Norfina Limited v Fish
[2024] WASC 471
•12 DECEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: NORFINA LIMITED -v- FISH [2024] WASC 471
CORAM: LUNDBERG J
HEARD: 3 DECEMBER 2024
DELIVERED : 12 DECEMBER 2024
FILE NO/S: CIV 2156 of 2022
BETWEEN: NORFINA LIMITED (FORMERLY SUNCORP-METWAY LTD)
Plaintiff
AND
STEVAN GORDON FISH (DECEASED)
Defendant
Catchwords:
Mortgage action - Action for possession of mortgaged property - Effect on the action of the death of the defendant borrower - No legal personal representative appointed in relation to defendant borrower
Financial services - Where complaint made to Australian Financial Complaints Authority by partner of deceased defendant - Whether hearing can proceed - Plaintiff produced written consent of the Authority - Appropriate for hearing to proceed
Practice and procedure - Application by plaintiff lender for leave to proceed in the absence of any legal personal representative pursuant to O18 r 15(1) of the Rules of the Supreme Court 1971 (WA) - Partner of the defendant borrower produced copy of last will and testament at hearing - No application for probate or for grant of letters of administration filed - Whether can be said the defendant has no personal representative within the meaning of the rule - Whether rule applies to deceased who is a party to the proceeding - Whether rule applies in relation to foreclosure actions - Whether leave should be given - Whether further notice to potential beneficiaries of the deceased's estate should be given - Turns on own facts
Practice and procedure - Application by plaintiff lender for summary judgment pursuant to O 14 r 1(1) of the Rules of the Supreme Court 1971 (WA) - Whether summary judgment should be granted - Turns on own facts
Legislation:
Administration Act 1903 (WA), s 8
Corporations Act 2001 (Cth), pt 7.10A
Evidence Act 1906 (WA), s 79C(2a)
Law Reform (Miscellaneous Provisions) Act 1943 (WA), s 4(1)
National Consumer Credit Protection Act 2009 (Cth), sch 1
Public Trustee Act 1941 (WA), s 9
Rules of the Supreme Court 1971 (WA), O 14 r 1, O 18 r 15 and O 37 r 6
Treasury Laws Amendment (Putting Consumers First - Establishment of the Australian Financial Complaints Authority) Act 2018 (Cth)
Result:
Plaintiff's application for leave to proceed dated 3 October 2024 is granted
Plaintiff's application for summary judgment dated 1 May 2023 is granted, together with an extension of time and waiver of the conferral requirement
Defendant's application for dismissal dated 11 April 2023 is dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | S R Ringrose |
| Defendant | : | Ms Ainslie Irene Kounis appeared with leave, with the assistance of a McKenzie friend |
Solicitors:
| Plaintiff | : | Mills Oakley |
| Defendant | : | In Person |
Case(s) referred to in decision(s):
Aylward v Lewis [1891] 2 Ch 81
Bassett v Atherley [2011] WASC 117
Crossley v City of Glasgow Life Assurance Company (1876) 4 Ch D 421
Curtius v Caledonian Fire and Life Insurance Company (1881) 14 Ch D 534
Fancourt v Mercantile Credits Limited [1983] HCA 25; (1983) 154 CLR 87
Iron Horse Machines Pty Ltd v Olmate Holdings Pty Ltd [2024] WASC 383
Kalejs v Minister for Justice and Customs [2001] FCA 1769; (2001) 111 FCR 442
Kelly v Fiander [2023] WASC 187
Kenney v Commonwealth Bank of Australia [2016] WASCA 44
King as Bankruptcy Trustee of Jose Fernandas De Silva v De Silva [2024] WASC 367
McKenzie v McKenzie [1970] 3 All ER 1034
MetLife Insurance Limited v Australian Financial Complaints Authority Limited [2022] FCAFC 173
Paula Susan Chappell as Executor of Estate of Robert Hastings Hitchcock v Goldspan Investments Pty Ltd [2021] WASCA 205; (2021) 58 WAR 503
Porters v Cessnock City Council [2005] NSWSC 1275
Reeves v Reeves [2024] NSWSC 386
Sandgate Corporation Pty Ltd (In Liq) v Ionnou Nominees Pty Ltd [2000] WASC 91
Steinecke v Wayne [2011] NSWSC 428
Taylor v Giampaolo [2004] WASC 109
Table of Contents
A. Introduction
B. The plaintiff's action
C. Relevant materials
D. Background matters
The pseudo-law approach adopted by the defendant and by Ms Kounis
The death of the defendant
Ms Kounis produces a copy of the last will and testament
Ms Kounis' complaint to the Australian Financial Complaints Authority
E. Plaintiff's application for leave to proceed
Evidence
Relevant principles
Whether the deceased has no personal representative?
Whether O 18 r 15(1) RSC operates when the deceased is a party?
What is the position with respect to orders for foreclosure?
Disposition - whether further notice should be given?
Disposition - whether leave to proceed should be given?
F. Plaintiff's application for summary judgment
Evidence
Relevant principles
Disposition
G. Defendant's application for dismissal
H. Conclusion and orders
LUNDBERG J:
A. Introduction
These reasons concern the interlocutory applications which were heard by the Court on 3 December 2024. The three applications listed for hearing were:
(a)the plaintiff's application for leave to proceed in the absence of a personal representative of the defendant, brought following the death of the defendant in September 2023 and the subsequent hiatus in the proceedings, pursuant to O 18 r 15(1) of the Rules of the Supreme Court 1971 (WA) (RSC);[1]
(b)the plaintiff's application for summary judgment of the action, brought pursuant to O 14 r 1(1) RSC; [2] and
(c)the defendant's competing application for dismissal of the proceeding.[3]
[1] Plaintiff's chamber summons for leave to proceed pursuant to O 18 r 15(1) RSC dated 3 October 2024.
[2] Plaintiff's chambers summons for summary judgment pursuant to O 14 r 1(1) RSC dated 1 May 2023.
[3] Defendant's summons for dismissal of the action dated 11 April 2023.
The latter two applications had been held in abeyance for some time, following the death of the defendant. Ms Ainslie Irene Kounis, the partner of the defendant, appeared at the hearing on 3 December 2024. After an interchange with Ms Kounis, it appeared to the Court that Ms Kounis was seeking an adjournment of the hearing of the applications. That adjournment request was refused for the oral reasons given at the hearing. Ms Kounis was then allowed an opportunity to make submissions in relation to the applications, although the Court recognised Ms Kounis had not obtained either a grant of probate or letters of administration in respect of the defendant's estate.
It should be observed that Ms Kounis was assisted in Court during the hearing by a person at the solicitor's table who was not a legal practitioner, but whom I took to be acting as a McKenzie friend.[4] It was in the interests of justice to permit this, and no objection was taken by the plaintiff in this regard.
[4] McKenzie v McKenzie [1970] 3 All ER 1034; see ts 42 - 43.
For the following reasons, the Court will grant the plaintiff leave to proceed in the absence of a personal representative, and order that summary judgment be entered in favour of the plaintiff. It follows that the defendant's pending application for dismissal of the action should be dismissed.
B. The plaintiff's action
The plaintiff's action, which was commenced on 4 November 2022, is brought in contract, for the alleged breach by the defendant of a loan agreement and to enforce the terms of a related mortgage. The plaintiff, which is a banking and insurance company, was formerly known as Suncorp-Metway Ltd. It has recently changed its corporate name.
The defendant filed an unconditional appearance to the action on 6 December 2022.
The plaintiff lender alleges that an agreement was entered into with the defendant borrower on 2 May 2014 by which the plaintiff advanced the sum of $416,330.20 (Loan Agreement). That sum was to be repaid with interest on the terms and conditions set out in the Loan Agreement.[5]
[5] Writ of summons dated 4 November 2022 (Writ) [3] - [4].
The advance was secured by a first registered mortgage over two properties, which were effected by instruments of mortgage both dated 2 May 2014. One of those properties is situated in Queensland. The other property is situated at 77 Wilfred Road, Thornlie in Western Australia (Thornlie Property). I will refer to the mortgage over the Thornlie Property as the Thornlie Mortgage.[6] It is apparent that the Thornlie Property was the residential address of the defendant prior to his death. That property was not, and is not, the residential address of Ms Kounis and she has not habitually resided at that property.[7]
[6] Writ [5] - [8].
[7] ts 21 - 22.
The plaintiff further pleads that the defendant sold the property in Queensland in September 2020 and paid the sum of $237,442.31 to the plaintiff in reduction of the loan. As of 31 October 2022, the amount outstanding under the Loan Agreement was $216,810.42.[8]
[8] Writ [16].
The plaintiff pleads that the defendant defaulted in payment of the loan payments in breach of the Loan Agreement and the Thornlie Mortgage. Following the default, the plaintiff gave notice to the defendant, on 29 March 2021, under s 106 of the Transfer of Land Act 1893 (WA) (TLA) and s 88 and s 93 of the National Credit Code,[9] demanding payment of all arrears under the Loan Agreement and the Thornlie Mortgage.[10]
[9] See sch 1 to the National Consumer Credit Protection Act 2009 (Cth). Section 88 addresses the requirements to be met before a credit provider can enforce a credit contract or mortgage against a defaulting debtor or mortgagor. Section 93 deals with the requirements to be met before a credit provider can enforce an acceleration clause.
[10] Writ [11] - [13].
The plaintiff seeks orders for immediate possession of the Thornlie Property and seeks judgment for the amount alleged to be outstanding under the Loan Agreement and the Thornlie Mortgage.[11]
[11] Writ [16] - [20].
The plaintiff's action is a 'mortgage action' as defined in O 4AA r 1 RSC. As the writ seeks an order for possession, it was necessary for the plaintiff to have attached a Form 4 to the front of the writ when the writ was served: see O 4AA r 3(2) RSC. I am satisfied that this was done.[12]
[12] See the affidavit of Jeff Leo Hillman sworn 1 December 2022 [6] - [7] (Hillman Affidavit).
C. Relevant materials
A number of affidavits were filed by the parties in respect of the duelling applications which had been filed in April and May 2023.
For the plaintiff, the following affidavits were filed: the affidavit of Sarah Lina Deen sworn 1 May 2023 (Deen Affidavit), the affidavit of Michael George Leedham sworn 4 May 2023 (Leedham Affidavit), the Hillman Affidavit, and the affidavit of Lucy Elizabeth Pye affirmed 29 May 2023 (Pye Affidavit).
For the defendant, the following affidavits were filed: the affidavits of the defendant sworn 15 May 2023, 29 May 2023, and 12 June 2023, and the affidavit of Ms Kounis sworn 15 May 2023.
Several sets of submissions were also filed by the parties, namely the defendant's submissions opposing summary judgment dated 26 June 2023, the defendant's submissions in relation to the application for dismissal dated 26 June 2023, and the plaintiff's submissions in support of the summary judgment application and in response to the dismissal application dated 29 June 2023.
In respect of the application for leave to proceed, the plaintiff relies on the affidavit of Skye Leisbeth Dalton sworn on 26 September 2024 (Dalton Affidavit) and the affidavit of service of Ian Brent-White sworn on 21 November 2024 (Brent-White Affidavit). The plaintiff has also filed a concise outline of submissions dated 26 September 2024.
No affidavit was formally filed on behalf of the defendant's estate in respect of the plaintiff's application for leave to proceed. However, the Court received a document styled as 'Living Testimony in a Form of an Affidavit and Declaration of Truth' which was prepared and sworn by Ms Kounis on 20 November 2024.
D. Background matters
Before I address the substance of the applications, there are some important background and contextual matters to outline.
The pseudo-law approach adopted by the defendant and by Ms Kounis
Given the form and content of the affidavits filed by Mr Fish and the affidavits relied upon by Ms Kounis, it is convenient that I make some observations about the approach they have adopted in these proceedings.
It is apparent from the affidavits sworn by the defendant and by Ms Kounis that the defendant and his partner share a similar view as to the applicability to them of the laws of this country, and the applicability of those laws to the financial and property arrangements between Mr Fish and the plaintiff lender.
In broad terms, the material they have filed reflects a nonsensical view of the essential framework of our legal system, sometimes conveniently referred to as the 'sovereign citizen' movement.
Much of the affidavit material and the accompanying submissions are, objectively, nonsense. The arguments expressed by the defendant and Ms Kounis are similar to those which were reviewed by Vandongen J, as his Honour then was, in Kelly v Fiander.[13] As his Honour there explained, such theories have been repeatedly rejected by Australian courts. Regrettably, by responding to legal claims using this pseudo-law approach, the party in question tends to obscure rather than elucidate their position.
[13] Kelly v Fiander [2023] WASC 187 [11] - [13] (Vandongen J).
By way of example of the material in the affidavits, I note the following:
(a)the defendant styled himself as 'Stevan Gordon of the family Fish, a living man, loyal subject of the crown, (Charles the Third, by the Grace of God of the United Kingdom of Great Britain and Northern Ireland and of His Realms and Territories King, Head of the Commonwealth, Defender of the Faith)';[14]
(b)the defendant prefaced his affidavits with the phrase 'without prejudice, reserving all of my rights in common law and do not enter into any contract or accept any services or benefits on offer that contradict or prejudice my common law rights';[15] and
(c)the jurat employed by the defendant in his affidavits states that the deponent is 'Stevan Gordon of the family Fish, the living man for and on behalf of the all caps Defendant STEVAN GORDON FISH'.[16]
[14] Affidavit of the defendant sworn 12 June 2023. The same phrasing is used by Ms Kounis in her affidavit sworn 15 May 2023.
[15] Affidavit of the defendant sworn 12 June 2023. The same phrasing is used by Ms Kounis in her affidavit sworn 15 May 2023.
[16] Affidavit of the defendant sworn 12 June 2023. The same phrasing is used by Ms Kounis in her affidavit sworn 15 May 2023.
In her most recent affidavit dated 20 November 2024, which consists of 42 pages of closely typed material, Ms Kounis asserts that the plaintiff, the plaintiff's solicitors and, quite remarkably, this Court are, in truth, liable for the debts of the defendant. Indeed, it appears to be suggested, although it is unclear, that this liability may now be owed to Ms Kounis.
Having reviewed this material, it is unnecessary to recite the extensive pseudo-legal journey that Ms Kounis invites the Court to follow, commencing with the Laws of God, then to the Magna Carta of 1215, the first five books of the King James Bible of 1611, various English statutes from the 17th and 18th centuries, isolated quotes from Blackstone's Commentaries, a review of the constitutionality of income tax laws in this country, and several High Court authorities, all taken out of context. This material is irrelevant to the disposition by this Court of the present action and the pending applications and I will put it to one side, unless it requires an express mention.
The death of the defendant
Unfortunately, as noted above, the defendant borrower passed away on or about 27 September 2023.[17] Prior to the defendant passing, two applications had been filed being, in effect, duelling applications for summary judgment and summary dismissal of the action, brought by the plaintiff and the defendant respectively. Those applications were the subject of programming directions made by the Court on 17 April 2023.[18] The hearing of those applications was adjourned following the death of the defendant.
[17] Affidavit of Ms Dalton sworn 26 September 2024 [8].
[18] Orders of Registrar Hosking dated 17 April 2023.
I pause to observe some matters of legal significance arising from the death of Mr Fish.
First, upon the death of the defendant, by virtue of s 9 of the Public Trustee Act 1941 (WA), his estate vested in the Public Trustee.
Second, once a grant of probate is obtained in respect of the defendant's estate, that estate will vest in the appointed executor as from the date of death, by operation of s 8 of the Administration Act 1903 (WA). Registrar C Boyle helpfully explained the operation of these statutory provisions, by reference to decisions of the Full Court of this Court and the Full Federal Court, as follows:[19]
There is thus a certain retrospectivity, or post-fact ratification, about a grant. The meaning of the relationship between provisions such as s 9 of the Public Trustee Act and the retrospective vesting as from the date of death on the making of a grant was explained by the Full Court of the Federal Court of Australia in Byers v Overton Investments Pty Ltd [2001] FCA 760; (2001) 186 ALR 280 and see also Re The Full Board of the Guardianship and Administrator Board [2003] WASCA 268 [46]. The result is that, once a grant has been made, the executor is both fully empowered from the date of death and also accountable as an executor. There is deemed to have been no interregnum.
[19] Bassett v Atherley [2011] WASC 117 [8] (Registrar C Boyle).
As matters stand, there has been no application for a grant of probate, or for letters of administration in respect of the estate of the defendant. Generally speaking, until probate or letters of administration are obtained, an executor cannot be sued, given the executor's liability is to pay out of assets of the estate and the assets do not vest until probate or letters of administration are granted. Indeed, the executor may renounce until that time.[20] The foregoing will be effected by any conduct on the part of the executor, prior to the grant, which constitutes an executorial act in respect of the property of the estate, and by which the executor may become an executor de son tort.[21]
[20] Taylor v Giampaolo [2004] WASC 109 [10] (Newnes M, as his Honour then was).
[21] Taylor v Giampaolo [12].
Third, by virtue of O 18 r 7(1) RSC, the action against Mr Fish did not abate by reason of his death, given the underlying nature of the cause of action. The claim against Mr Fish is pursuant to contract. The cause of action survived his death, by reason of s 4(1) of the Law Reform (Miscellaneous Provisions) Act 1943 (WA). That legislative enactment relevantly provides that, on the death of any person, 'all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of his estate'. It is undoubtedly the case that the claims in contract against Mr Fish survived by reason of this provision. Indeed, the same result would have obtained at common law: Kalejs v Minister for Justice and Customs[22] and Paula Susan Chappell as Executor of Estate of Robert Hastings Hitchcock v Goldspan Investments Pty Ltd.[23]
[22] Kalejs v Minister for Justice and Customs [2001] FCA 1769; (2001) 111 FCR 442 [15] (Kenny J).
[23] Paula Susan Chappell as Executor of Estate of Robert Hastings Hitchcock v Goldspan Investments Pty Ltd [2021] WASCA 205; (2021) 58 WAR 503 [67] (Buss P and Mitchell JA).
Let me now return to the chronology.
Over the course of the past 14 months or so, following the defendant's death, the plaintiff's solicitors have communicated with the partner of Mr Fish, Ms Kounis, to understand whether she had a lawful right to represent the estate of Mr Fish. Regrettably, Ms Kounis delayed her responses to the plaintiff and, to the extent to which she communicated with them, her communications were less than forthcoming.
It therefore appeared to the plaintiff and to the Court, prior to the hearing on 3 December 2024, that there was no will in existence and no personal representative had been properly appointed in respect of the defendant's estate. That is, there had been no application for probate or for a grant of letters of administration in respect of the defendant's estate. On occasions, the defendant's partner, Ms Kounis, had styled herself as the executor of the defendant's estate and as holding an enduring power of guardianship on behalf of the defendant. However, Ms Kounis had produced no material to support the basis for her appointments in this regard, notwithstanding requests made by the plaintiff's solicitors.
There was thus something of a delay in the proceedings following the death of Mr Fish.
Given the hiatus in the proceedings, the plaintiff indicated to Ms Kounis its intention to proceed with the action and sought leave to do so pursuant to O 18 r 15(1) RSC. The Court is empowered by this provision to proceed with an action in the absence of a person representing the estate of a deceased person. That application, and the earlier applications which had been held in abeyance, were then listed for hearing on 3 December 2024.
Ms Kounis produces a copy of the last will and testament
In light of the foregoing, it was more than surprising to be informed by Ms Kounis at the hearing on 3 December 2024 that a last will and testament had apparently been signed by Mr Fish on 22 September 2023, by which Ms Kounis had been appointed as his personal representative, and that Ms Kounis had held a copy of that will since it was signed.
A copy of the will was handed to the Court and to counsel for the plaintiff at the hearing.
The will consists of 4 pages. There is a cover page, followed by two pages containing five operative provisions (styled as Articles I, II, III etc), and a final page which contains a 'self-proving affidavit' by which Mr Fish and the witnesses to the will declared various matters. Whilst I cannot be certain, the drafting and style of the will tends to suggest it was based on a precedent which originated in the United States of America.
On its face, by Article I of the will, Mr Fish appoints Ms Kounis as his personal representative, in the following terms:
Article I
I appoint Ainslie Irene Kounis as my Personal Representative to administer this Will, and ask that she be permitted to serve without Court supervision and without posting bond. If Ainslie Irene Kounis is unwilling or unable to serve, then I appoint Robert Gordon Fish to serve as my Personal Representative, and ask that he be permitted to serve without Court supervision and without posting bond.
The inclusion of language that the personal representative 'be permitted to serve without Court supervision and without posting bond' is unusual, at least from an Australian perspective.
The will identifies several beneficiaries, who are to receive specific bequests, or the residue of the estate. The beneficiaries are Ms Kounis and the mother, brother and sister of Mr Fish, together with six other persons whose relationship to Mr Fish is not clear. The first paragraph of Article III of the will addresses the proceeds of the sale of Mr Fish's house, which I assume for present purposes is the residence mentioned at the top of that page of the will, being the Thornlie Property. The first paragraph of Article III states as follows:
Article III
I devise, bequeath and give any proceeds from the sale of my house equally 25% each to my partner Ainslie Irene Kounis, my mother Gwenneth Isabel Fish, my sister Karen Therese Edwards and my brother John Donald Fish.
The remainder of Mr Fish's 'residuary estate' is the subject of Article IV, which provides as follows:
Article IV
I devise, bequeath and give all of the rest and remainder of my residuary estate as follows:
a.25% to my partner, Ainslie Irene Kounis
b.25% to my mother, Gwenneth Isabel Fish
c.25% to my sister, Karen Therese Edwards
d.25% to my brother, John Donald Fish
As noted above, the will also contains a 'self-proving affidavit' by which Mr Fish and the witnesses to the will have declared that Mr Fish 'executed the instrument as his will', that Mr Fish 'signed or acknowledged his signature already made, or directed another to sign for him in his presence' (and in the presence of the witnesses), and Mr Fish 'executed the will as his free and voluntary act for the purposes expressed in it', among other matters. The concept of a 'self-proving affidavit' is not one that is known to the law of this country, so far as I am aware.
Some matters of consequence should be noted, arising from the late production of the will by Ms Kounis.
First, I understand that Ms Kounis had not taken any steps over the past 14 months to obtain a grant of probate in respect of the estate of the defendant.
Second, despite providing Ms Kounis with an opportunity at the hearing to explain the delay in applying for probate, I consider that no adequate explanation was provided by Ms Kounis for her failure to take steps in this regard. With respect, the explanations provided by Ms Kounis, to the effect that the magnitude of the work required to clean the Thornlie Property prevented her applying for probate over the past 14 months, were unconvincing.[24] This time period includes an appropriate allowance of time to permit Ms Kounis to grieve following the death of her partner. In my view, an appropriate time period was afforded by the plaintiff. I do not consider the communications from the plaintiff’s solicitors reveal any insensitivity on the part of those solicitors.
[24] ts 3, 9 and 12.
Third, despite providing Ms Kounis with an opportunity at the hearing to explain matters, no good reason was identified by Ms Kounis as to why the existence of this will could not have been earlier communicated to the plaintiff.
Fourth, as I explained to Ms Kounis, the hearing on 3 December 2024 was not the occasion for the Court to pronounce on the validity of Mr Fish's will. That is precisely why an application for a grant of probate should have earlier been made.
Fifth, Ms Kounis maintained that she was the rightful executor of the estate and able to represent the defendant in these proceedings. In the absence of a grant of probate, that is simply not correct. As earlier noted, it is only upon a grant of probate that the estate of a deceased person passes to and becomes vested in the executor to whom probate has been granted: Administration Act 1903 (WA), s 8. The process of obtaining probate allows the Court to assess the validity of the will and the appointment, and permits interested parties to be heard before probate is granted.
Ms Kounis' complaint to the Australian Financial Complaints Authority
There is a further preliminary point to address.
Prior to the hearing, the Court had been informed by the plaintiff's solicitors that Ms Kounis has made a complaint to the Australian Financial Complaints Authority (AFCA), purportedly on behalf of Mr Fish. The making of such a complaint is relevant given the mandatory restrictions which operate on a 'financial firm' under the external dispute resolution framework which has been established under pt 7.10A of the Corporations Act 2001 (Cth) (Corporations Act).
By way of context, AFCA is an external dispute resolution body established under the Treasury Laws Amendment (Putting Consumers First—Establishment of the Australian Financial Complaints Authority) Act 2018 (Cth) (AFCA Act). The AFCA Act commenced in 2018.[25] The legislation introduced pt 7.10A of the Corporations Act, which provides for the establishment and operation of a single financial services resolution scheme to be administered by AFCA. In effect, AFCA replaced several dispute resolution bodies in the financial services sector, including the Financial Ombudsman Service.
[25] See the legislative background set out in the decision of the Full Federal Court in MetLife Insurance Limited v Australian Financial Complaints Authority Limited [2022] FCAFC 173.
The plaintiff's solicitors provided to the Court a copy of a letter they received from AFCA dated 29 November 2024, which also attached a letter from AFCA to Ms Kounis of the same date. The effect of the correspondence is that AFCA has now consented to the plaintiff proceeding with the hearing which is before the Court. The correspondence correctly observes that the defendant had taken steps in the action beyond the filing of a defence, and notes that 'there is no information to show [Ms Kounis had] lodged this complaint on behalf of Mr Fish's deceased State'.
The letter from AFCA refers to 'section A7.2(d) of the Rules'. I understand this is a reference to the AFCA Complaint Resolution Scheme Rules dated 1 July 2024. Those rules relevantly provide that a 'financial firm' may with AFCA's consent 'continue with legal proceedings if the Complainant, anyone else joined as a party to the complaint or Other Affected Party took a step in defending those legal proceedings that went beyond lodging a defence or a defence and counterclaim'.
Ms Kounis informed the Court that she intended to pursue this complaint further with AFCA. Nonetheless, the plaintiff indicated it wished to proceed with the hearing of the applications. As the written consent of AFCA has been provided, the view I reached was that it would be consistent with this external dispute resolution framework, by which the plaintiff is bound, to proceed with the hearing. I therefore need say no more about the complaint lodged with AFCA by Ms Kounis. That is a matter which Ms Kounis may separately pursue outside the proceedings which are before this Court.
Against this background, let me turn to the extant applications.
E. Plaintiff's application for leave to proceed
Logically, the plaintiff's application for leave to proceed under O 18 r 15(1) RSC is the first application to consider.
The plaintiff seeks an order that the proceedings continue in the absence of a person representing the estate of the deceased defendant.
Evidence
The application is primarily supported by the Dalton Affidavit. Ms Dalton is a law clerk with the law firm representing the plaintiff. In her affidavit, Ms Dalton sets out the background to this matter, deposes to the death of Mr Fish in September 2023, and attaches the various communications which have passed between the plaintiff and both Ms Kounis and the Court. Ms Dalton also deposes to the enquiries she has undertaken in relation to the Thornlie property, on the ASIC website, and of this Court's registry.
The material adduced in Ms Dalton's affidavit demonstrates the following matters, and I so find:
(a)the defendant passed away on 27 September 2023;
(b)between October 2023 and September 2024, the plaintiff's solicitors sent several letters to Ms Kounis seeking details of the personal representative of the defendant, if any, and requesting that Ms Kounis explain the basis on which she had represented that she was the appointed executor or guardian;
(c)not until 9 September 2024 did Ms Kounis respond to the plaintiff's solicitors, with a letter and a document styled as 'Living Testimony in a Form of an Affidavit and Declaration of Truth' sworn by Ms Kounis on 9 September 2024, which is in the same form and has the same content as the document I have referred to above at [25];
(d)the letter from Ms Kounis and her 'Living Testimony' document contain nothing of substance by way of a response to the request from the plaintiff's solicitors;
(e)as of 26 September 2024, no application for probate had been made in relation to the estate of Mr Fish, nor had any application for a grant of letters of administration been filed (and there was no suggestion at the hearing that any applications of this nature had been filed since);
(f)as of 26 September 2024, the amount owed by the defendant to the plaintiff pursuant to the 'Loan Agreement' and 'Mortgage' was $294,582.14; and
(g)Ms Kounis' representation, in her letter dated 9 November 2023, that she holds an 'Enduring Power of Guardianship for and on behalf of Stevan Gordon of the family: Fish' is not supported by any written documentation.
I record that Ms Kounis asserted in her letter dated 9 September 2024 that the plaintiff was not acting in good faith or with clean hands, complained that the plaintiff's solicitors had communicated with her using her email address (which she had asked not be used), and explained that work was still being undertaken by her to clean up the property, and she had contacted agents with a view to selling the property.
Insofar as the above letter directed criticisms at the plaintiff's solicitors, I do not accept there is any basis for those assertions, at least on the evidence before the Court. It is apparent from the correspondence, and I accept, that those solicitors sought to give the family of the deceased adequate time to grieve and to deal with his affairs without adding unnecessary stress.
I also record that I am satisfied the plaintiff served on Ms Kounis the materials filed by the plaintiff in support of the application for leave to proceed, together with a copy of the letter which was issued by the Court to the plaintiff's solicitors on 11 November 2024. In that letter, which was issued at my direction, the plaintiff’s solicitors were informed of the date and time of the hearing, and the plaintiff was directed to ensure that written notice of the hearing and service of the associated documents was effected on Ms Kounis by 5.00pm on Friday, 22 November 2024.
Relevant principles
The Court is empowered to proceed in the absence of a person representing the estate of a deceased person, pursuant to O 18 r 15(1) RSC. Rule 15 provides that:
15. Representation of deceased person interested in proceedings
(1) Where in any proceedings it appears to the Court that a deceased person was interested in the matter in question in the proceedings and that he has no personal representative, the Court may, on the application of any party to the proceedings, proceed in the absence of a person representing the estate of the deceased person or may by order appoint a person to represent that estate for the purposes of the proceedings; and any such order, and any judgment or order subsequently given or made in the proceedings, shall bind the estate of the deceased person to the same extent as it would have been bound had a personal representative of that person been a party to the proceedings.
(2) Before making an order under this rule, the Court may require notice of the application for the order to be given to such (if any) of the persons having an interest in the estate as it thinks fit.
I addressed the scope of this power in a recent decision: King as Bankruptcy Trustee of Jose Fernandas De Silva v De Silva.[26] The principles below are drawn, in part, from that decision.
[26] King as Bankruptcy Trustee of Jose Fernandas De Silva v De Silva [2024] WASC 367.
The power in O 18 r 15(1) RSC is engaged in circumstances where no personal representative has been appointed.[27]The discretion is relatively wide,[28] although the court ought proceed cautiously before making dispositive orders affecting the interests of an estate in the absence of any representative. Indeed, the rule itself affords an alternative pathway to the court, namely to order the appointment of a person to represent the interests of the estate for the limited purposes of the proceeding. The rule further empowers the court to require that notice be given to particular interested persons: see O 18 r 15(2) RSC. Whether further notice should be given to interested parties is a matter to which I will need to return below.
[27] Curtius v Caledonian Fire and Life Insurance Company (1881) 14 Ch D 534, 537 (Bagallay LJ) (Curtius).
[28] Curtius (537) (Baggallay LJ).
In Steinecke v Wayne,[29] Brereton J (as his Honour then was) addressed the equivalent power applicable in the Supreme Court of New South Wales (being r 7.10(2) of the Uniform Civil Procedure Rules 2005 (NSW)), explaining that the power had in the past been exercised:[30]
…where there are other parties to the proceedings who have the same interests as the estate, where the interest in question is small or contingent, or where the deceased had no practical beneficial interest in the property involved in the proceedings.
[29] Steinecke v Wayne [2011] NSWSC 428 (Steinecke).
[30] Steinecke [11], citing both Curtius and Crossley v City of Glasgow Life Assurance Company (1876) 4 Ch D 421 (Crossley).
Further, in Crossley, the court found the plaintiff in question had a good claim to the relief sought and, by force of that reasoning, the estate had no basis to oppose the relief. Such a conclusion provided a sound basis to proceed in the absence of a personal representative. There is no good reason not to follow this approach when considering the exercise of the power in O 18 r 15(1) RSC.
Whether the deceased has no personal representative?
During the hearing of the matter, I raised with counsel for the plaintiff whether there was any question as to the application of the rule in circumstances where it now appeared, at least on the face of the material produced, that a person had been appointed by a testamentary instrument as a personal representative. That is, can it be said in these circumstances that the deceased 'has no personal representative' within the meaning of O 18 r 15(1) RSC.
The view I have reached in this regard is that the provision may nonetheless be engaged in these circumstances. Until the grant of probate, a person appointed as executor by a will is not permitted to formally act on the record for the deceased. Upon probate being granted, an application would normally then be made by the executor, if necessary, to be substituted in the place of the deceased as a party to the proceedings, pursuant to O 18 r 7(2) RSC. It is therefore correct to say, at present, that the defendant has no personal representative, in the sense he has no appointed personal representative. This approach is consistent with the evident purpose of the provision, which is to permit proceedings to continue, and to avoid delays, where there is no person able to formally represent the interests of the deceased individual.
The foregoing approach is also entirely consistent with the recognised approach that the Court cannot act on the basis that an unproved will is the last will and testament of the deceased.[31]
Whether O 18 r 15(1) RSC operates when the deceased is a party?
[31] Steinecke [10].
Further, it might be thought that the purpose of O 18 r 15(1) RSC is confined to the interests of deceased persons who are not already parties to the proceeding in question.
The seminal authorities in the area, such as Curtius, arose in contexts in which the deceased person was not a party to the proceedings, but had an interest in the outcome of the proceedings.
In Porters v Cessnock City Council,[32] an authority cited by the plaintiff's counsel and which is referred to within the Red Book, Campbell J identified various circumstances in which the related provision in New South Wales and its predecessors had been applied, all of which appear to have arisen in scenarios where the deceased was not a party to the proceedings at the time of his or her death:[33]
[12]The circumstances in which such an order can be made include where a plaintiff in proceedings has an equitable claim to a fund of money, but the legal personal representative who is entitled to claim that fund from someone else is absent. In those circumstances, the plaintiff can be permitted to enforce its equitable claim directly against that “someone else”. For example, the procedure has been used in circumstances where an equitable mortgagee of a policy of life insurance seeks to be paid the proceeds by the life insurance company, once the life insured has died, in circumstances where no grant of representation has been taken out in the estate of the life insured: Webster v British Empire Mutual Life Assurance Co (1880) 15 Ch D 169; Curtius v Caledonian Fire and Life Insurance Co (1881) 19 Ch D 534. Those cases hold that a court can be justified in ordering the whole of the proceeds to be paid over to the mortgagee where the mortgage debt exceeds the policy proceeds, and in ordering the amount of the mortgage debt to be paid to the mortgagee where the policy proceeds exceed the amount of the mortgage debt.
[13]The procedure has also been used, in a time before there was a statutory power to sell land to recover rates, to enable a Council to enforce its statutory charge for rates by obtaining a court order for sale when the registered owner of land had died and no representation had been obtained, but the people beneficially entitled to the land were parties to the suit: Borough of Drummoyne v Hogarth (1907) 23 WN (NSW) 243.
[32] Porters v Cessnock City Council [2005] NSWSC 1275 (Porters).
[33] Porters [12] - [13].
However, it is apparent the provision has a broader operation than this. Having regard to the text of O 18 r 15(1) RSC, there is no reason why the provision would not operate where the deceased person in question is a pre-existing party to the action, such as is the case with Mr Fish. A party to the action who dies is a person 'interested in the matter in question in the proceedings'. Support for this conclusion can be found in the decision of the Supreme Court of New South Wales in Reeves v Reeves,[34] concerning rule 7.10 of the Uniform Civil Procedure Rules 2005 (NSW), and the authorities referred to therein by Meek J. I will proceed on this basis.
What is the position with respect to orders for foreclosure?
[34] Reeves v Reeves [2024] NSWSC 386 [174] (Meek J).
There is a final point to address for the sake of completeness, before I turn to the disposition of the application. In the Red Book commentary on O 18 r 15, the learned authors note that an 'order for foreclosure should not be made under this rule', citing the long-standing authority of Aylward v Lewis.[35]
[35] Aylward v Lewis [1891] 2 Ch 81 (North J) (Aylward).
The point was not raised by either party. In the absence of argument on the issue, the point can be addressed by confining Aylward to its facts and to circumstances in which foreclosure is sought, without expressing any view as to the continuing correctness of the decision.
The application before the Court in Aylward was for the making of an order for foreclosure absolute. Through the process of foreclosure, a mortgagee is deemed to have taken the property in full satisfaction of the mortgage debt and is precluded from bringing other proceeding to recover the mortgage money.[36]
[36] Kenney v Commonwealth Bank of Australia [2016] WASCA 44 [27] (Buss, Newnes and Murphy JJA).
In Aylward, a person had been appointed by the Court to represent the interests of the estate. The appointed person was the brother of the deceased. An order absolute was sought, in the event that the appointed person failed to pay the outstanding sum. North J declined to make the order, holding that:[37]
I am not satisfied that a person who has not got the mortgagor's estate to pay with properly represents the mortgagor's estate in a foreclosure action; in fact, in my opinion he does not. I will not make an order for foreclosure in the absence of a properly constituted representative of the mortgagor.
[37] Aylward (83) (North J).
Unlike the situation in Aylward, the plaintiff is not in this case seeking orders for foreclosure in the absence of payment by any party. To be clear, the present action is not a foreclosure action, and the relief which is sought is consequent upon prior defaults on the part of the defendant. Further, as explained by Steytler J (as his Honour then was) in Sandgate Corporation Pty Ltd (In Liq) v Ionnou Nominees Pty Ltd,[38] there can be no actions for foreclosure in the context of land under the Torrens system. Foreclosure in respect of such land is addressed administratively, after an aborted sale by auction, as described in s 121 and s 122 of the TLA.[39]
[38] Sandgate Corporation Pty Ltd (In Liq) v Ionnou Nominees Pty Ltd [2000] WASC 91 (Sandgate).
[39] Sandgate [40] - [44] (Steytler J).
The present action is an action for possession of the mortgaged property, predicated upon a prior default of the defendant under the Loan Agreement and the Thornlie Mortgage. Accordingly, I consider Aylward does not provide an obstacle to the relief sought by the plaintiff.
Disposition - whether further notice should be given?
It is unfortunate that the Court and the plaintiff were only given notice of the terms of the will of Mr Fish at the hearing on 3 December 2024 (which identifies certain additional interested persons). This is unfortunate because Ms Kounis has had the ability to produce that will to the Court and to the plaintiff over the last 14 months or so, but did not do so.
Nonetheless, I do not consider the existence of the will requires that separate notice of the proceedings now be given to any of the named beneficiaries in the will. This includes the persons named in the first paragraph of Article III which deals with the sale of the proceeds of the house. I say this for the following reasons.
First, notice of the application has already been given to the person identified in the will as a potential personal representative, namely Ms Kounis. All present indications are that Ms Kounis is the most likely person to represent the interests of Mr Fish.
Second, in the 14 months since the death of Mr Fish, none of these additional beneficiaries have lodged an application for a grant of probate or for letters of administration, whether in relation to the will produced by Ms Kounis or some other testamentary instrument.
Third, on my review of the plaintiff's summary judgment application, it is apparent that there is nothing which could be said by any of these persons in opposition to the application for summary judgment, which has been brought by a secured lender with a first registered mortgage over the property in question.
I therefore consider the provision of formal notice to these persons, and a further consequential delay in the determination of the proceedings, would serve no utility in the circumstances and not be in the interests of justice.
Disposition - whether leave to proceed should be given?
This is an appropriate case in which leave should be given pursuant to O 18 r 15(1) RSC. My reasons for reaching this view are as follows.
First, the defendant passed away some 14 months ago and in the intervening period no steps have been taken by any person to obtain probate or otherwise seek appointment as the personal legal representative of Mr Fish's estate. A delay in the proceedings of 14 months is a significant lapse of time, particularly given the plaintiff had foreshadowed a summary judgment application prior to that point in time.
Second, the person most likely to pursue probate, being the defendant's partner Ms Kounis, who has belatedly produced a copy of a will to the Court, has not responded to communications from the plaintiff in a timely or fulsome manner. This has contributed to the delays in this matter to date. I infer that Ms Kounis has simply been unwilling to pursue the legal steps needed to obtain such an appointment, particularly given her explanations for the delays were unconvincing and what appears to be Ms Kounis' well-entrenched view that orthodox laws do not apply to her or Mr Fish's business affairs. I am satisfied Ms Kounis had ample notice of the application and ample opportunity to take steps to obtain probate or otherwise meaningfully engage with the plaintiff's solicitors, but failed to do so.
Third, this is not a circumstance in which the Court should give consideration to appointing a person, such as Ms Kounis, to represent the estate for the purposes of the present proceedings. Ms Kounis would not be an appropriate person to assume that role, given the attitude she has displayed in her written material to the application of orthodox laws to Mr Fish's financial arrangements and his estate. The Court simply cannot have the necessary confidence that Ms Kounis would act as a representative of the estate in accordance with the law. Moreover, there is no indication that any other person wishes to assume an appointment to act on behalf of Mr Fish.
Fourth, as I will explain in due course, my view is that the claim advanced by the plaintiff is such that summary judgment should be granted, and I cannot see any basis on which the estate could oppose the relief which is sought by the secured lender which holds a first registered mortgage. In this regard, I am conscious that Mr Fish, before his death, had filed materials to explain the grounds on which he opposed the relief and, as will already be apparent from what I have said, those grounds reflect a nonsensical view of the applicable laws.
I will therefore grant the plaintiff leave to proceed against the defendant in the absence of a personal representative.
F. Plaintiff's application for summary judgment
The plaintiff seeks summary judgment in accordance with the statement of claim indorsed on the Writ. Allied to this relief, the plaintiff requires an extension of time given the application was filed outside the 21 day time period, and seeks a waiver of the conferral requirement.[40]
Evidence
[40] Plaintiff's submissions dated 29 June 2023 [1] – [2].
The evidence upon which the plaintiff relies is found in the Hillman Affidavit, the Deen Affidavit, the Leedham Affidavit and the Pye Affidavit. The Court notes that Ms Kounis indicated she did not have access to all of this material. Given the conclusion the Court has reached as to the plaintiff's application for leave to proceed under O 18 r 15(1) RSC, whether Ms Kounis has access to this material or not does not present an obstacle to the Court's determination of the summary judgment application
In summary, the material adduced in the above affidavits demonstrates the following matters, and I so find:
(a)the defendant entered into a written Loan Agreement with the plaintiff dated 2 May 2014, with a loan term of 30 years;
(b)the defendant entered into a written Mortgage dated 2 May 2014 (being the Thornlie Mortgage as earlier defined), registered in respect of the Thornlie Property, by which payment of the loan was secured;
(c)there was a breach by the defendant of the Thornlie Mortgage and Loan Agreement, in that the defendant failed to make payments to the plaintiff as required;
(d)the plaintiff served the defendant with a comprehensive notice of the default dated 29 March 2021 requiring the defendant to remedy the default, such notice according with the contractual and statutory requirements;[41]
(e)as the breach was not remedied within the timeframe provided, the Loan Agreement accelerated and pursuant to its terms, the plaintiff became entitled to take enforcement steps in relation to the Thornlie Property;
(f)between 2 May 2014 and 7 June 2019, payments were received from the defendant in respect of the loan account corresponding to the Loan Agreement;
(g)between 23 September 2020 and 2 November 2021, following the sale and settlement of the separate property in Queensland mortgaged to the plaintiff for which the defendant was the registered proprietor, further payments were received from the defendant in respect of the loan account corresponding to the Loan Agreement;
(h)no further payments were received from the defendant to the loan account corresponding to the Loan Agreement after 2 November 2021 (the final payment made was $600 on 2 November 2021);[42]
(i)the amount owed by the defendant to the plaintiff as of 26 September 2024 was $294,582.14;[43] and
(j)Ms Deen, who is a Customer Assist Manager in the Specialist Customer Care department of the plaintiff has adequately explained the delay in bringing the summary judgment application and has sworn that there is no defence to the plaintiff's claim and there is no other reason why the claim should not be resolved summarily.[44]
Relevant principles
[41] Deen Affidavit [14] and Attachment SLD-5.
[42] Deen Affidavit [15].
[43] Dalton Affidavit [27] and Attachment SLD-19.
[44] Deen Affidavit [29] - [30].
The principles which apply to the determination of a summary judgment application are well settled. I summarised the principles recently in Iron Horse Machines Pty Ltd v Olmate Holdings Pty Ltd.[45] It is a jurisdiction to be exercised with great care and only where it is clear there is no real question to be tried. The facts which are established must be conclusive such that it is possible to say, without doubt, that there is no question to be tried: Fancourt v Mercantile Credits Limited.[46]
Disposition
[45] Iron Horse Machines Pty Ltd v Olmate Holdings Pty Ltd [2024] WASC 383.
[46] Fancourt v Mercantile Credits Limited [1983] HCA 25; (1983) 154 CLR 87, 99.
I accept the plaintiff's submission that this is an appropriate case in which to grant summary judgment and that the plaintiff has discharged the onus of demonstrating there is no arguable defence to the claim. As submitted by the plaintiff, merely because the defendant has filed a defence to the claim does not preclude the grant of summary judgment in a proper case. The rules of this Court are directed at an examination of the existence of any 'arguable' defence which has been advanced, not merely the filing of a pleading in opposition.
As to the evidentiary requirements, it should be noted that the Court is permitted to receive evidence of a hearsay nature on an interlocutory application such as this, provided the sources or grounds of the stated belief are set out: see O 37 r 6(2)(c) RSC. Further, the Court is able to receive documentary material in evidence where it complies with the statutory requirements of the business record provision: s 79C(2a) of the Evidence Act 1906 (WA).
I am satisfied on the admissible evidence adduced by the plaintiff that the plaintiff entered into the instruments in question, that loan funds were advanced to the defendant and he had the benefit of those funds. The 'Loan Agreement' and 'Mortgage' instrument are admissible on this application as business records of the plaintiff. I am satisfied the documents are genuine business records, given the matters deposed to by Ms Deen in her affidavit.
Further, I accept the plaintiff complied with the notice provisions of the 'Loan Agreement' and the defendant failed to comply with the terms thereof. It follows, in accordance with the express language of the agreement and the mortgage instrument that the plaintiff is entitled to possession of the Thornlie Property which is the subject of the Thornlie Mortgage.
I accept the submission of the plaintiff that the defendant's entry into and initial compliance with the terms of the Loan Agreement and the Thornlie Mortgage, in that he repaid parts of the loan, and the benefit the defendant received of the use of the funds which were advanced, all positively demonstrate that he was aware of the Loan Agreement and the Thornlie Mortgage. The contrary assertions which have been made by the defendant in opposition to the application, in his affidavits and submissions, should be rejected as being untenable.
Mr Fish's assertions that 'the mortgage appears to have been issued to myself, the living man as Mortgagor' and 'the document appears to have been executed by the Registered Proprietor', which are ostensibly advanced to undercut the plaintiff's claim, in truth demonstrate that Mr Fish was well aware of the obligations he assumed upon receipt of the loan funds. His statements, which are based on the nonsensical distinction between Mr Fish as a 'living man' and 'the Defendant all caps entity', rather tend to provide support for the plaintiff's claim.
I accept the plaintiff's submission that 'the pseudo legal straw man argument the defendant relies on is entirely baseless'.
The additional series of arguments raised by the late Mr Fish, by which he opposed the plaintiff adducing documentary evidence through affidavits sworn by persons who were not witnesses or authors of the documents, also fall down.[47] As I have noted, the Rules of this Court, and the provisions of the Evidence Act to which I have referred, permit this course to be adopted. The substantive affidavit relied upon by the plaintiff is that of Ms Deen, who is a Customer Assist Manager with the plaintiff, working in its Specialist Customer Care department. Ms Deen deposes that she has access to the books and records of the plaintiff and is duly authorised to swear the affidavit on its behalf. While Ms Deen's affidavit would have benefited from some greater particularity as to the nature of her role and her duties within the plaintiff's business, the affidavit and the documentary material attached thereto is sufficient to support the summary judgment application.
[47] See, for example, Mr Fish's affidavit sworn 15 May 2023 [9] - [10].
The relief which is sought should be granted.
Further, the delay in filing the application has been adequately explained by Ms Deen in her affidavit,[48] and the requirement for conferral should be waived in the circumstances. It is quite apparent that, given the defendant's application for dismissal had already been filed and given the pseudo-legal approach adopted by the defendant, that conferral would not have been of any assistance in these particular circumstances and would only have contributed to further expenditure of legal costs.
[48] I refer in particular to [16] - [28] of the Deen Affidavit.
G. Defendant's application for dismissal
Given the conclusions I have reached in relation to the plaintiff's summary judgment application, it follows that I will reject the defendant's application to dismiss the action. Neither the defendant's filed defence, nor the submissions and affidavit material he has filed, reveal any basis in law to resist the action.
H. Conclusion and orders
For these reasons, I will order that the plaintiff be granted leave to proceed pursuant to O 18 r 15(1) RSC, that the plaintiff have leave to file and bring the summary judgment application out of time, that the conferral requirement in O 59 r 9 RSC be waived, and that the plaintiff be entitled to summary judgment in the terms sought. It follows that the defendant's application for dismissal should itself be dismissed.
I will hear from the parties as to appropriate orders which should now be made including as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LM
Associate to the Honourable Justice Lundberg
12 DECEMBER 2024
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