Kidd v Russell
[2018] NZHC 3032
•22 November 2018
NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,
11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CIV-2018-443-36
[2018] NZHC 3032
BETWEEN TONY KIDD
Appellant
AND
BARBARA JOY RUSSELL
Respondent
Hearing: 9 October 2018 Appearances:
S T Hurley for Appellant P Shearer for Respondent
Judgment:
22 November 2018
JUDGMENT OF GRICE J
Contents
Para No.
Background [1]
The issues on appeal [4]
Approach on appeal [5]
The advance of $50,000 to Ms Russell by her parents [10] Unequal division pursuant to s 13 of the Property (Relationships) Act 1976 [20] Were the correct legal tests applied? [27]
All contributions to the marriage partnership are treated as equal [30]
Relationship of short duration [32]
Living rent free in the home [34]
Criminal convictions [36]
Economic advantage and disadvantage to the parties [38] The Court should have divided the debts according to the division of the property [44] Conclusion [50]
Costs [52]
KIDD v RUSSELL [2018] NZHC 3032 [22 November 2018]
Background
[1] Mr Kidd and Ms Russell entered into a de facto relationship sometime around 9 September 2010. Mr Kidd moved into Ms Russell’s home in Waitara in or about November 2010. She had bought the house in March 2010 using money from a relationship property settlement in 2009. Throughout the relationship Ms Russell and Mr Kidd lived in the Waitara home.
[2] Mr Kidd and Ms Russell separated about six years later. Mr Kidd left the family home on 18 September 2016. On 19 September 2016 Mr Kidd registered a Notice of Claim against the title to the property. After their separation, it was sold on 22 September 2017 for $240,000.
[3] Relationship property proceedings were issued by Mr Kidd in November 2016. The matter went to a hearing and judgment was issued on 31 May 2018.1 In that decision, the Judge:
(a)Classified a $50,000 advance made by Ms Russell’s parents to her for the purchase of the Waitara home as a loan.
(b)Refused to award Mr Kidd a compensatory payment for occupation rental for the period in which Ms Russell occupied the home.
(c)Divided the relationship property (in effect the sale proceeds of the house) unequally in favour of Ms Russell (70 per cent) and to Mr Kidd (30 per cent).2
The issues on appeal
[4]The two main issues on appeal are whether the Judge erred in:
(a)Finding that a $50,000 advance to Ms Russell from her parents was a gift not a loan; and
1 Kidd v Russell [2018] NZFC 3989.
2 Property (Relationships) Act 1976, s 13.
(b)Dividing the relationship property, as to 70 per cent to Ms Russell and 30 per cent to Mr Kidd.
Approach on appeal
[5] Appeals from the Family Court in relationship property proceedings are governed by s 39 of the Property (Relationships) Act 1976. Section 39(3) imports ss 126 to 130 of the District Court Act 2016 which dictates the procedure. An appeal of this kind is by way of rehearing,3 and is typically considered a general appeal.4 The principles set down in Austin, Nichols & Co Inc v Stichting Lodestar apply.5 The appellate court has the responsibility of arriving at its own assessment of the merits of the case, but the appellant bears the onus of satisfying the Court that it should differ from the decision below. No deference is required beyond the customary caution appropriate when the tribunal has had a particular advantage, such as technical expertise or the opportunity to assess the credibility of witnesses.6
[6]Heath J in B v F articulated the approach to applying the Austin Nichols
principles in relationship property appeals from the Family Court.7 He said:
[7] Application of the Austin Nichols principles is not altogether easy, in the context of appeals from the Family Court. Many first instance decisions represent a mix of findings of fact (after seeking and hearing witnesses), the formation of an evaluative judgment and the exercise of statutory discretions. Sometimes it is difficult to characterise a particular decision as evaluative, factual or discretionary in nature.
[7]Heath J adopted the following approach to an appeal of this kind:8
(a)First, it must be recognised that the Family Court Judge had the advantage of hearing and seeing witnesses give evidence in the Family Court;
3 District Court Act 2016, s 127.
4 B v F [2010] NZFLR 67 at [6] referencing Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [17].
5 Austin, Nichols and Co Inc v Stichting Lodestar, above n 4.
6 At [3] to [5], [13] and [21].
7 B v F, above n 4.
8 At [8].
(b)Secondly, where the Judge exercised any discretion in reaching his or her decision, this Court must determine whether the discretionary decisions were open based on May v May and Blackstone v Blackstone;9 and
(c)Thirdly, this Court is free to reconsider the Family Court’s decision and substitute its own views on factual questions or evaluations if it is convinced the first instance decision is wrong.
[8] I also refer to the comments of Justice Woolford in considering a unequal division under s 13 of the Act. He said:10
[17] It seems to me that a Family Court Judge is well placed to consider both questions. While the Supreme Court has stated that an appeal court has the responsibility of arriving at its own assessment of the merits of the case, it recognised that an appeal court may rightly hesitate to conclude that findings of fact, or fact and degree, are wrong where the lower court has a particular advantage, such as technical expertise or the opportunity to assess the credibility of witnesses, when such assessment is important.
[18] While no particular technical expertise is called for, this sort of case is the Family Court’s bread and butter. The Family Court also heard from a number of witnesses in person before determining the contributions (both financial and non-financial) made by the parties to the relationship. In those circumstances, I am not necessarily better placed to make the findings of fact or fact and degree which were made by Judge Fleming.
(Footnotes omitted)
[9]The above decisions articulate the approach that I must take. Mander J in
Bowden v Bowden put it well:11
[22] While the appellate Court must make its own assessment of the merits of the case, it does not ignore the judgment the subject of the appeal.12 Errors in the first instance judgment are required to be identified, and the appellant bears the persuasive burden of satisfying the appeal Court that a different finding is warranted.13
9 May v May [1982] 1 NZFLR 165 (CA); Blackstone v Blackstone [2008] NZCA 312.
10 Venter v Trenberth [2015] NZHC 545.
11 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1.
12 Austin, Nichols and Co Inc v Stichting Lodestar, above n 4, at [3] and [16].
13 Bowden v Bowden [2016] NZHC 1201.
The advance of $50,000 to Ms Russell by her parents
[10] In the Family Court, the Judge analysed the evidence and reached the following conclusions:
(a)The nature of the advance was well documented by the solicitor acting for Ms Russell at the time of the purchase of the house. She points to consistency across the solicitor’s documentation recording the $50,000 advance as a loan. This documentation was prepared at the time of the advance, before Mr Kidd and Ms Russell commenced their relationship and well before any dispute.
(b)The evidence of Mr Malcolm Russell (Ms Russell’s father) that the advance, while a family arrangement, pointed to it being always intended as a loan. He said there was no other formal documentation and there was always an understanding the money would be repaid in the event that Ms Russell sold the house or could not make repayments. He said following his death or that of his wife the loan would be taken into account in the terms of any inheritance that Ms Russell would receive from their estates.14
(c)Other siblings had received loans on similar terms. They had repaid their loans as and when they were able to.15
(d)Ms Russell was not employed at the time of the loan so it was unlikely at that stage she would be able to repay the loan in full out of her earnings. Therefore, the requirement was that it would be repaid on the future sale of the house.16
(e)In relation to the evidence of Ms Russell’s sister, Ms McDonald, the Judge said:17
14 Kidd v Russell, above n 1, at [7](b).
15 At [7](c).
16 At [7](d).
17 At [7](e).
… I accept the evidence of Janette Ms Macdonald, Ms Russell’s sister that corroborates Ms Russell’s evidence. Ms Macdonald said that the repayment of the $50,000 was discussed in Mr Kidd’s presence at a barbeque. This was at a time when he and Ms Russell were thinking about their future together, including a move from Waitara to the Coromandel and establishing themselves there. Ms Macdonald said that her sister would need to repay the $50,000 loan to their parents if her house was sold.
(f)The Judge went on to say:
[8] Even if I accept Mr Kidd’s evidence that he was never made aware that the advance was a loan, this is immaterial given the transaction occurred before his involvement in Ms Russell’s life. Nor does the classification of it as a loan fail due to the absence of “formal documentary evidence of a loan or deed of acknowledgement of debt”. I accept at face value the notation in the conveyancing documentation created at the time of the transaction by the solicitor and not prepared retrospectively for the purpose of this hearing.
[11] The Judge therefore classified the $50,000 advance made by Ms Russell’s parents to her for the purchase of the home as a loan.
[12] On appeal, Mr Kidd says that there are a number of factors which point to the Judge’s decision being in error as this advance should have been classified as a gift and not a loan. In particular, he says:
(a)The same solicitor acted in respect of the advance of the monies of
$50,000 from Mr and Mrs Russell Snr to Ms Russell. There was no independent advice in respect of the loan. Mr Kidd says it was an advance on Ms Russell’s inheritance and not a loan;
(b)There were no formal documents such as an acknowledgement of debt or other loan documentation that would be expected to record the terms of the loan. This indicates the advance was a gift not a loan;
(c)Finally, Mr Kidd says that the evidence of Ms McDonald, Ms Russell’s sister, that she had told Mr Kidd at a barbeque that the money was a loan, should not be taken into account as this assertion had not been put to Mr Kidd. He did not have an opportunity comment on that evidence.
[13] I am of the opinion that the evidence supports the Judge’s finding and that she was not in error.
[14] First, a letter from the solicitors acting for Ms Russell and her parents at the time of settlement record in the statement of account and reporting letter that the
$50,000 was a loan from her parents. The lawyers’ trust account records also record it as a loan.
[15] Ms Russell’s father also confirmed it was a loan in his evidence-in-chief and maintained that position in cross-examination.
[16] Finally, Ms McDonald in her evidence-in-chief, provided by way of affidavit, referred to loans being advanced to her and her siblings (including Ms Russell) by their parents. Ms McDonald was aware that they had loaned $50,000 to Ms Russell to buy the house property following Ms Russell’s separation from her husband.
[17] Mr Kidd complained that Ms McDonald had commented that she had told Mr Kidd of the nature of the loans at a barbeque, and this point had never been put to him. It should be noted this information was disclosed in the cross-examination of Ms McDonald and was not in her affidavit. The answer in dispute was given when Ms McDonald was asked “did you ever discuss the advance of $50,000 to your sister with Mr Tony Kidd?” by opposing counsel. It was open to counsel for Mr Kidd to apply for him to be recalled at the time for that matter to be put to him. That application would have been a matter for the Judge.
[18] That being said, in the circumstances I do not consider the point a material one. The Judge indicated in her judgment that whether Mr Kidd knew the advance was a loan was immaterial. The matter, therefore, went solely to Mr Kidd’s credibility. Further, the evidence of Ms Russell and her father, without taking into account Ms McDonald’s evidence, was sufficient for the Judge to reach the conclusion that she did.
[19] Accordingly, I do not consider the Judge erred in concluding the advance was a loan and that it be taken into account when determining the equity in the former home.
Unequal division pursuant to s 13 of the Property (Relationships) Act 1976
[20] By the time of the hearing the relationship property consisted of the proceeds of sale of the Waitara property. The net proceeds of sale (having deducted the $50,000 loan) amounted to $139,394.05.18
[21] The Judge determined that the net sale proceeds should be divided 70 per cent in favour of Ms Russell and 30 per cent for Mr Kidd. Mr Kidd says the decision should have been for equal division.
[22]Ms Russell had purchased the house in Waitara for a purchase price of
$200,000.00. The loan of $50,000 from her parents went toward the purchase. She was not employed at the time and was unable to obtain a loan from other sources.
[23] The house was purchased well before the beginning of the parties’ relationship. Mr Kidd moved into the house in approximately September 2010. Subsequently, a mortgage was obtained from the TSB which was used for renovations to the property. It is common ground that various renovations and improvements were made to the house. It is clear that Mr Kidd worked on these.
[24] It is also common ground that Mr Kidd did not bring any significant assets to the relationship property pool at the outset. Both parties had been through relationship separations and property settlements before this relationship.
[25] The Judge, in reaching her conclusion that equal sharing of the relationship property would be repugnant to justice or completely unfair, took into account a number of factors. When considering them she said:19
(a)[Ms Russell’s] contribution of the house which provided Mr Kidd with rent free accommodation for the first three years.
18 Kidd v Russell, above n 1, at [35] and [36].
19 At [53].
(b)Ms Russell’s contribution of the house and substantial equity in it which enabled both parties to jointly borrow funds for vehicles.
(c)Mr Kidd’s income enabled the parties to jointly borrow money for improvements on the house. I recognise Mr Kidd’s contribution of his income which enabled the parties to meet loan repayments for renovations. I also acknowledge his labour and efforts with regards to the work carried out on the property that he was involved with. I stop short of contributing the whole of the increase in value of the property to Mr Kidd. I take into account market forces and Ms Russell’s contribution as well.
(d)I recognise the availability of his income to support holidays undertaken by both parties and also for the period of almost half of the relationship when he supported Ms Russell when she was not working.
(e)I take into account it was only for a short period of time into the initial loan of $20,000 in 2013 (for vehicles) until Ms Russell returned to the workforce which provided additional household income to meet expenses therefore relieving the burden on Mr Kidd to single- handedly meet all of the outgoings associated with the property and their lifestyle.
(f)I take into account the non-financial contributions of each party towards the other. They both had periods when they were unwell and each relied on the support and contributions of the other during those times. I place equal value on their mutual love, friendship and companionship.
[26] I now turn to the issues raised by Mr Kidd on appeal in relation to that determination.
Were the correct legal tests applied?
[27] The Judge correctly summarised the law in relation to the exception to equal sharing as provided under s 13 of the Act. She referred to the relevant authorities including Martin v Martin20 and Joseph v Johansen.21 She noted the test of whether extraordinary circumstances make equal sharing repugnant to justice was a stringently difficult test to overcome.22 She also indicated, however, that it was never designed to be an impossible one.23 She correctly noted whether extraordinary circumstances exist is a factual question. Whether they are repugnant to justice is a value judgment24
20 Martin v Martin [1979] 1 NZLR 97 (CA) at 111.
21 Joseph v Johansen [1993] 10 FRNZ 302 (CA).
22 Kidd v Russell, above n 1, at [41].
23 At [41] referring to Venter v Trenbirth [2014] NZFC 4902.
24 At [41].
and she posed the question as whether equal sharing of relationship property is completely unfair.25
[28] The Judge was entitled to assess the credibility of the witnesses and attach such weight as she thought appropriate to the various factors that she needed to weigh to reach her conclusion. She reached the conclusion that the combination of factors in that case made the relationship extraordinary.26 She therefore considered the sharing of relationship property would be repugnant to justice or completely unfair.27
[29]The Judge considered and applied the appropriate legal tests.
All contributions to the marriage partnership are treated as equal
[30] While the Judge took into account the contribution of the house property by Ms Russell to the relationship it is clear that she also counted other contributions including Mr Kidd’s income which enabled the parties to jointly borrow for improvements to the house and holiday. In addition, she acknowledged his labour and efforts in the work on the property.
[31] Nevertheless, another factor taken into account was the monetary contribution of the property by Ms Russell. That was not given undue weight in the context of the time the parties were together and the other contributions made.
Relationship of short duration
[32] Mr Kidd submitted that the relationship was not a relationship of short duration but was treated as such in the judgment. The Judge made no such finding in her judgment. The Judge found that:
[43] Standing back and looking at the overall evidence, I am of the view that the following factors are relevant to my assessment of whether the circumstances are extraordinary:
25 At [42].
26 At [50].
27 At [51].
(a)The parties met in September 2010. Their relationship developed to a point where they wanted to live together. Mr Kidd moved into Ms Russell’s home sometime between November and December 2010 his regular monetary deposits into Ms Russell’s bank account started in January 2011.
(b)The parties separated on 18 September 2016. Their relationship was of approximately five years and 10 months duration.
[33] The Judge did not approach the sharing of relationship property on the basis of a short duration relationship. She noted that she was required to make findings under s 13 of the Act. Nevertheless, the length of relationship was one relevant factor. The Judge expressly noted the relationship lasted for approximately 15 per cent of each parties’ adult life.28 The Judge did not err in taking this into account.
Living rent free in the home
[34] Mr Kidd submits the Family Court Judge was wrong in determining Mr Kidd had lived “rent free” in the family home for the first three years of the relationship when there were no mortgage borrowings.29 The Judge said:
[43] …
(n) For the first three years of the relationship there were no mortgage borrowings. Their incomes contributed to their lifestyle and modest outgoings in respect of the property for rates, insurance, power and the like. Other than contributing to the outgoings, Mr Kidd lived rent free in the property for the first three years approximately.
…
[35] This is supported by the evidence. The Judge acknowledged that Mr Kidd contributed to the outgoings in that period. For the first three years there was no mortgage on the property. Mr Kidd moved in leaving behind a rental property for which he paid $250 per week. Mr Kidd takes issue with the Judge’s comments in this regard saying he was committed to a de facto relationship at that stage and “not a boarding situation”. However, the Judge is just making the point that he had the benefit of living in the property without having to pay mortgage outgoings or similar. The Judge is entitled to analyse all the contributions, whether by way of the provision
28 Kidd v Russell, above n 1, at [43](q).
29 At [43](n).
of the home or payments towards outgoings. It was only one factor she considered. She was not in error in taking that into account.
Criminal convictions
[36] The next matter that Mr Kidd raises is that the Judge took into account his previous criminal convictions. The Judge said:30
[43] …
(i)Mr Kidd was convicted of fraud in Australia and sentenced to 12 months’ imprisonment and ordered to pay reparation of
$38,000, in 2008. At the time of commencing the relationship he was making reparation payments of $20 per week, which equates to $1,040 per year.
[37] It is true that the convictions were New Zealand rather than Australian convictions, however this is immaterial. The relevance of the convictions was that Mr Kidd was paying reparation payments of $20 per week, a total of $1,040 per year during the relationship. This is also a relevant factor that the Judge was entitled to take into account.
Economic advantage and disadvantage to the parties
[38] Finally, Mr Kidd says that it is not uncommon for both parties to come out with less equity or assets when a relationship ends. That does not mean s 13 should be invoked. He says the Judge was in error in noting that the equity in the home at the start of the relationship “represented the fruits of Ms Russell’s life endeavours. She had been married for 25 years and had raised two children … her entire relationship property settlement was vested in the purchase of her new home in 2010”.31
[39] In contrast the Judge commented that Mr Kidd could be well on his way to rebuilding his future wealth and had a substantial economic advantage, being a lump sum payment of approximately $69,500 plus an upgraded vehicle, his salary intact and his income earning ability unaffected by the relationship, as well as the advantage of three years rent free accommodation. Mr Kidd says he supported Ms Russell. At
30 Kidd v Russell, above n 1, at [43](i).
31 At [43](g).
periods during the relationship he worked on the house and contributed a higher income. Therefore, because his contribution was income and work and not capital his contributions should not be treated differently.
[40]In relation to Ms Russell’s position and prospects the Judge said:32
[49] By contrast Ms Russell is economically disadvantaged. Her significant capital contribution of $151,000 will have reduced to $69,500 in less than six years. She was unable to afford to retain the home hence the need for it to be sold. She works part-time and is an unskilled worker. She does not have an entitlement to any other relationship property accumulated by the parties during the relationship, as there is none. She too has the benefit of an improved car but the car is a depreciating asset.
[41]The Judge summarised the analysis of the facts as follows:
(a)The relationship started in September 2010. Mr Kidd moved into Ms Russell’s home sometime between November and December 2010 and made regular monetary deposits into her bank account from January 2011.
(b)They separated on 18 September 2016. The relationship was approximately five years 10 months duration.
(c)They had both been previously married and were middle aged when they entered the relationship. Ms Russell was 48 and Mr Kidd almost 50.
(d)There were no children of the relationship.
(e)Ms Russell had owned the family home prior to the relationship commencement with an equity of $151,000.
(f)At the date of hearing the family home had been sold.
(g)The equity represented the fruits of Ms Russell’s life endeavours.
32 At [49].
(h)Her employment during relationship was low income. She had no qualifications which would enable her to earn wages comparable to Mr Kidd. Mr Kidd earned considerably more.
(i)Mr Kidd was convicted of fraud and was paying reparation.
(j)Mr Kidd bought his tools, some furniture and a 2009 Toyota Camry motor vehicle to the relationship. These were depreciating assets.
(k)During their relationship they acquired no relationship property together apart from motor vehicles which were purchased with borrowings that remained in part outstanding at the date of separation.
(l)The house was the security for joint borrowings. Both parties contributed to the outgoings.
(m)Because of Mr Kidd’s income they were able to borrow from the TSB for motor vehicles and renovations.
(n)For the first three years of the relationship Mr Kidd lived on the property contributing to the outgoings but otherwise rent free.
(o)For two years and nine months during the relationship Ms Russell did not work and was financially supported by Mr Kidd.
(p)Mr Kidd’s income was used for holidays which were relatively modest.
(q)The relationship lasted for approximately 15 per cent of each parties’ adult life.
[42] The Judge’s findings on the above matters was supported by the evidence. She concluded the combination of factors led her to the conclusion that the relationship was extraordinary.33 She considered equal sharing of the relationship property would
33 At [50].
be repugnant to justice or completely unfair.34 That conclusion was open to her on the evidence.
[43] The Judge made no error in reaching her decision that there should be unequal sharing in favour of Ms Russell.
The Court should have divided the debts according to the division of the property
[44] Mr Kidd says that if the determination of 70/30 division in favour of Ms Russell adopted by the Court is correct, then the debts should have also divided on a 70/30 basis. To that end the Court should have required Ms Russell to pay 70 per cent of the mortgage, loans and the costs of sale.
[45] The total of the proceeds of sale were taken from the settlement statements. It is common ground that the sum of $189,394.05 was taken as the net proceeds of sale (including interest) at the date of hearing. This is the figure that the Judge started with for her calculations.35
[46] From that amount the Judge deducted the loan repayment to Mr and Mrs Russell of $50,000.36 The balance for division was $139,394.05. That was the amount under s 11 that fell to be divided in accordance with the parties’ respective contributions to the relationship.
[47] The Judge made post separation contribution adjustments pursuant to s 18(b) of the Act. These were made in accordance concessions by Mr Kidd in his evidence. He accepted that Ms Russell should be repaid the $12,000 she had paid off the mortgage post separation. Mr Kidd had also acknowledged that three relationship debts that had existed at the date of separation and were paid by Ms Russell totalling
$1,843.50 should be reimbursed to her. The Judge carried out resulting calculations in her judgment.37 First she divided the balance sale proceeds of $139,394.05 as to 70 per cent/30 per cent in favour of Ms Russell. She then apportioned the post separation
34 At [51].
35 At [34].
36 At [35].
37 At [55] and [56].
adjustments in the same percentages. Mr Kidd was awarded 30 per cent share of
$41,818.21 and then the Judge deducted 30 per cent of the post-separation mortgage principal being $3,581.54 (total $11,938.48), as well as a further deduction of $553 being 30 per cent of the three relationship property debts paid by Ms Russell post separation (the total being $1,843.01). The result was an amount owing to Mr Kidd of $37,683.62.
[48] As Mr Shearer pointed out in his submissions another way of undertaking those calculations would be:
Net proceeds of sale at date of hearing 139,394.05 Less reimbursement to Ms Russell for
post-separation reduction of mortgage principle
-11,938.48
Less reimbursement to Ms Russell for
Post-separation payment of relationship bills
-1,843.50
Net proceeds for division
125,612.07
30% of $125,612.07 to Mr Kidd
37,683.62
[49] The Judge made no error in calculating the amounts to be divided. No further adjustments in relation to the mortgage and the loan outstanding to Ms Russell’s parents were required. She correctly allowed for the post separation contributions that had been agreed to by Mr Kidd.
Conclusion
[50] I am satisfied that the Judge made no error in reaching her decision. The matters that form grounds of appeal are essentially the matters already argued in the Family Court. I agree with the Judge’s decision.
[51]Accordingly, the appeal is dismissed.
Costs
[52] There appears to be no reason why costs should not follow the event. If counsel cannot agree on costs submissions should be filed and served in hardcopy and electronically as follows:
(a)By the respondent on or before five days from the delivery of the judgment;
(b)By the appellant in response on or before a further five days;
(c)By the respondent in reply (if any) on or before a further three days.
Grice J
Solicitors:
Hurley Law, New Plymouth Govett Quilliam, New Plymouth
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