Verge & Anor v Devere Holdings Pty Ltd & Ors
[2008] FMCA 591
•9 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VERGE & ANOR v DEVERE HOLDINGS PTY LTD & ORS | [2008] FMCA 591 |
| BANKRUPTCY − Transfer of property at alleged undervalue. PRACTICE AND PROCEDURE − Application to strike out defence – application for particulars of defence – application for leave to amend defence and amend response to particulars. |
| Bankruptcy Act, 1966 (Cth) s.120(1) |
| American Flange & Manufacturing Co Inc v Rheem Australia Pty Ltd (1963) 80 WN (NSW) 1294 Dare v Pulham (1982) 148 CLR 658 Rana v University of South Australia (2004) 136 FCR 344; [2004] FCA 559 State of Queensland v Pioneer Concrete(Qld) Pty Ltd (1999) ATPR 41-691; [1999] FAC 499 Sutherland v Brien (1999) 149 FLR 321; [1999] NSWSC 155 Victorian Producers’ Co-Operative Co Ltd v Kenneth (1999) 1 ABC (NS) 198; [1999] FCA 1488 |
| Applicants: | EVAN ROBERT VERGE & GEORGE AUBREY LOPEZ |
| First Respondent: | DEVERE HOLDINGS PTY LTD |
| Second Respondent: Third Respondent: | PACKHAM PTY LTD CASTLEWORLD PTY LTD |
| File Number: | PEG 64 of 2007 |
| Judgment of: | Lucev FM |
| Hearing date: | 23 April 2008 |
| Date of Last Submission: | 23 April 2008 |
| Delivered at: | Perth |
| Delivered on: | 9 May 2008 |
REPRESENTATION
| Counsel for the Applicants: | Ms P E Cahill |
| Solicitors for the Applicant: | Jackson McDonald |
| Counsel for the First and Second Respondents: | Mr D H Solomon and Mr C S Williams |
Solicitors for the First and
Second Respondents: Solomon Brothers
| Counsel for the Third Respondent: | Mr G Flynn |
Solicitors for the Third
Respondent: Hotchkin Hanley
ORDERS
The First and Second Respondents provide further and better particulars of:
(a)paragraph 5 of the Proposed Amended Defence (previously paragraph 5 of the Defence);
(b)paragraphs 10.6 and 10.7 of the Proposed Amended Defence (previously paragraphs 10.5 and 10.6 of the Defence),
as requested in Questions 1, 4 and 5 of the Applicants’ Request for Further and Better Particulars of the Defence of the First and Second Respondents filed 29 November 2007, and file an Amended Response to the Applicants’ Request for Further and Better Particulars by 4.00pm on 23 May 2008.
The Applicants’ application to strike out paragraphs 10.5, 10.6 and 10.7 of the Proposed Amended Defence (previously paragraphs 10.4, 10.5 and 10.6 of the Defence) be dismissed.
The First and Second Respondents have leave to amend their Defence in terms of the Minute of Proposed Amended Defence annexed to the First and Second Respondents’ Application in a Case filed on 3 April 2008, subject to the word “denied” in paragraph 10.4 being deleted and replaced with the words “not admitted”.
The First and Second Respondents’ application for leave to file an Amended Response to Applicants’ Request for Further and Better Particulars of the Defence of the First and Second Respondents in terms of the Minute of Proposed Amended Response to Applicants’ Request for Further and Better Particulars of the Defence of the First and Second Respondents filed on 3 April 2008 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 64 of 2007
| EVAN ROBERT VERGE & GEORGE AUBREY LOPEZ |
Applicants
And
| DEVERE HOLDINGS PTY LTD |
First Respondent
PACKHAM PTY LTD
Second Respondent
CASTLEWORLD PTY LTD
Third Respondent
REASONS FOR JUDGMENT
Application in a case
There are two applications in a case to be determined by the Court. They are:
a)an application made by the Applicants for orders:
i)requiring the First and Second Respondents to provide further and better particular of paragraphs 5, 10.5 and 10.6 of their Defence; and
ii)striking out paragraphs 10.4, 10.5 and 10.6 of the First and Second Respondents’ Defence;[1]
b)an application made by the First and Second Respondents for orders granting the First and Second Respondents’ leave to amend their Defence and their response to the Applicant’s request for further and better particulars of the Defence in the form of a minute of Proposed Amended Defence and a minute of Proposed Amended Response to Applicants’ request for further and better particulars.[2]
[1] Paragraphs 10.4-10.6 of the Defence are now paragraphs 10.5-10.7 of the Proposed Amended Defence referred to hereunder.
[2] “Proposed Amended Defence” and “Proposed Amended Response” respectively.
Applications involving the Third Respondent, namely an application by the Applicants for further and better particulars of paragraph 8 of the Third Respondent’s Defence, and an application by the Third Respondent for a separate decision on questions relating to the application as between the Applicants and Third Defendant were adjourned on 23 April 2008 to be heard on 9 May 2008.
Substantive application
The substantive application is one in which the Applicants allege that there has been a transfer of land at under value involving two former bankrupts (Mr and Mrs Andony), and that under s.120(1) of the Bankruptcy Act, 1966 (Cth)[3] that that transfer is void against the Applicants as the trustees of the bankrupts’ estates.
[3] “Bankruptcy Act”.
The Application was commenced by way of an application and affidavit, but the matter is now proceeding on pleadings with the Applicants having filed an Amended Application and a Statement of Claim. The First and Second Respondents filed a Response, and presently have before the Court the applications for leave to amend the Proposed Amended Defence and Proposed Amended Response.
Applicants’ application in a case
Failure to provide particulars of paragraph 5 of the First and Second Respondents’ Defence
Paragraph 5 of the Proposed Amended Defence (which is in the same terms as the Defence originally filed) provides as follows:
“As to paragraph 18 of the [Statement of Claim], the First and Second Respondents deny the matters pleaded and say that the Andonys sold their one undivided third share of the Dongara Land to Devere for the consideration comprised in the benefits accruing to them under and pursuant to the First Agreement alternatively November 2000 Agreement.”
Paragraph 18 of the Statement of Claim provides as follows:
“Devere gave, at the most, $45,000.00 as consideration for the transfer of the Andonys’ one undivided third share of the Dongara Land to Devere.”
Paragraph 18 of the Statement of Claim is one of a number of paragraphs by reason of which it is asserted that the transfer by the Andonys to Devere (the First Respondent) of their one undivided third share of the Dongara Land is void against the trustees. The Statement of Claim deals with the appointment of the trustees and the bankruptcy of the Andonys in paragraphs 1-5, the registered proprietorship of the Dongara Land in paragraphs 9 and 10, the express consideration for the transfer of the Andonys’ one undivided third share of the Dongara Land to Devere in April 2001 at paragraph 17 and the market value of the land (alleged to be not less than $710,000.00, therefore valuing the Andony’s undivided one third share at not less than $236,666.00) at paragraph 19. It is the above paragraphs of the Statement of Claim, together with paragraph 18, which are relied upon in paragraph 20 for the plea that the transfer is void against the trustees under s.120(1) of the Bankrupty Act.
The particulars sought by the Applicants of paragraph 5 of the Proposed Amended Defence are as follows:
“1.As to paragraph 5 of the defence give full particulars of all the benefits alleged to have accrued to each of Mr Andony and Mrs Andony under and pursuant to
(a) the First Agreement;
(b) the November 2000 Agreement,
by identifying in respect of each and every benefit:
(c) the nature of the benefit;
(d) the monetary value of the benefit;
(e)when and how the benefit was accrued to each of Mr Andony and Mrs Andony;
(f) by who the benefit was provided.”
The First and Second Respondents’ answer to the request for particulars of paragraph 5 of the Proposed Amended Defence is as follows:
“1. The benefits that accrued to Mr and Mrs Andony were:
(a) under the First Agreement:
(i) the sum of $45,000;
(ii) 1,111,111 shares in Devere;
(iii) the provision of a loan in the sum of $180,000;
(iv)the release from liability to Packham [the Second Respondent] in respect of moneys expended by Packham for their benefit;
(v)the release from any liability or obligations under the November 2000 Agreement; and
(vi)the entry into of [sic] the shareholders agreement undated but stamped 10 June 2004 and the loan agreements undated but stamped 10 June 2004
(b) under the November 2000 Agreement:
(i)801,111 shares in Devere.
(c)Otherwise, the first and second respondents object to answering the request on the grounds that the request is not a proper request for particulars in that:
(i)it seeks particulars of matters not pleaded. Paragraph 5 of the defence pleads, in answer to the allegation pleaded in paragraph 18 of the statement of claim that the first respondent gave, at the most, $45,000 as consideration for the transfer of the Andonys’ one undivided third share of the Dongara Land to Devere, that the share was sold for the consideration comprised in the benefits accruing to the Andonys under and pursuant to the First Agreement alternatively the November 2000 Agreement. The applicants do not plead, in the alternative or otherwise, that the consideration was other than $45,000. The defence to the allegation made in paragraph 18 is simply that the consideration was other than $45,000. If this established, this is a complete defence to the claim, even without any consideration of the value of the benefits;
(ii) it seeks evidence; and/or
(iii)it is not necessary to be answered to define or confine the issues or to fairly inform the applicants of the case they have to meet at trial.”
The Applicants say that the nature, monetary value and by whom the alleged benefits referred to in paragraph 5 of the Defence were provided are essential to understanding the nature and scope of the First and Second Respondents’ Defence to the allegation that the land was transferred at an undervalue. The Applicants say that further particulars, as follows, are required:
a)the monetary value of the share in Devere;
b)who allegedly provided a loan in the sum of $180,000.00, to whom and on what terms;
c)how the alleged liability to Packham arose and the monetary value of that liability;
d)further, the amount of money allegedly expended by Packham for the bankrupt’s benefit, when and in respect of what;
e)who granted the release to the bankrupts in respect of the liability to Packham and on what terms;
f)the alleged liability/obligations of the bankrupts pursuant to the November 2000 Agreement and the monetary value of the liability/obligations;
g)who granted the release to the bankrupts in respect of the November 2000 Agreement and on what terms;
h)the nature and monetary value of the consideration given by the First Respondent pursuant to the shareholders agreement stamped 10 June 2004;
i)the nature and monetary value of the consideration given by the First Respondent pursuant to the loan agreements stamped 10 June 2004;
j)the nature and monetary value of the consideration given by the Second Respondent pursuant to the shareholders agreement stamped 10 June 2004;
k)the nature and monetary value of the consideration given by the Second Respondent pursuant to the loan agreements stamped 10 June 2004.
The First and Second Respondents say that paragraph 5 of the Proposed Amended Defence makes a simple allegation that the Andonys sold their share of the Dongara Land to Devere for the consideration comprised in the benefits accruing to them under the two pleaded agreements. They say that if that plea is made out the allegation in paragraph 18 of the Statement of Claim is not established. Therefore, it follows, say the First and Second Respondents, that it is not necessary for the matters the subject of the request for particulars of paragraph 5 to be established by the First and Second Respondents in order for paragraph 5 of the Proposed Amended Defence to be made out. Hence, to require further particulars is to allow the Applicants to raise false issues.
The First and Second Respondents also say that paragraph 5 of the Proposed Amended Defence does not make an allegation as to the monetary value of the benefits, the relationship between the monetary value of the benefits and the market value of the Andonys’ interest in the Dongara Land or when and how the Andonys actually received any of the benefits that accrued to them under each of the agreements. Rather it is simply pleaded that the consideration for the transfer was not (as pleaded in paragraph 18 of the Statement of Claim) the mere sum of $45,000.00, but that other benefits were received by the Andonys and that full particulars of those benefits have been provided.
The First and Second Respondents further say that the Applicants, if they assert that the benefits accruing to the Andonys under the two agreements constituted the consideration for the transfer of the Andonys interest in the Dongara Land and that that still constituted less than market value, ought to amend their Statement of Claim, and then allege that the monetary value of the benefits accruing to the Andonys under the two agreements were less than the market value of the Andonys’ interest in the Dongara Land. The Respondents say that the existing request for particulars is an attempt to reverse the onus of proof of the elements of s.120(1) of the Bankruptcy Act.
Bankruptcy Act provisions
Section 120(1) of the Bankrupty Act relevantly provides as follows:
“A transfer of property by a person who later becomes a bankrupt (the transferor) to another person (the transferee) is void against the trustee in the transferor’s bankruptcy if:
(a) the transfer took place in the period beginning five years before the commencement of the bankruptcy and ending on the date of the bankruptcy;
(b) the transferee gave no consideration to the transfer or gave consideration of less value than the market value of the property.”
In relation to s.120(1) of the Bankrupty Act it is relevant that “the court is required to assess the value of the consideration given.”[4] Section 120(1)(b) requires the Court to identify the consideration actually given by the transferee, rather than the consideration which might have been given but was not in fact given.[5] It must be remembered also that actions in bankruptcy are not necessarily strictly inter partes, but often actions for the benefit of creditors as a whole, and in that regard actions with an element of public and community benefit and interest.
[4] Victorian Producers’ Co-Operative Co Ltd v Kenneth (1999) 1 ABC (NS) 198 at 201 per Merkel J; [1999] FCA 1488 at para. 11 per Merkel J.
[5] Sutherland v Brien (1999) 149 FLR 321 at 327 per Austin J; [1999] NSWSC 155 at para. 21 per Austin J; Victorian Producers’ Co-Operative ABC at 202 per Merkel J; FCA at para. 18 per Merkel J.
It is that legislative context, and in particular the requirement for the Court to identify whether the particular transfer has been at an undervalue, that sets the broader context for consideration of the application for particulars in this case.
Case management
The Respondent submits that the request for particulars ought to be strictly construed in a case management context, particularly having regard for the fact that this Court is generally not a court which requires pleadings and is intended to be a court which operates at low cost with few interlocutory processes available.[6] Whilst those observations are generally true, it is nevertheless the case that the FMC Rules have, quite recently, been specifically amended to specifically allow cases to be commenced and continued on pleadings, and in this case the parties agree that the matter ought to be continued on pleadings, although originally commenced by application. Furthermore, the FMC Rules do provide for the provision of particulars and particulars have been provided in this case. Whilst the objects of the FM Act and FMC Rules encourage the Court to operate as informally and efficiently and expeditiously as possible in the exercise of the judicial power of the Commonwealth, it remains the case that the proper exercise of judicial power necessitates the proper consideration of applications (including applications for particulars) in the context of the case and the relevant legislation. There is no doubt that the case is a relatively complex one, and having been continued on pleadings, and some particulars having already been provided, it is now no answer to a request for further and better particulars to make general assertions about the nature and role of the court and the lack of interlocutory processes available to the Court.
[6] Rana v University of South Australia (2004) 136 FCR 344 at 355 per Lander J; [2004] FCA 559 at para. 75 per Lander J.
In the circumstances of this case, it is appropriate that proper particulars be provided. That naturally begs the question!
The function of particulars
In cases where there are particulars due particularity by all parties is necessary. A defence, no less than a statement of claim, is subject to the requirement to provide particulars.[7]
[7] B C Cairns, Australian Civil Procedure (4th Ed) (Sydney: Law Book Company, 1996) p.187.
Put succinctly the function of particulars is to enable a party to:
a)know each material fact relied on by the other party;
b)properly prepare a brief; and
c)not be taken by surprise.[8]
[8] Dare v Pulham (1982) 148 CLR 658 at 664 per Murphy, Wilson, Brennan, Deane and Dawson JJ.
Only material allegations need to be particularised: but the degree of particularity depends on common sense and the circumstances of the case.[9]
[9] American Flange & Manufacturing Co Inc v Rheem Australia Pty Ltd (1963) 80 WN (NSW) 1294 at 1298.
The primary function of particulars has been summarised as being to ensure that effect is given to the overriding principle that litigation between the parties, and particularly the trial, should be conducted fairly, openly and without surprises and incidentally to reduce costs.[10]
[10] State of Queensland v Pioneer Concrete(Qld) Pty Ltd (1999) ATPR 41-691 at 42, 827 per Drummond J; [1999] FAC 499 at para. 12 per Drummond J.
Application to paragraph 5 of the Proposed Amended Defence
Paragraph 5 of the Proposed Amended Defence puts in issue a number of matters relevant to the Andony’s sale of their one undivided third share of the Dongara Land to Devere. Those issues include the “consideration” for the sale, what that consideration “comprised”, the “benefits” comprising the consideration, and the “benefits accruing” under both the “First Agreement”, alternatively the “November 2000 Agrement”.
Having put these matters in issue by pleading them as material facts the First and Second Respondent must fully particularise these matters if the hearing is to be conducted fairly, openly and without surprise. It is too simplistic to argue that because the Applicants have asserted that the consideration is $45,000.00, that if the First and Second Respondent can prove that consideration is something other than $45,000.00 then the Applicant’s case fails. The Applicants, as the trustees of the bankrupt’s estate (and ultimately for the benefit of the creditors), are entitled to succeed if the transfer was at an undervalue. Paragraph 5 puts that in issue, by reason particularly of the nature of the “consideration” and “benefits accruing” under the two agreements which go to the nature and quantum of the value provided to the Andonys for their one undivided third share of the Dongara Land. It may be that the particulars will satisfy the trustees that full value was provided. If that is so, the litigation might be brought to a quick end. Alternatively, the particulars may still disclose an undervalue, but a different undervalue. Doubtless if that is the case the trustees will amend accordingly. In any event, the particulars are required because it is of the essence of this section of the Bankruptcy Act for the Court to be put in a position to assess the value of the transaction. The particulars of paragraph 5 of the Proposed Amended Defence presently provided by the First and Second Respondents do not put the Court (or the Applicants) in a position to assess what the First and Second Respondents say was the value attributable to the transaction constituting the transfer. This does not constitute a reversal of the onus of proof, simply the provision of proper particulars of the transaction on the basis of the material facts put in issue by paragraph 5 of the Proposed Amended Defence.
For those reasons, there will be an order that the First and Second Respondents provide further and better particulars of paragraph 5 of their Proposed Amended Defence.
Strike out of paragraphs 10.4 to 10.6 of First and Second Respondents’ Defence
There is a positive assertion in paragraphs 41 to 43 of the Statement of Claim that Mrs Andony did not execute the Second Agreement or the share transfer form, nor authorise any person to do so on her behalf, nor agree nor consent to the transfer of her joint shareholding in Devere to Packham, or to anyone else. Those allegations are not admitted by the First and Second Respondents in paragraph 1 of the Proposed Amended Defence.
The Applicant says that paragraphs 10.4 to 10.6 of the Proposed Amended Defence imply, without specifically alleging, that the relevant documents may have been executed by Mr Andony on behalf of Mrs Andony and with her authority, and therefore the Proposed Amended Defence is embarrassing in this respect.
The Applicant says that paragraph 10.4 of the Proposed Amended Defence which provides expressly that the documents were executed by Mr Andony on behalf of Mrs Andony and with her authority is inconsistent with the non-admission in paragraph 1 of the Proposed Amended Defence. Further, that no particulars are given of the alleged execution of the documents or the nature of the authority given to Mr Andony by Mrs Andony.
The First and Second Respondents say that the complaints about paragraphs 10.4 to 10.6 of the Proposed Amended Defence fall away because of the terms of paragraph 10.4 of the Proposed Amended Defence, and that any inconsistency can be addressed by replacing the word “denied” in paragraph 10.4 with the words “not admitted” thereby rendering paragraphs 10.4 and paragraph 1 of the Proposed Amended Defence consistent, and not embarrassing.
The First and Second Respondents also say that no particulars of paragraph 10.4 of the Proposed Amended Defence have ever been requested.
The inconsistency between paragraphs 10.4 and paragraph 1 of the Proposed Amended Defence can be cured by replacing the word “denied” in paragraph 10.4 with the words “not admitted”.
The Court notes that no particulars are given of the alleged execution of the documents or the nature of the authority given to Mr Andony by Mrs Andony. Proper particulars ought to be provided. The Court does not propose to deal with this issue further at this time. Hopefully it will not have to deal with it in future.
The application for paragraphs 10.4 to 10.6 of the Proposed Amended Defence to be struck out will be dismissed.
Failure to provide particulars of paragraphs 10.5 and 10.6 of First and Second Respondents’ Defence
The Applicants sought particulars of paragraph 10.5 as follows:
“4. As to sub-paragraph 10.5 of the defence give full particulars of:
(a)Each and every obligation under the deed dated 1 April 2003 that were allegedly performed by or on behalf of the second respondent;
(b)When, where and how each such obligation was allegedly performed;
(c)The nature and monetary value of each benefit conferred upon Mrs Andony by the performance of those obligations;
(d)The amount of the loan funds borrowed jointly by Mr Andony and Mrs Andony from the second respondent;
(e)When those loan funds were borrowed;
(f)The amount of the liability Mrs Andony allegedly had to the second respondent in respect of those loan funds at the date the second respondent became the registered holder of the joint shares;
(g)When and how that liability was allegedly discharged;
(h)The conduct of Mr Andony that Mrs Andony is alleged to have ratified;
(i)The acts of Mrs Andony relied upon by the first and second respondents to support the allegation that Mrs Andony ratified the conduct of Mrs Andony.”
The First and Second Respondents responded as follows:
“(a)The obligations of the second respondent under the Deed dated 1 April 2003 were to release Mr and Mrs Andony from their debts to Packham and Packham’s right to be issued with an additional 508,000 shares in Devere.
(b)The obligation was performed by Packham registering the share transfer forms and thereby releasing Mr and Mrs Andony.
(c)The amount of loan funds borrowed jointly by Mr and Mrs Andony was not less than $508,000.
(d)If, which is denied, Mrs Andony did not execute the Second Agreement or the share transfer form, the conduct that Mrs Andony ratified was Mr Andony’s execution of the Second Agreement and signing of the share transfer form.
(e)The acts of Mrs Andony relied on to support the ratification are her acceptance of the benefits conferred on her by the Second Agreement, including her failure to repay any or all of the loan funds borrowed from Packham and her failure to disclose any liability to Packham in her statement of affairs dated 5 November 2005.
(f)Otherwise, Devere and Packham object to answering the request on the grounds that the request is not a proper request for particulars in that:
(i)it seeks evidence; and/or
(ii)it is not necessary to be answered to define or confine the issues or to fairly inform the applicants of the case they are to meet at trial.”
The Applicant sought particulars of paragraph 10.6 of the Proposed Amended Defence as follows:
“5. As to sub-paragraph 10.6 give full particulars of:
(a)Each and every obligation under the deed dated 1 April 2003 that was allegedly performed by or on behalf of the second respondent;
(b)When, where and how each such obligation was allegedly performed;
(c)The nature and monetary value of each benefit conferred upon Mrs Andony by the performance of those obligations;
(d)The facts relied upon to support the essential elements of the plea that Mrs Andony is estopped vis a vis the first and second respondents from denying that Mr Andony acted as her agent with her authority as alleged.”
The First and Second Respondents answered as follows:
“(a)Devere and Packham repeat paragraphs (a) to (c) of answer 4 above.[See paragraph 35 above].
(b)Otherwise, Devere and Packham object to answering the request on the grounds that the request is not a proper request for particulars in that:
(i)it seeks evidence; and/or
(ii)it is not necessary to be answered to define or confine the issues or to fairly inform the applicants of the case they are to meet at trial.”
The reasons set out above in relation to the failure to properly particularise paragraph 5 of the Proposed Amended Defence apply, mutatis mutandus, to paragraphs 10.6 and 10.7 of the Proposed Amended Defence (previously paragraphs 10.5 and 10.6 of the Defence). Once again, matters put in issue by the Proposed Amended Defence have not been properly or fully particularised, and, in the context of this action, and the provisions of s.120(1) of the Bankruptcy Act and the Court’s role in relation to that section, proper particulars ought to be provided by the First and Second Respondent.
There will be an order that further and better particulars of paragraphs 10.6 and 10.7 of the Proposed Amended Defence be provided to the Applicants.
First and Second Respondents application in a case
Proposed amended defence
For the reasons set out above the First and Second Respondents will be granted leave to amend their Defence and file the Proposed Amended Defence annexed to the First and Second Respondents’ Application in a Case filed on 3 April 2008, subject to the word “denied” in paragraph 10.4 of the Proposed Amended Defence being deleted and replaced with the words “not admitted”.
Proposed amended response to Applicants’ request for further and better particulars
For the reasons set out above the First and Second Respondents will be required to provide further and better particulars of paragraphs 5, and what are now paragraphs 10.6 and 10.7, of the Proposed Amended Defence. Leave will therefore not be granted to file the existing Proposed Amended Response but to file a further amended response within 14 days consistent with the foregoing Reasons for Judgment.
Orders and Costs
There will be orders in accordance with these Reasons for Judgment.
The Court will hear the parties as to costs.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: S. Gough
Date: 9 May 2008
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