Einfeld embarked on a hearing pursuant to a motion which I filed seeking that the court inquire into the liquidator’s conduct and that I be granted leave to represent the company in that matter.  That was the preliminary hearing regarding the matter.  Justice Einfeld found at the end of that day that I will not be able to represent the company, one; and two, that this matter has been ventilated somehow before it and basically comes down to that there was no injustice done by – there was no wrongs done by the Bank and - the liquidator that would warrant the court to make an inquiry.

Your Honour, what contradicts that judgment is Justice Einfeld’s  own words at the hearing because Justice Einfeld, he himself ‑ ‑ ‑

HER HONOUR:   Again, I am just trying to find out what it is that you say is in the Federal Court.  You had the proceedings before Justice Einfeld and he found against you. 

MR SOURIAN:   What he found, your Honour, what I just stated, but what he did make comments was ‑ ‑ ‑

HER HONOUR:   Do not worry about what Justice Einfeld said.  He found against you and there is an appeal to the Full Court.

MR SOURIAN:   Yes, which is to be heard – it is set down for hearing on ‑ ‑ ‑

HER HONOUR:   Now, is there any other proceeding in the Federal Court?

MR SOURIAN:   Yes, the proceedings itself, the main proceedings itself is in the Federal Court.  The other one is in the Full Court.

HER HONOUR:   What do you call the main proceedings?

MR SOURIAN:   The main proceedings is the actual statement of claim which has been filed in the Federal Court and there is an appeal from a decision ‑ ‑ ‑

HER HONOUR:   So the statement of claim is not on for hearing on 24 April?

MR SOURIAN:   Your Honour, it is the hearing of the actual appeal of Justice Einfeld’s decision and, your Honour, in that appeal, if the court was to grant leave for inquiry to be conducted into the liquidator’s conduct, then your Honour, the whole situation of the liquidator’s wrongful doing can be exposed.  Now, Justice Einfeld ‑ ‑ ‑

HER HONOUR:   We are not in the least bit concerned here with the liquidator today, we are concerned only with whether there is an arguable error of law and if so, whether there are circumstances which would justify a stay.

MR SOURIAN:   Yes, your Honour, but you say that the liquidator is not an issue here, but the issue here is directly that the Bank is claiming under a guarantee from my parents Magic’s indebtedness to it.  If the allegation that is before the Federal Court is substantiated, the point then becomes that the damage done to the assets of the company by the liquidator would have to be taken into consideration before the actual hearing under a guarantee that my parents would have to be held liable for in the meantime.  That should be after the court has found that if there has been wrongful conduct by this liquidator that would justify a hearing into his matter and to the Bank’s matter, that would then put a whole different light on the path this whole procedure has come to date and that would be this, that if there were assets of the company which exceed and can be shown to exceed prior to the liquidation of the company, and being brought to the attention of the liquidator who had responsibility and carriage of the administration of the company at that time, then his conduct of what he had done through the procedure that he took would be evidence before the court that would justify the liquidator’s conduct has constituted ‑ ‑ ‑

HER HONOUR:   That does not necessarily follow and it does not deal with the issue today.  Now, would you please address yourself to the question whether there is an error or law in the judgment of Mr Justice Santow and in the judgment of the Court of Appeal.

MR SOURIAN:   Your Honour, again, this Court, if I may say without disrespecting this Court, has focussed on an issue which really sidesteps the main issue of ‑ ‑ ‑

HER HONOUR:   I can see why you say that, but you must understand my powers.  All you have before this Court is an application for special leave from the judgment of the Court of Appeal and the only order it made was in respect of the judgment of Mr Justice Santow.  Now, I can only grant you a stay of proceedings if it appears that you have an arguable case that the Court of Appeal was wrong in relation to the judgment of Mr Justice Santow.  Now, if you cannot show me that, I have no power to help you.

MR SOURIAN:   Your Honour, it really defies then the issue relating to the conduct of Justice Windeyer at the hearing.  It says to the court that ‑ ‑ ‑

HER HONOUR:   That may be, but that was not appealed.

MR SOURIAN:   But that would not be justice, your Honour, with respect.

HER HONOUR:   I am not here to do justice in the abstract; I am here to do justice according to the law and that very much means I can only operate within the limit of my powers and they are:  I can grant you a stay only if you can convince me that arguably you would be granted special leave and you would only be granted special leave if you could point to an error of law of the kind that would attract the grant of special leave.

MR SOURIAN:   Your Honour, again you are asking - your Honour, if I may direct you to the affidavit I filed today in Court and if I may also ask you to look at annexure D of that.

MR WHITE:   To which I object.

HER HONOUR:   There is an objection taken to that.

MR SOURIAN:   Your Honour, I press that point, if your Honour would listen to the issue.  It is an appeal from Justice Handley’s decision, your Honour, that the summons was issued, that Justice Handley erred in not accepting that document into evidence for consideration.

HER HONOUR:   For consideration on what, on whether there was an error of law ‑ ‑ ‑

MR SOURIAN:   Or should the stay be granted under the circumstances ‑ ‑ ‑

HER HONOUR:   Is that document marked “Without Prejudice”?

MR WHITE:   Yes, your Honour.

HER HONOUR:   The document is marked “Without Prejudice”.  That is the end of the matter.

MR SOURIAN:   But, your Honour, if I may again highlight the relevance of that document.  The document marked “Without Prejudice”, that may be the case, but if the allegation and the evidence points to that there has been a fraud committed, the “Without Prejudice” document itself then has to be the ‑ ‑ ‑

HER HONOUR:   You just cannot make allegations of fraud in the air.

MR SOURIAN:   No, your Honour.  What we have done is present this to the court below and below that for the last few years and  ‑ ‑ ‑

HER HONOUR:   I can see no basis on which it could be said there was any error in the Court of Appeal not receiving that document.  Did you tender it on the stay or on the ‑ ‑ ‑

MR SOURIAN:   Yes, on the stay.  No, I am sorry, on the restraining order on the Sheriffs – and to Justice ‑ ‑ ‑

HER HONOUR:   All right.  We are not concerned with the order restraining the Sheriff because you won on that.

MR SOURIAN:   Yes, but, your Honour, I ask for an extension of that stay.

HER HONOUR:   Now you are asking me for a stay.

MR SOURIAN:   An extension of that stay.

HER HONOUR:   No, I am sorry, I do not extend the stays of the Supreme Court.  You are asking me for a fresh stay which I have explained to you requires you to establish an arguable case of error on the part of Mr Justice Santow and on the part of the Court of Appeal.  Now, you should address yourself to those issues. 

MR SOURIAN:   Your Honour, do you wish me to go through the whole procedure ‑ ‑ ‑

HER HONOUR:   I wish you to tell me what is the error of law that you say would attract the grant of special leave.

MR SOURIAN:   Your Honour, by the very reason that the court - your Honour, paragraph 23 of my affidavit sworn on the 12th, filed on 13 April, states that:

“…..The written submissions include criticisms and intemperate attacks upon the judicial officers concerned unsupported by anything other than the writers assertion..”

Your Honour, these are comments made by the judge – by Justice Priestly and Justice Sheller.  If I may direct you to – it is under the heading “THE MATERIAL PUT BEFORE THE COURT BY MR SOURIAN”.

HER HONOUR:   Yes, so what of that?

MR SOURIAN:   Your Honour, the material, if one was to look at the material that I put before the court in the submissions, which is the annexure ‑ ‑ ‑

HER HONOUR:   How does that bear upon the decision?

MR SOURIAN:   Your Honour, the decision is this.  The Court of Appeal has been informed – the highest court in the State has been informed that there has been – there is evidence before the court that there has been a miscarriage of justice at the hearing before Justice Windeyer and that evidence is contained in the transcript of evidence that was before the court.  The allegations that were made against Justice Windeyer has been spelt out in the affidavit.  If you wish, your Honour, I will read that to the Court to have ‑ ‑ ‑

HER HONOUR:   We are not concerned with Mr Justice Windeyer’s order.

MR SOURIAN:   Your Honour, this is the Court of Appeal’s order, finding, that there was nothing more – sorry, the words used ‑ ‑ ‑

HER HONOUR:   Mr Sourian, I will allow you another 15 minutes to deal with the two issues that I have asked you to address before, and that is all I will allow you.  You have to deal with the issues.  You have 15 minutes.

MR SOURIAN:   Your Honour, again I press the point that if the Court has not directed or shown a path that it sees that there is a grave grievance against the conduct of this Bank and the conduct of judicial officers in the Supreme Court and the liquidator – if the highest Court in the land cannot hear and see the evidence that is before it or the documents that are before it or the words that are before it, that there has been an injustice done, and that injustice has been covered up, has not been addressed, this is issues where it is a shame for it to go as far as to the highest Court in the land for it to be addressed or to be asked for it to be addressed. 

It is a further shame upon the people to be heard, to hear that the issues relating to a fraud that happened at the very hearing of the matter, or deceit happened at the very hearing of the matter, that is evidence before the court, the evidence is before the court.  It is the transcript of evidence of Justice Windeyer’s hearing and the allegations are clear and the evidence is clear in the transcript.  If the Court of Appeal has said we have looked very carefully and have found nothing wrong has been done, it defies the questions that were asked, “Was the hearing conducted before Justice Windeyer one that would be acceptable in a democratic society?”  And if that hearing before Justice Windeyer would not be acceptable as per the points made in my affidavit that was filed on 13 April, then, your Honour, it comes down to this:  is the court hearing it that loud it cannot answer it? 

The allegation is simple.  Justice Windeyer has assisted, wrongly, the Bank to manipulate, to pressure my parents at the hearing, denying them a natural justice to be able to be heard, although the evidence is clearly there and following that, the court further got involved and the judges – we had retained John Hamilton for a reason and that reason was to make sure that the allegations that had been made in the past to the court comes out in the open.  He refused to do it and, in fact, sent it down on a path should this debt to the Bank be addressed on a mortgage issue rather than the issue relating to the conduct of what happened at the hearing. 

If a person had a criminal trial and that criminal trial there was wrongs in it, and there was a miscarriage of justice by the judge’s conduct, the court will order a rehearing of the matter.  In this matter, the allegations have been there that serious that Justice Young referred the matter from its court, from the State court to the Federal Court, to have an inquiry made into the conduct of this liquidator.  And during the course of that preliminary inquiry Justice Einfeld said, “There are questions that the court does not have before it and those questions are” – I mean, amongst other things, if I can quote, “During the course of the hearing…..on page 329 and 330 of the transcripts dated 11 March 1998”, on page 4 of my affidavit it says:

“I mean amongst other thing the insurance claim might have been settled and one wonders in the absence of any particular explanation why the proceedings were not commenced at least in order to save the time running out.  I mean I can think of one good reason, one reason whether good or otherwise and that is that the liquidator was finding it difficult to handle Mr Sourian and it is just an assumption and of course the answer that Mr Sourian gives to the running out of money question is the liquidator has been off fighting the ANZ Bank in the Court spending a lot of money on legal and other costs in the proceedings when in fact the insurance claim and the Thornleigh matter are of crucial importance because that would render the ANZ bank irrelevant because they would be able to get the money to pay out the debt.  So I raise these matters as questions that arise on the arguable case point.”

Further, his Honour says is to the liquidator’s counsel ‑ ‑ ‑

HER HONOUR:   You are not addressing the point.

MR SOURIAN:   Your Honour, I am making sure that the Court, with respect, your Honour, is clear that there is a case which is a month away.

HER HONOUR:   No, the appeal is a month away.

MR SOURIAN:   A month away.

HER HONOUR:   The appeal is a month away.

MR SOURIAN:   The appeal is a month away, your Honour.

HER HONOUR:   Very well.  But I am concerned not with that, I am concerned with whether you have an arguable case for the grant of special leave to appeal from the decision of the Court of Appeal.  That is all.

MR SOURIAN:   Your Honour, this is issues which are very relevant.

HER HONOUR:   All right.  You have 10 minutes more, I think.

MR SOURIAN:   Yes, your Honour, it would not take me, I do not think, much longer than that to be able to read the rest.  Justice Einfeld further said, on page 323 of the transcript on 11 March:

“…..What I am saying is that as the evidence presently stands, there is no evidence that Powell J knew that there was any dispute about the value at all and there had been any offer made by anybody….”

Your Honour, you have to look at the context of what that is about.  The liquidator had offers up to $350,000 for a property from a particular person, which happened to be the neighbour.  He went and sold it to him for $152,000.  These are issues that if that liquidator had not done that, there would have been assets in the company which would have paid the Bank out the undisputed – the debt that was claimed and they would have not chased my parents under the guarantee.  That is on just that Thornleigh property. 

And there is another one where the insurance claim alone, your Honour, would exceed $1 million as of that date of liquidation.  That has never been addressed by the court to date.  It is as if it is flying out of the air, it is in the air, it has never been addressed.  That is the issues that need to be addressed to identify the standing of the company.  Because once the standing of the company is established, then they will see if there is any debt outstanding and to whom.  If the outstanding assets of the company have not been established, and there are court proceedings against the liquidator for the wrongful conduct in destroying the assets of the company, and the Bank being involved with them, your Honour, then really it comes down to this:  is the Bank, does the Bank control the courts in order to not expose itself out in getting false judgments and when the courts have made it clear about that, that the court ‑ ‑ ‑

HER HONOUR:   I hear you.

MR MAGARDITCH:   Your Honour, it is only the loan was $430,000.  The Bank and the liquidator took $2 million asset and the loan only $430,000.  Now they want my house on top of that.  What is justice?  I am not saying – if I owe them I pay them, I go out from my house, but believe me, they took $2 million asset and still they chasing me – they told me, “If you don’t leave us alone we going to take your house.”  That is wrong.  This completely wrong.  I am not lying, your Honour.  I am asking you ‑ ‑ ‑

HER HONOUR:   I must ask you both, now, would you please confine yourself in the time that is left to the issue.

MR SOURIAN:   Your Honour, the very issue is clear.  The court has turned around – turned its eye from our cause to protect the wrongful conduct of the Bank, the liquidator and justices in the system.  Rather than address that, and address that directly, the court has been putting up barriers and saying simply that we are not going to hear about all these other serious allegations.  We will just hide it under the word assumption and not look at it in too deeper, and this has been going on for 10 years.  Does not the court have a better thing to do than hear a person come for 10 years in this court, rather than just address the direct issues that are there.  The pleadings are correct.  In the Federal Court it has been addressed accordingly.  Why then, if the allegations that the Bank and the liquidator misled Justice Einfeld to obtain a judgment by fraud – obtain a judgment on a false basis to defraud the company, how then does it not follow that the Bank can come and claim the assets of my parents under a guarantee of the Bank’s debts?  Why is the Court denying that it should grant, at least until the end of the hearing before the Full Court, to ascertain if the allegations against the liquidator and the Bank are substantiated, that the court can overrule Justice Einfeld’s decision.

This matter has been going on for that long.  Your Honour, where does it end?  Where does the court address that issue?  It seems to have – there is no mechanism in the system that seems to be able to have direct control of serious allegations involving banks, involving Supreme Court judges in our matter – there is no mechanism for that complaint to be made and for it to be publicly heard of that complaint.  Nothing even – the evidence is before the court.  The court will shut its eyes up because our evidence is so overwhelming that it will show that natural justice has not been done at the hearing of the matter.  Now, how can it continue on from there and the Court – and the highest Court to say, well, we are going to only deal with the last occasion what came before us, and not hear the further where originally the seed started from.  How can that be?  And the Court is using, as an excuse thus far, that you did not appeal Justice Windeyer’s decision, so that makes it correct.  That makes it where it stands, even though there are serious allegations of how the justice system or that particular court conducted itself within the justice system.

This is the critical issue that the Court of Appeal failed to hear, failed to address, and further it is a critical issue that this court must turn around and take out from the 51 pages of the Court of Appeal’s judgment in order – two lines relating to the allegations of misconduct at the hearing, two lines the court put about that, and the evidence is before – the allegations against the judge’s conduct is that it happened in the court.  That is simple as that.  If the court is going as far as addressing the issue that we have looked and there is just assumption, there was nothing untoward, then, your Honour, the court then must say – this Court must say that if that court has found that there is none, then we should look ‑ ‑ ‑

HER HONOUR:   Mr Sourian, you have used your time up, I am afraid.

MR SOURIAN:   I beg your pardon.

HER HONOUR:   You have used your time up.

MR SOURIAN:   Your Honour, all I am here doing is trying to present to the Court issues that have been hovering around for quite some time.

HER HONOUR:   Yes, I am sure they have, but I have attempted to ‑ ‑ ‑

MR SOURIAN:   Your Honour, my elderly parents, both of them have had heart trouble.  Your Honour, my dad has had two operations in the last two years.

HER HONOUR:   Mr Sourian, this is not a question of my being able to wave some magic wand.  I am constrained by my powers.  Now, I ask Mr White, have you anything to say in response to the application?

MR WHITE:   We submit that there has been no error demonstrated, or even sought to be demonstrated, on the Court of Appeal’s reasons.  Accordingly, there are no prospects of special leave being granted.  We submit that no stay could be granted.

HER HONOUR:   Yes, thank you. Mr Sourian, do you have anything to say in reply to that?  But you must confine yourself to reply to it.

MR SOURIAN:   Your Honour, you are again - again I say this Court has – on a track where it will not want to hear the seriousness of the allegation of what happened at the hearing, nor what would even make inquiry or order an inquiry to see if that is so.  I will put my liberty, your Honour, in the

Court’s hands if I am wrong, but I would like the Court to deliver justice if I am right.

HER HONOUR:   Thank you, Mr Sourian.  I understand your position.  However, my powers to grant a stay in this matter are conditioned on that being necessary to preserve the subject matter of the litigation pending the grant of special leave and it is well established that I cannot grant a stay unless I am satisfied that there is an arguable case for the grant of special leave.  That depends on there being demonstrated some error of law in the decision of the Full Court in its assessment of the decision of Mr Justice  Santow.  I am not satisfied that any such error appears and I must refuse the application.

MR WHITE:   I ask for costs, if the Court pleases.

HER HONOUR:   What do you say as to the costs?

MR SOURIAN:   Your Honour, is the Court saying that it will allow the Sheriff’s Office to move in ‑ ‑ ‑

HER HONOUR:   I am saying I have refused your application for a stay.

MR SOURIAN:   As a result, your Honour, that is the result, that the Sheriff’s Office ‑ ‑ ‑

HER HONOUR:   I think you can work that out, Mr Sourian.

MR SOURIAN:   That then would be ‑ ‑ ‑

HER HONOUR:   Mr Sourian, do you wish to say anything about costs?

MR SOURIAN:   Your Honour, if this Court can double it, I would still be happy.

HER HONOUR:   I do not know what that means.  Is there any necessity to press for costs, Mr White?

MR WHITE:   Your Honour, we have been brought here on an application where the Bank is represented by senior counsel, there being a very serious ‑ ‑ ‑

HER HONOUR:   I would not have thought that was necessary.

MR WHITE:   Except for this, your Honour, there are very serious allegations which have been made in the affidavit in support of the application concerning the conduct of the Bank and the probity of the judges of the Supreme Court which, of course, have been raised in the course of address.  In my submission, the application has failed.  It was supported by material which was scandalous in the proper sense, as also being irrelevant, and that costs ought to follow the event.

HER HONOUR:   Very well.  The application is dismissed with costs.  Court will now adjourn.

AT 3.22 PM THE MATTER WAS CONCLUDED