Statewide Secured Investments Pty Ltd v Cannon and Cipriani
[2018] FCCA 110
•29 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| STATEWIDE SECURED INVESTMENTS PTY LTD v CANNON AND CIPRIANI | [2018] FCCA 110 |
| Catchwords: DEBTS – Assignment – whether debt assigned at law – whether notice given to debtor. |
| Legislation: Supreme Court Act 1986 (Vic), ss.60, 101 |
| Cases cited: Statewide Secured Investments Pty Ltd v Cipcon Pty Ltd [2016] VCC 18 Economic Life Assurance Society v Usborne [1902] AC 147 BMG Poseidon Corp Pty Ltd v Adelaide Bank Limited |
| Applicant: | STATEWIDE SECURED INVESTMENTS PTY LTD |
| Respondents: | JOHN GEORGE CANNON AND WALTER CIPRIANI |
| File Number: | MLG 2352 of 2016 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 21 September 2017 & 2 November 2017 |
| Date of Last Submission: | 17 November 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 29 January 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Cameron |
| Solicitors for the Applicant: | Ashurst Australia |
| Counsel for the Respondents: | Mr Percy |
ORDERS
The application for review of the Registrar’s orders filed 18 April 2017 be dismissed.
The applicant’s costs of the application for review, including reserved costs, be paid from the estate of the bankrupts with the same priority as if they were costs of the creditor’s petition.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 2352 of 2016
| STATEWIDE SECURED INVESTMENTS PTY LTD |
Applicant
And
| JOHN GEORGE CANNON AND WALTER CIPRIANI |
Respondents
REASONS FOR JUDGMENT
(As Corrected)
The respondent debtors apply to review of a sequestration order made by a Registrar of this court. The respondents, are judgment debtors pursuant to a judgment of the County Court of Victoria, where judgment was again entered against each of them in the sum of $5,342,205.39 in favour of the applicant (‘Statewide’). In the same proceedings, judgment was also entered against each of the debtors in favour of the second plaintiff in those proceedings, Permanent Custodians Limited (ACN 004426384) (‘Permanent’) in the sum of $2,254,299.87.
The litigation in the County Court arose out of finance arrangements entered into by the debtors for the purpose of a building project. The debtors (through a company Cipcon Pty Ltd) bought a property at Hastings in 1998. They proposed to develop 19 apartments with a manager’s cottage and common facilities such as a swimming pool. In 2000 Statewide agreed to advance $1m to enable the first 6 apartments to be constructed. Thereafter further advances were made of around $2.1m. The advances were secured by a mortgage.
The building project was lengthy and difficult, resulting in a significant number of issues between the parties. In 2003 Statewide brought proceedings in the Supreme Court of Victoria seeking judgement for the money owing to it and possession of the property at Hastings. Judgement was entered for $2,315,947.50, including interest to the date of judgment, and orders were made for possession of the property. However, soon after a further agreement was entered into between the parties to continue with the project with financing by Statewide.
Significantly, for the present proceedings, in 2013 (prior to the County Court proceedings) the loans by Statewide were assigned to the second plaintiff in the County Court proceedings, Permanent.
The project was unsuccessful, and proceedings were issued in the County Court of Victoria in March 2012 by Statewide and Permanent as first and second plaintiffs, seeking $8,846,346.92.
The County Court proceedings were heard over 5 days in January 2016. In the County Court proceedings, the issues requiring determination are listed at para. [10] of the judgment (Statewide Secured Investments Pty Ltd v Cipcon Pty Ltd [2016] VCC 18). A significant focus of the trial was whether or not a service deed entered into between the parties in April 2004 required the plaintiff to continue funding the building project to completion, and whether or not Statewide and Permanent were entitled to claim interest on the advances that were made after April 2004. Further claims were made with respect to whether or not the judgment creditor represented in August 2006, that it would cease to charge interest on the mortgage debts because it could no longer fund the project, and whether or not there was a guarantee enforceable by the judgment creditor or Permanent against Mr Cipriani. These issues were decided against the debtors in the County Court for the reasons set out in the judgment.
Issues in the County Court proceedings that have become relevant in the present application were:
a)whether or not the judgment debtors could maintain any defence with respect to the monies the subject of the Supreme Court judgment;
b)alternatively, whether or not Statewide or Permanent could seek to recover in the County Court proceedings the amounts for which judgment was entered in the Supreme Court;
c)whether or not contractual or statutory interest was payable on the Supreme Court judgment debt, if it were recoverable; and
d)the calculation of any entitlement of Statewide or Permanent and in whose favour judgment should be entered as between the Statewide and Permanent.
Statewide and Permanent were, at all times in the County Court proceedings, represented by the same lawyers. It does not appear that there was ever any dispute as between Statewide and Permanent.
The County Court Judge gave judgment dealing with the substantive issues in dispute between the parties in favour of Statewide and Permanent. The parties were then afforded an opportunity to make submissions with respect to the specific orders that would be appropriate.
The trial judge concluded that the interest payable on the Supeme Court judgment debt was to be in accordance with the statutory rate rather than the rate provided for in the loan agreements. The loan agreements do not appear to have provided for post-judgment interest. Thus, as the debt the subject of the Supreme Court proceedings merged in judgment, only statutory interest was payable on that debt after the judgment. See generally Economic Life Assurance Society v Usborne [1902] AC 147, and the reasoning of Foster J in BMG Poseidon Corp Pty Ltd v Adelaide Bank Limited; In the Matter of BMG Poseidon Corp Pty Ltd (No 2) [2009] FCA 404 at [112] where his Honour said:
112. … I … assume that, prior to 3 April 2006, Adelaide Bank’s rights in respect of interest and other charges were confined to the personal covenants in the loan agreements. In that event, those rights were merged in the judgment and ceased to exist after 3 April 2006. As the debt merged in judgment, the provisions of the loan agreement providing for interest on the loan cease to operate and statutory interest would begin to accrue. The situation would be different if the loan agreement contained a clause providing for post-judgment interest. Whilst the debt merged in judgment the creditor continued to have the benefit of the security over the land provided by the mortgage.
The case as put to the County Court judge in final addresses was that Permanent was entitled to judgment with respect to the outstanding loans and the monies due pursuant to the Supreme Court judgment. When preparing submissions on the question of whether interest on the Supreme Court judgment debt should be payable, and if so whether pursuant to the loan agreement or at a statutory rate, the solicitors for the plaintiffs wrote to the solicitors for the debtors, setting out a recalculation of the amounts payable in accordance with the statutory interest rates, and proposed that the judgment debtors be ordered to pay the first plaintiff (Statewide). This figure was the total of the Supreme Court judgment debt together with statutory interest calculated only on the Supreme Court judgment debt.
The debtors filed submissions in response arguing that judgment should not be entered in favour of Permanent on the basis that it was not pleaded that Permanent took an assignment of Statewide’s Supreme Court judgment debt. The debtors argued that in the absence of an assignment of the Supreme Court judgment debt, Permanent did not have the right to make a claim for that sum: see para [1] of submissions of 1 April 2016. In those submissions it was pointed out that no concession was made at trial that the entirety of the debts were payable to Permanent. It was submitted that “at its highest, the second plaintiff’s claim [Permanent’s claim] can be to advances made under the service deed and secured by the mortgage”: see para [2].
Paragraphs [9] and onwards of the debtors’ outline of argument on this issue in the County Court take issue at the plaintiff’s construction of the statutory provisions providing for interest, pointing out that the plaintiffs had failed to execute upon the earlier Supreme Court judgment debt and that they therefore became claimants with respect to the amount in that judgment as they had included it in the County Court proceedings. The tenor of the submissions from [9] to [18] proceeds upon an assumption (on a fair reading of the submissions) that there will be judgment in favour of the judgment creditor (Statewide) with respect to the amount the subject of the earlier Supreme Court judgment, and that the real issue was how much interest, if any, should be awarded as a result of the delay in paying the Supreme Court judgment debt from 2004.
This is made clearer by the submissions made orally in the County Court as to the form of judgment, where at p.6 of the transcript of 5 April 2016, the solicitor for the judgment debtors said, with respect to the relevant order, “…there’s an issue in relation to whether or not the order should be in favour, of either the first plaintiff [Statewide] or of the second plaintiff [Permanent].” The County Court judge responded that there was no issue as the plaintiff sought an order in favour of the first plaintiff [Statewide], not the second plaintiff (T 7.1 to 7.3). The response from the solicitors for the defendant was:
…Sorry, yes, I agree with that, Your Honour. In relation to that sum, Your Honour, in relation to the calculation, we submit that, as set out in those submissions, the appropriate section in which to calculate the judgment or to apply the interest the judgment is under section 60 and not under 101 of the Supreme Court Act.
Argument then ensued with respect to the consequences of approaching the matter under s.60 of the Supreme Court Act 1986, rather than s.101 and the discretions available thereunder. The solicitor for the debtors put the submission that:
We are arguing that interest should only run from the date that proceedings in the County Court were issued, not from the date of the judgment in the Supreme Court.
At this point there was no dispute as to Statewide being the appropriate party to receive an order in their favour with respect to the sums owing pursuant to the Supreme Court judgment, but simply an issue as to the interest calculations thereon. Ultimately the County Court judge rejected the interest arguments as set out in the reasons at T 12 to 13.
The argument in this Court is to the effect that the judgment debt obtained in the Supreme Court by Statewide was assigned to Permanent pursuant to the deed of assignment entered into between various entities on 31 January 2013. As a result it is argued that there is no money owing to Statewide. Clause 3.1 of that agreement provides:
3.1 Assignment and transfer
With effect on and from the Completion Date, each Transferor agrees to assign and transfer all of its right, title and interest in and to its Relevant Lender of Record Loans and related Banksia Funder Assets to BSL, and BSL agrees to accept the assignment and transfer of those Relevant Lender of Record Loans and related Banksia Funder Assets, which assignment and transfer will be:
(a) (to the know of, but without any enquiry on the part of, the relevant Transferor) free from all Security Interests, other than any Security Interest that is, or is created by, the assignment of the Banksia Funder Assets contemplated by this document; and
(b) subject to the terms and conditions of this document.
This clause 3.1 will not constitute an assignment, transfer or attempted assignment or transfer of any Relevant Lender of Record Loans or relate Banksia Funder Assets if the assignment, transfer or attempted assignment or transfer would constitute a breach of the relevant Banksia Funder Loan Document, would constitute a breach of the obligations of BML as responsible entity of the Banksia Mortgage Fund (ARSN 089 852 246), or would otherwise be ineffective or unenforceable.
The terms “Relevant Lender of Record Loans” and “related Banksia Funder Assets” are defined in clause 1.1 and as follows:
“Banksia Funder Assets” means the Banksia Funder Loans and their Related Securities, together with all right, title and interest of BML and SSI associated with those Banksia Funder Loans and Related Securities (including, without limitation, under insurance policies, swaps, guarantees and direct debit arrangements, and including any and all proceeds of sale of such Banksia Funder Assets).
“Banksia Funder Loans” means each of the Loans listed in Schedule 1,
…
“Loan” means a loan by BML, SSI or the Trustee to a Debtor.
…
“Related Security” means, for a Loan, a Security Interest or Guarantee that secures or otherwise supports payments or other obligations under the Loan.
…
“Relevant Lender of Record Loans” means:
(a) in respect of BML, the BLM Lender of Record Loans;
(b) in respect of SSI, the SSI Lender of Record Loans; and
(c) in respect of the Trustee, the Trustee Lender of Record Loans.
The relevant entry in the schedule lists the borrowers, the certificate of title reference, the address of the borrowers and the name of the mortgagee as Statewide.
The neat point that arises (which was never specifically argued in the County Court) is whether or not the reference to “the loans listed in schedule 1” and “their related securities, together with all right, title and interest [of Statewide] associated with those [loans] and related securities” includes the Supreme Court judgment debt.
The monies the subject of the Supreme Court judgment debt were no longer ‘loan’ monies as they were no longer the subject of the terms of the personal covenants in the loan agreement provisions as the obligations merged in judgment (although they would still be secured by the mortgage).
It is argued that the Supreme Court judgment debt fell within a broad reading of the word “loan” under the assignment agreement, or alternatively the judgment debt was a “right, title [or] interest … associated with” the loan. There is some attractiveness to the argument that the judgment debt would be a right, title or interest associated with the loan even if the judgment debt is no longer within the definition of a “loan” (the loan obligations having merged in judgment).
However, a valid and effective assignment of a debt also requires the notification of the debtor by express notice in writing: see s.134 of Property Law Act 1958 (Vic). The notice of assignment (Exhibit ‘GC2-75’) refers to ‘the loan’ but not the Supreme Court judgment debt. As Evatt J said in McIntosh v Shashoua (1931) 46 CLR 494 at p.515 an object of the notice is to allow the debtor to ‘“know with certainty” in whom the legal right to sue him is vested’” see Consolidated Trust Co Ltd v Naylor [1936] HCA 33 and Mango Boulevard Pty Ltd & Anor v Mio Art Pty Ltd & Ors [2016] QCA 148. As a result it does not appear that the notice requirement of s.134 has been complied with and thus there has not been an effective assignment of the judgment debt. The remedy for an assignee of a debt in such circumstances is to join the assignee as only the legal owner of a debt may sue for it in its own name. This is a not a dry procedural formality. The purpose of the rule is to ensure that the court can give judgment in one proceedings with respect to the original creditor and punitive assignee, determining the claims of the creditor and assignee as against the debtor.
It is apparent from the approach taken by Statewide and Permanent in the County Court litigation that the two parties were ultimately not in dispute on the proposition that the judgment debt was not assigned at law pursuant to the assignment agreement. That was the position put to the County Court and the basis upon which judgment was entered. This was the position adopted by them before the County Court in the arguments with respect to interest and the delay in executing on the Supreme Court judgment debt.
There is no suggestion in these proceedings that Permanent has made or sought to pursue any claim with respect to the judgment debt, or in any sense go behind the judgment entered in the County Court.
In Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28, the High Court said, with respect to issue estoppel:
22. Three forms of estoppel have now been recognised by the common law of Australia as having the potential to result from the rendering of a final judgment in an adversarial proceeding. The first is sometimes referred to as “cause of action estoppel [FN: The expression was coined by Diplock LJ in Thoday v Thoday [1964] P 181 at 197-198]. Estoppel in that form operates to preclude assertion in a subsequent proceeding of a claim to a right or obligation which was asserted in the proceeding and which was determined by the judgment. It is largely redundant where the final judgment was rendered in the exercise of judicial power, and where res judicata in the strict sense therefore applies to result in the merger of the right or obligation in the judgment. The second form of estoppel is almost always now referred to as “issue estoppel [FN: The expression was coined by Higgins J in Hoysted v Federal Commissioner of Taxation [1921] HCA 56; (1921) 29 CLR 537 at 560-561; [1921] HCA 56]. Estoppel in that form operates to preclude the raising in a subsequent proceeding of an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment [FN: Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 at 510, 531-533; Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446 at 466-467]. The classic expression of the primary consequence of its operation is that a “judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies” [FN: Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 at 531. See also Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363 at 373 [21]]. The third form of estoppel is now most often referred to as “Anshun estoppel” [FN: After Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45], although it is still sometimes referred to as the “extended principle” in Henderson v Henderson [FN: [1843] EngR 917; (1843) 3 Hare 100 [67 ER 313]].. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim [FN: Eg Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589; Bryant v Commonwealth Bank of Australia[1995] FCA 1299; (1995) 57 FCR 287 at 297-298; Ling v Commonwealth [1996] FCA 1646; (1996) 68 FCR 180 at 184, 188, 193], or the raising of an issue of fact or law [FN: Hoysted v Federal Commissioner of Taxation [1925] UKPCHCA 3; (1925) 37 CLR 290; [1926] AC 155], if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding [FN: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 at 598, 602-603]. The extended form has been treated in Australia as a “true estoppel” [FN: Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251 at 275; [1994] HCA 42. See also Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 at 601-602, rejecting the approach in Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581 at 590] and not as a form of res judicata in the strict sense [FN: Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502 at 509, 512]. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument.
Other detailed examinations of these issues are set out in Blair v Curran (1939) 62 CLR 464; Carl-Zeiss-Stiftung v Rayner & Keeler Ltd (No. 2) [1967] 1 AC 853; and Murphy v Abi-Saab (1995) 37 NSWLR 280.
It was central to the determination by the County Court to decide which plaintiff should receive the benefit of the judgment. As a result, it appears that an estoppel arose in this case: not only was this a central element of the cause of action, but effectively, the subject of submissions as to the most appropriate form of judgment. As a result, this determination is binding even if another court were not in agreement with the determination: see Blair’s case at pp.531-2. This was the approach adopted in Milfoil Pty Ltd v Commonwealth Bank of Australia Ltd [2017] VSCA 256.
In the circumstances, I find that an issue estoppel arises in this case with respect to the identity of the correct judgment creditor for the purposes of the benefit of the order made in the County Court. The estoppel binds Statewide, Permanent, and the debtors in these proceedings.
However, an issue estoppel does not necessarily result in a finding that makes it inappropriate to look behind the judgment entered in the County Court for the purposes of the bankruptcy proceedings: see generally Wren v Mahony [1972] HCA 5; (1972) 126 CLR 212 and Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28.
I turn then to consider the argument that Statewide is not, in fact and law, the appropriate entity to receive the benefit of the judgment and that therefore I should exercise the discretion to look behind the County Court judgment and consider making a determination as to whether there is in ‘truth and reality’ a debt due to Statewide. That is, to use the words of Barwick CJ in Wren’s Case it is necessary to consider whether ‘reason is shown for questioning whether behind the judgment… there was in truth and reality a debt due to the petitioning creditor’: at 224.
The foundation for the argument raised by the debtors was the comments by the trial judge in the substantive judgment with respect to the case as originally put by senior counsel for the creditors, Statewide and Permanent. The learned County Court judge said:
129. Permanent should recover judgment: Mr Scott SC submitted that the judgment should be entered in favour of Permanent and not Statewide, as Permanent was the transferee or assignee of Statewide’s rights under the Mortgage and the guarantee. In final submissions, no argument was addressed to the contrary by Ms Kirton QC.
130. Accordingly, the following orders would seem appropriate:
1. The claim by the first plaintiff is dismissed.
2. Judgment for the second plaintiff against each of the second and third defendants for [a sum to be calculated by the parties in accordance with these reasons for judgment, or as ordered by the Court after hearing further submissions from the parties].
3. The second and third defendants must pay the plaintiffs’ costs of the proceeding including all reserved costs, to be assessed by the Costs Court on the basis of their legal costs as between a solicitor and own client in default of agreement.
131. I will not make any orders until the parties have had the opportunity to study these reasons, and if necessary, to make further submissions. (emphasis added)
In an earlier passage in his Honour’s judgment at [69], his Honour said:
69. In this proceeding, plaintiff’s senior counsel, Mr Shaw QC submitted that it was appropriate that judgment be entered in favour of Permanent, as the transferee of Statewide’s rights under the Mortgage and guarantee. Mr Shaw did not seek that judgment be entered on behalf of Statewide.
Whilst this was the position of Permanent and Statewide during the course of the trial, as the trial judge pointed out no argument was addressed to this issue by counsel for the debtors. It does not appear to me that this was an issue specifically ruled upon as an issue in dispute in the primary judgment delivered by his Honour. The primary judgment was focussed upon the substantive issues between the lenders (Statewide and Permanent) and the debtors, not which part of the overall debts were due to each of Statewide and Permanent.
It was only after hearing argument as to the form of the orders, that the matter proceeded to focus upon the Supreme Court judgment debt and whether it had been assigned, as this was relevant to the interest argument. The argument indicates that the parties all put that the judgment should be in favour of Statewide for the judgment debt to the extent it related to the earlier Supreme Court judgment. It was not put to the County Court judge that such a course was contrary to his Honour’s earlier reasons, nor was it opposed by the judgment debtors.
In the County Court case, both the plaintiffs (Statewide and Permanent) appear to have proceeded on the basis that the assignment clause did not result in the assignment of the Supreme Court judgment debt. In circumstances where both parties to a contract are agreed as to the meaning of a clause, it is difficult to see that it would be appropriate to give it an alternative meaning, which would subvert the mutual intention of the parties that gave rise to the agreement on which the contract is based (although, compare Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253 with respect to the trust deeds and wills). If necessary, it would be open to the parties to obtain an order for rectification to ensure that the words clearly reflect their joint understanding of the document. Of course, in circumstances where the parties are agreed as to the meaning of the terms and are acting upon that agreement, there is no purpose to be served in incurring the costs of applying to the court for rectification of the agreement.
In the circumstances of this case I am not persuaded that this particular agreement, as acted upon by the parties to it in the County Court proceedings, results in an assignment of the Supreme Court judgment to Permanent. As a result, the potential difficulty of whether or not to look behind the County Court judgment, in bankruptcy proceedings, does not arise.
However, should I be wrong with respect to the interpretation of the agreement, I will consider whether this court should look behind the County Court judgment. In the circumstances of this case, this is not simply an issue estoppel created by a determination of the court but rather is an estoppel that also arises as a result of the conduct of the parties in the litigation. The debtors, Statewide, and Permanent all accepted that the relevant debt was due to Statewide when arguing as to the form of judgment and interest.
Whilst the principles in Wren v Mahony admit of a bankruptcy court looking behind an issue estoppel (the result of a finding of a judge in other proceedings) the situation must necessarily be viewed differently where the estoppel arises not only as a result of the judgment, but also as a result of the conduct of the parties in the proceedings. Importantly, in this case, there is no basis for concluding that the monies are not owing to Statewide for any reason other than the technical point as to whether the debt was assigned from Statewide to Permanent, in circumstances where Permanent was a party to the proceedings where Statewide obtained the judgment. That is, the debt is owing to one of the two plaintiffs – the only issue is which plaintiff should receive the money. Even if Permanent had a contractual right to receive the benefit of the debt (as a result of the alleged assignment) it is now estopped from enforcing such a right. Thus there can be no practical injustice to the debtors who have been found liable to pay the debt.
It would not be appropriate to permit the debtors to argue in this court that the judgment should be in favour of Permanent, when before the County Court their case proceeded upon the basis that the judgment should be in favour of Statewide; at least not without any other fact or circumstances explaining their change of position.
I therefore decline to exercise the discretion to look behind the County Court judgment.
As a result the application to review the Registrar’s decision to make a sequestration order should be dismissed.
It is appropriate that costs follows the event and the costs of this application on the part of the judgment creditor be paid from the estate of the bankruptcy.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Date: 29 January 2018
Corrections
In paragraph 1 the sum awarded by the County Court of Victoria in favour of the applicant has been amended from $ 2,254,293.87 to $5,342,205.39.
In paragraph 1 the sum awarded by the County Court of Victoria in favour of Permanent has been amended from $5,342,205.39 to $ 2,254,299.87.
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