Thorne v Kennedy

[2017] HCATrans 54

[2017] HCATrans 054

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B62 of 2016

B e t w e e n -

THORNE

Applicant

and

KENNEDY

Respondent

Application for special leave to appeal

KEANE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 10 MARCH 2017, AT 10.20 AM

Copyright in the High Court of Australia

MR M.J. FOLEY:  Good morning, your Honours.  May it please the Court, I appear on behalf of the applicant with my learned friend, MR P.J. WOODS.  (instructed by Somerville Laundry Lomax)

MR R.G. LETHBRIDGE, SC:   May it please the Court, I appear with my learned friend, MS G.C. ELDERSHAW, for the respondents to the appeal.  (instructed by Jones Mitchell Lawyers)

KEANE J:   Mr Foley.

MR FOLEY:   May it please the Court.  The central question of this special leave application is whether the High Court should give authoritative guidance on the principles of law and equity for setting aside marital financial agreements allowed under the new Part VIIIA introduced by amendments to the Family Law Act in 2000.  The High Court has not previously given judgment on this question.

As to the matter of public importance, there are issues of law, equity and public policy and the controversy in the area has been summarised by Justice Paul Brereton of the New South Wales Supreme Court at page 46 of volume 23, No 2 of the Australian Family Lawyer, a 2012 article referred to in the application in these terms.

Part VIIIA represents an attempt to extend the doctrine of freedom of contract into matrimonial financial matters.  The current controversy over binding financial agreements largely reflects the longstanding tension between the common laws’ enthusiasm for the sanctity of freedom of contract and equity’s concern to prevent unconscientious misuse of bargaining power. 

EDELMAN J:   Mr Foley, I do not quite understand how ground 1 and ground 5 of your application really have anything to do with any of these points or any of the matters that you raise in your submissions. 

MR FOLEY:   Ground 1 is really an omnibus provision.  Grounds 2, 3 and 4 are the nub of it.  Ground 5 is there for the sake of completeness because the court – the intermediate appellate court found against the applicant on that point and it is necessary to dispose of it.

EDELMAN J:   But if you lost on grounds 2, 3 and 4, would ground 5 or ground 1 add anything to either of those – to those points?

MR FOLEY:   No. 

KEANE J:   But you need ground 5 to meet a basis on which the case was decided against you.

MR FOLEY:   Exactly.

KEANE J:   But you would not die in a ditch over ground 1?

MR FOLEY:   No.  I have quoted the relevant passage from Justice Brereton about the conflict between law and equity.

KEANE J:   Does not your argument need, as you probably foreshadow, really – but does it not need to focus on the considerations that affect the doctrines about unconscionable use of power or duress insofar as they affect agreements that bear upon the obligations that marriage creates in relation to support, mutual support and maintenance?

MR FOLEY:   Yes.

KEANE J:   What would you say about that?

MR FOLEY:   The first submission is that there is both a public policy in respect of the importance of supporting the marital relationship or, indeed, the spousal relationship also provided for under de facto provisions of the Family Law Act.  Secondly, in looking at that, one must revisit some of the presumptions set out, for example, by Sir Owen Dixon in some of the earlier cases and bring them in to touch with modern language and modern terms. 

Thirdly, we would submit that the doctrines that have developed to a large extent in this area out of bank guarantee cases and the like where there is a clear public policy importance of maintaining confidence in the banking system and the security of mortgages is not present, that the duty as between spouses in a marital relationship or even a de facto relationship is something which needs to be considered carefully – precisely because much of this area was simply not the subject of careful attention under the law of contract because it was contrary to public policy and void up until the provisions in 2000 in Queensland and really, from 2010 in the United Kingdom when the UK Supreme Court decided it. 

So put another way - I have quoted from Lord Atkins’ judgment in Hyman about the extent to which a court might intervene in a maintenance agreement case going back.  By analogy one would say ‑ ‑ ‑

KEANE J:   His Lordship identifies that public interest is very much engaged by the notion of mutual support between spouses, that one spouse could not be thrown on the community.

MR FOLEY:   Quite so, your Honour, quite so.  In that respect it is profoundly different public policy from the certainty needed, for example, in the banking guarantee cases and the mortgage cases.  That is the first proposition.  The second proposition – if I could draw an analogy with Lord Atkins’ observation in the law of tort as to what is the duty of a good neighbour in tort.

KEANE J:   Well, you probably should not go there ‑ ‑ ‑

MR FOLEY:   No.

KEANE J:    ‑ ‑ ‑because you are on higher ground, are you not, when you are dealing with a relationship which traditionally, in our law, has been regarded as necessarily founded on the notion of mutual support and maintenance.

MR FOLEY:   Exactly.  I was going to say that the doctrine of the good spouse might be the relevant doctrine as opposed to the doctrine of the good neighbour.  But your Honour expresses it more eloquently.

KEANE J:   The provisions of the Family Law Act that deal with the making and testing the validity of these prenuptial agreements, how are those provisions to be read, given the statutory context in which they operate?  They operate in relation to an Act that provides for maintenance and support – those obligations, themselves, being predicated upon the obligations inherent in the marriage relationship. 

On one view against you it might be said that contracts are contracts are contracts and the provisions relating to prenuptial agreements should be read in that light.  Do you say this case raises a question as to the inner section of the contractual views with the obligations peculiar to the marriage bond?

MR FOLEY: We do say that. We accept, needless to say, the proposition that such contracts must be determined in accordance with the principles of law and equity because section 90A of the Family Law Act says so.  But that really begs the question because it then raises the question what does “duress” mean in this context as opposed to a bank guarantee context?  What does “undue influence” mean in the case of prenuptial agreements, for the first agreement here?  Is it still governed by Yerkey v Jones?  What does it mean – “undue influence” – with respect to the second agreement with respect to what the High Court – to Yerkey v Jones but as affirmed by the High Court in Garcia’s Case which still left something of a question mark despite a very spirited dissent by Justice Kirby.  The further question ‑ ‑ ‑

EDELMAN J:   So your submission then is that the doctrines of duress or undue influence can somehow be different in this particular sphere irrespective of the Marriage Act, that the terms and the principles of the doctrines are somehow different in the marital or de facto context?

MR FOLEY:   No.  My submission is the principles are the same but their application in this context needs to be determined with care and should not be determined on the basis of reasoning by false analogy with the bank guarantee and related cases.  I must say that because the Parliament of Australia has said they are to be determined in accordance with the principles of law and equity.  But, if one takes, for example, the duress case ‑ ‑ ‑

EDELMAN J:   There is still the question of what is meant in section 90K(1)(e) of “conduct that was, in all the circumstances, unconscionable”.

MR FOLEY:   Yes.

EDELMAN J:   What is the doctrine which you say that is picking up?  Is it limited to the Amadio doctrine of unconscionable conduct?  

MR FOLEY:   The principles that are set out in the Amadio doctrine are the correct principles but they apply with even greater force because of the nature of the relationship between parties, because of the factors identified by his Honour Justice Keane in the course of discussion or argument a moment ago.  They take their character from a different context.  Just as case law develops out of factual context on which it is based, so these principles cannot be applied as a procrustean bed on which marital agreements are founded.

So take, for example, the question that arises in the law of duress as to whether there is no reasonable alternative.  Is that a valid – we say, a necessary component of the test of duress?  We say, on the facts of this case, in any event, there was no reasonable alternative in the proper understanding of her Honour’s findings of fact which I have summarised. 

I say that, but we also say, for example, that in that controversy about whether it is necessary for duress to apply, that there be an unlawful act or whether, to take Justice McHugh’s point, that it can be unconscionable conduct.  We favour the latter in regard to the circumstances.  Insofar as the unconscionability is concerned ‑ ‑ ‑

EDELMAN J:   But that is really the point which needs focus, is it not?  It is not just this is a standard application of principles of duress or unconscionable conduct or undue influence in the context particularly of marital relations.

MR FOLEY:   Yes.

EDELMAN J:   The point is that the principles concerning duress, such as lawful act duress or such as the nature of a reasonable alternative, those principles are unclear and these circumstances may require a focus upon how those principles operate.

MR FOLEY:   That is true, I respectfully submit.  Whether this is a vehicle for a comprehensive review of the principles governing duress, undue influence and unconscionability is a matter for the Court.  We submit, at the very least ‑ ‑ ‑

KEANE J:   But surely if you – to get leave you have to accept that that is what needs to be focused upon in the context of the marital relations.

MR FOLEY:   I do submit that.  I accept your Honour’s clarification on that point because this would apply, at the very least, to all marital financial agreements in Australia for which this case is now the binding doctrine.  It will have some impact, more generally, if the Court is minded to grant special leave, upon the proper understanding of those other doctrines. 

It is, in my respectful submission, an area that cries out for some guidance because most of these other areas where the law has grappled with unconscionable conduct, undue influence and duress have become the subject of legislation themselves – the Australian Consumer Law, codes of conduct under the old Trade Practices Act, now the competition and consumer legislation.  What the courts at first instance are faced with now is the proposition that one looks at these, as it were, from principles of law and equity undivided by any particular industry codes of conduct.

How does one reconcile, for example, the traditional presumptions that Sir Owen Dixon referred to in a modern world when one is dealing with prenuptial agreements which are now lawful pursuant to the Act.  These are not, with respect, easy questions.  What this case illustrates, in my respectful submission, very neatly, is the starkly different approach from the trial judge, her Honour Judge Demack, and the profoundly different approach – this is not a case of some error on a fine point. 

It is a particularly good vehicle, in my respectful submission, in view of the findings of fact that appear at paragraphs 91 to 93 of the trial judge’s reasons and which I recite.  It is difficult to contemplate a starker set of circumstances – no job, no home, no visa, her parents brought out from Romania.  Four days before the wedding she is put in the position of “sign the agreement, or the wedding is off”. 

That was found by the learned trial judge to be duress, indeed found to be so in response to submissions made by the respondent at the trial, applying the test that somehow or other that has become a ground of appeal against that judge’s findings.  It can be said, as it was, by that great Asian jurist, Chairman Mao, that power grows out of the barrel of a gun but it can also grow out of the impending big wedding in four days’ time where the force, whether described as duress, undue influence or unconscionable conduct, is so overwhelming that it cannot be resisted.

Now, these are areas in which, in my respectful submission, the High Court has a golden opportunity to deliver some guidance on these fundamental principles of law and equity that are otherwise just left.  So in this case, for example, the Full Court has taken the narrower of the views in respect of duress, has really not touched very much at all upon undue influence which on one view may be a subtler way of dealing with the facts of this case, and has not analysed the unconscionable conduct which is manifest by these parties having – or the respondent having organised the wedding, having got the parents of the applicant over from Romania, and on the brink of the wedding having informed the applicant that it was either sign it or there is no wedding.

That falls into the general presumption of undue influence, going back to Yerkey v Jones and Johnson v Buttress, but also it taints the second agreement.  This is another question to the extent to which that tainting occurs.  Pursuant to the first agreement, the applicant was obliged to agree to enter into the second agreement post‑marriage in similar terms.  It was a term of the first agreement. 

Now, the second agreement is not on its face tainted by the same presumption of undue influence – Yerkey v Jones and Johnson v Buttress – but it is effectively tainted because (a) nothing has changed; (b) the substantive terms are identical; and (c) the wife was obliged to enter into it.  It raises quite fundamental questions.  For example, the intermediate appellate court has made much of the fact that the wife did not focus upon the prospect of separation, but focused upon what would happen after the death, and in a sense she has been penalised for that and yet within the context of a marital agreement what was she doing?  She was acting on the plain words of the marriage vow – “Till death do us part”.

KEANE J:   And manifesting her commitment to it.  It might be said that she was naïve, but it is hardly a fault.

MR FOLEY:   Quite so, your Honour.  Not only justice is blind sometimes, but love can be blind.  It is interesting to read the dissenting judgment of the Lady Hale in that UK case where, although it is in the minority and it is not authoritative, she makes the point about one of the reasons - public policy behind the common law of rendering these void was to support and promote the concept of marriage and the institution of marriage and not to encourage the contemplation of separation.

Well, in a sense that doctrine is, as it were, turned on its head.  I mention that seeming paradox to illustrate the point to which your Honours have adverted, namely, that in construing the public importance of this as to whether special leave should be granted, the courts are dealing with a brave new world.  Since 2000, contracts are now capable of being made and being set aside.  The question is by what principles of law and equity should that be done?  Thank you, your Honours.

KEANE J:   Thanks, Mr Foley.  Yes, Mr Lethbridge.

MR LETHBRIDGE:   If the court pleases.  Your Honour, the principles under consideration of course apply outside only marital relationships.  They apply pursuant to Part VIIIA to those relationships.  They apply pursuant to Part VIIIAB to de facto relationships and indeed to relationships between parties of the same sex.

To answer the first proposition put by my learned friend, what are the principles of law and equity that should govern the court’s approach, the answer is a matter of policy and the policy, we would respectfully submit, has been determined by Parliament.  The policy is contained in section 90KA which provides that in consideration of prenuptial and ante‑nuptial agreements, the court will apply the law of contract and that is, with respect, the principles of law and equity that are applicable to validity of contracts.

EDELMAN J:   Well, even if that be accepted that this is effectively no more than colour or circumstances which provide the context in which those issues are being considered, are there not large issues such as whether lawful act duress is sufficient to set aside a contract, what is meant by the presumption of undue influence, whether the limited circumstances of a relationship is sufficient for setting aside a contract on the basis of undue influence or duress, what amounts to a sufficiently special disadvantage?

MR LETHBRIDGE:   In my submission, your Honour, those are matters which are the subject of well‑established principles.

EDELMAN J:   Well, take the first one, lawful act duress, admittedly we have not yet been referred to a lot of authorities on that but there is very limited authority in Australia on that point.  There is conflicting authority in England on the point.

MR LETHBRIDGE:   In my submission, your Honour, the answer lies - lawful act of duress flows from the decision of the New South Wales Supreme Court in ANZ Bank v Karam, that is, that the act must be one which is unlawful.

EDELMAN J:   Well, a different view was taken by the Privy Council in Attorney‑General v R.

MR LETHBRIDGE:   Indeed, your Honour, but in my submission ultimately the law in this jurisdiction has proceeded on the basis of the correctness of the determination in ANZ Bank and therefore this is, in effect, an endeavour to carve out a group to which it is said a special disability exists and, in my submission, that is a very difficult and open‑ended proposition and it would be one that would be ‑ ‑ ‑

EDELMAN J:   Why is there any less of a special disability in this case than there was in a case like Louth v Diprose or Bridgewater v Leahy?

MR LETHBRIDGE:   Your Honour, because when one enters into an agreement such as this, one does so subject to the provisions of section 90G which provide that prior to the entry into the agreement it is necessary that the parties to the agreement receive independent legal advice, both as to their rights and as to the advantages and disadvantages of entering into the agreement.

So that unlike contracts which are entered into without such advice, these are contracts which are entered into with the benefit of knowledge of what it would be in the – I withdraw that – what the advantages would be if in fact the contract was not entered into and the law with respect to the rights of the parties pursuant to the Act generally - sections 79 and 75 - 74, 75(2) were in play.  So that, unlike any other form of contract under consideration in the cases your Honour refers to, this is a contract which is entered into with the benefit of prior legal advice as to what the consequences would be in the event, for example, that the marriage broke down and there was no contract.

EDELMAN J:   But in the application of the principles of law and equity to which section 90KA refers, do you say that legal advice or even required legal advice under the Act would always effectively be destructive of any action or equity based upon undue influence or an unconscionable conduct?

MR LETHBRIDGE:   Yes, your Honour, in the sense that it removes the parties from the category of any special disadvantage.

EDELMAN J:   Do you have any authority for that proposition that the provision of legal advice will always remove a special disadvantage or undue influence or duress?

MR LETHBRIDGE:   No, I do not, but what I put to your Honour is that that is the consequence of the plain reading of the manner in which these agreements are required to be entered into because the Act itself provides that an agreement will be binding provided the provisions of section 90G are complied with and 90G provides - section 90G(1)(b) that:

before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement ‑ ‑ ‑

KEANE J:   So, it is a necessary but not necessarily sufficient basis for validity?

MR LETHBRIDGE:   That is so, but sufficiency has been dealt with in a line of cases in the Court which have considered the circumstances in which legal advice has been challenged as being inadequate or in fact amounting to no legal advice at all.

KEANE J:   Of course it says nothing about the case where the problem is not that the party challenging the agreement fully understands the issues or fully understands the effect of the agreement, but nevertheless is constrained by the exercise of power said to be unconscionable by the other party.  These provisions are directed to ensuring that the parties know what they are doing.  They cannot guarantee that there has not been the unconscionable exercise of a superiority of bargaining power by one of the parties.

MR LETHBRIDGE:   They cannot guarantee that, your Honour, but the law as it stands, we would contend, with respect to those matters deals with that and deals with that adequately, and that is the purpose and import of section 90KA.

KEANE J:   In relation to that, can I just ask you, do you say, as Mr Foley says, the Full Court in this case has said that so far as the operation of these principles of unconscionability, duress, undue influence are concerned, in the provisions relating to these agreements in the Act, that there is nothing special about marriage; there is nothing special about the context in which they are required to operate?

MR LETHBRIDGE:   There is nothing special per se about marriage, nor indeed, your Honour, could there be said to be, because the provisions of these agreements operate to relationships which are not marriages.  They operate to, with respect, personal relationships, if I could a term, of an intimate nature and there is a real danger in seeking to characterise the proposition as one dealing with marriages as opposed to a collage of relationships, perhaps the defining feature of which is that they might be described as intimate.  But then again, if one is to talk about intimate relationships generally, there is an intimacy in a relationship, for example, between a parent and a child, between an adult son and an aged mother.

EDELMAN J:   But there remain very large policy questions about the interrelationship in these circumstances between the principles governing the setting aside of commercial contracts and the setting aside of contracts in these intimate relationships.

MR LETHBRIDGE:   In our submission, those policy determinants have been dealt with by the Parliament in the Act itself, in KA, and it is in our submission respectfully a matter – it is a policy matter for Parliament rather than for this Court to go behind the words of the Act, so that we come to the proposition of ‑ ‑ ‑

EDELMAN J:   Well, it is a bit circular though, because Parliament has said that the courts are to apply the principles of law and equity and there is a question as to, within the principles of law and equity, how one takes into account in light of the policy of the Act – how one takes into account the particular circumstance of intimate relationships compared with, for example, commercial contracts.

MR LETHBRIDGE:   In my submission, the characterisation of the question, your Honour, is this.  The Family Law Act, generally speaking, sections 79, 74, relating to maintenance and to property settlement, set out a policy which is a policy determinative of the manner in which a judicial determination will be made in the event that a marriage breaks down. 

The policy behind section – Part VIIIA is to facilitate parties to move outside the principles of the Act applicable if a judicial determination is necessary and to, as parties, freely contract, and that is, your Honour, clear from, we would submit respectfully, the explanatory memorandum. 

That made plain that the intent of Parliament was to enable parties to contract, and if they contracted subject to the provisions of the Act, that is, the provisions of section 90G, the requirements for independent legal advice - the requirements for certificates of such advice and so forth – then the contract was to be treated no differently from any other contract between parties, so that the character of the contract being one which governs the rights of parties living in a marital‑style relationship is not a special factor and certainly, we would contend, does not give rise to a special disability.

If I could, your Honours, move on.  In our submission, this is not a case which raises the question of the interests of the administration of justice generally.  This is a case where, for the reasons I have outlined, and, we would respectfully submit, correctly, the Full Court has applied the general principles of law and equity, and to embark upon a reconsideration of those based upon a view that there was a policy necessary to be determined because of the nature of the relationship would be an error and stepping into, respectfully, a matter for Parliament. 

If Parliament had intended that these arrangements where issues such as unconscionability, undue influence or duress were to be considered, were to be considered with a different characteristic, then in my submission that is something that would appear from the legislation itself.

KEANE J:   Except that they were provided in relation to a relationship which necessarily involves mutual support and maintenance. 

MR LETHBRIDGE:   The provisions for mutual support and maintenance are governed, in my submission, by the provisions of section 74.

KEANE J:   Quite, quite, but those provisions themselves which operate on dissolution – those provisions operate on dissolution but they are predicated upon the marriage relationship which for centuries has recognised as one of its fundamental elements the obligations of mutual support - “With all my worldly goods I thee endow”, except that now we do not endow anybody with anything apparently.

MR LETHBRIDGE:   No, and other characteristics and types of relationships may well be covered by the generic term “marital relationship” but that is the very essence of the intention of Parliament by the amendments in 2000 and that was to take the Act which includes, as your Honour says, provisions to determine an appropriate property settlement and appropriate regime and, indeed, as to maintenance and support, for example, that is in a very limited characteristic, if and only if one is unable adequately to support oneself by reason of a series of particular characteristics.

KEANE J:   In relation to that, there is no suggestion, is there, that these agreements which provided for the wife to get $50,000 after three years should the relationship break up then, there is nothing to suggest that that was somehow calculated to reflect a genuinely held view of what would be sufficient to support her in her circumstances in that event.

MR LETHBRIDGE:   That is so, your Honour, and that is so and, indeed, that is the intent if I can put it that way, of the provisions which were brought into effect in 2000, namely, to enable people to contract in a manner which they chose which might be entirely different from and, indeed, in this case, as your Honour quite correctly says, in respect of the separation provisions was, but what the intent of the amendments is is to enable people to do that, to do that very thing and to do that very thing without necessarily having regard to what it is that they might achieve and, in fact, your Honours will find that clearly the intent from the provisions of section 90G where a party must be advised of the advantages and disadvantages and, indeed, their rights.  The rights are the rights they are giving up if they enter into the agreement, namely what in the normal course they would receive. 

But this is a case where while on the one hand, as your Honour correctly says, the provisions in the event of a breakdown were not, in retrospect, what the applicant wanted but she did get what she wanted with respect to the testamentary provisions.  Her focus, as your Honours will see from the judgment, was entirely upon the testamentary provisions.  She was unconcerned and the court, at first instance, found that she was unconcerned with respect to the provisions on breakdown. 

In our submission it is, and it would be inappropriate for a party who enters into an agreement where a term in that agreement is one for which she is unconcerned to subsequently, when the matter turns out in a fashion that she does not intend, come back and complain about that particular agreement.  It would be tantamount to saying that a party who was unconcerned at the time the agreement was entered into as to the wealth of the other party could then at a later date complain that the wealth was greater than he or she anticipated. 

So this is a case where the applicant, in fact, got the bargain that she, indeed, wanted and as to the balance of the bargain it can be put from a respondent’s perspective that she was unconcerned about it.  Therefore, it cannot have exercised her mind in terms of any matter of compulsion or duress or, indeed, unconscionability because she simply was not concerned about it.  That is the finding at trial.

EDELMAN J:   That is a causation question, then, is it not?

MR LETHBRIDGE:   Yes, but it raises the issue, in my submission, respectfully, your Honour, that it is, as it were, at the heel of the hunt that this becomes an issue and it must go to the question of whether in the circumstances of this particular case the appropriate finding was not made.  So that, in our submission, this is not a vehicle and, indeed, there is no

public interest in as described the need to make rules that deal, for example, with internet marital arrangements. 

It is, in our submission, something that pursuant to the requirements – pursuant to which these agreements are entered into, the issue of any unfairness in the bargain or inappropriateness in the bargain or, indeed, the fact that it is entered into at all is dealt with and parties should be free as the legislation intends to contract in any manner that they wish even to their disadvantage and this, of course, is a bargain which the trial judge found the witness understood to be the worst agreement I have ever seen, do not sign it.  Those are our submissions, your Honour.

KEANE J:   Thank you, Mr Lethbridge.  There will be a grant of special leave in this matter.  The grant will be limited to grounds 2 to 5 in the further amended application.  Mr Foley, obviously it will be apparent from the exchanges we have had this morning that the argument will need to be more focused perhaps than it has been in the application.

MR FOLEY:   Yes, your Honour.

KEANE J:   The parties should collect from the Deputy Registrar directions in relation to the filing of written submissions and the further steps necessary to bring the matter to a hearing.  Mr Foley, how long do you think the oral argument will take?

MR FOLEY:   I would think half a day, your Honour.

KEANE J:   Mr Lethbridge.

MR LETHBRIDGE:   I would think for the respondent at least several hours, your Honour. 

KEANE J:   So the matter would conclude in a day?

MR LETHBRIDGE:   I would anticipate so, your Honour.

KEANE J:   Very well.  There will be a grant of special leave in this matter.  The Court will now adjourn until 10.15 am on Tuesday, 28 March in Canberra.

AT 11.05 AM THE MATTER WAS CONCLUDED