Parsonage v Laidlaw HC Auckland CIV 2007-404-004484
[2008] NZHC 2298
•30 April 2008
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2007-404-004484
BETWEEN G F PARSONAGE AND T J GOULDING Plaintiffs
ANDJ C LAIDLAW AND C A LAIDLAW Defendants
Hearing: 31 March 2008
Counsel: K W Berman for Plaintiffs
G D Shand and G Beresford for Defendants
Judgment: 30 April 2008 at 5:00 pm
JUDGMENT OF ASSOCIATE JUDGE ABBOTT
This judgment was delivered by me on 30 April 2008 at 5:00 pm pursuant to Rule 540(4)
of the High Court Rules. Registrar/ Deputy Registrar
Solicitors:
Daniel Overton & Goulding, PO Box 13017, Onehunga, Auckland, for Plaintiffs
Grimshaw & Co, PO Box 6646, Auckland, for Defendants
G F PARSONAGE AND T J GOULDING V J C LAIDLAW AND C A LAIDLAW HC AK CIV 2007-404-
004484 30 April 2008
[1] The plaintiff trustees seek summary judgment against the defendants for breach of warranty under an agreement for sale and purchase of a residential property.
[2] The defendants bought a land and building package in 2000. In 2003 they agreed to sell it to the first-named plaintiff (Mr Parsonage) “and or nominee”. It was transferred to the plaintiffs as trustees for the Seeleye Trust.
[3] The building leaked. The plaintiffs seek to recover the cost of remedying defects causing the leak and other losses. The plaintiffs have issued a claim in both contract and tort. They seek summary judgment in respect of the causes of action in contract only (all based on a contractual warranty that work was completed in accordance with building consents and obligations under the Building Act 1991).
[4] The defendants say that they have arguable defences to all four causes of action in contract, all relating (in one form or another) to the plaintiffs’ entitlement to sue under the agreement or their ability to show loss. They also say that the claims are unsuitable for summary judgment.
The agreement
[5] The agreement for sale and purchase was entered into on 3 October 2003. The parties to the agreement were the defendants (as vendors) and “G P Parsonage and or nominee” as purchaser. The agreement was signed by the defendants and Mr Parsonage.
[6] The agreement was drawn up using the standard Auckland District Law
Society/Real Estate Institute form (7th ed (2) July 1999). Clause 6.2 (5) reads:
The vendor warrants and undertakes that at the giving and taking of possession:
….
(5) Where the vendor has done or caused or permitted to be done on the property any works for which a permit or building consent was required by law:
(a) The required permit or consent was obtained; and
(b)The works were completed in compliance with that permit or consent; and
(c) Where appropriate a code compliance certificate was issued for those works; and
(d)All obligations imposed under the Building Act 1991 were fully complied with.
[7] Although there is no evidence of any written notice of nomination being given, the defendants do not dispute the plaintiffs’ status as nominee under the agreement. Between date of signature and date of settlement of the agreement, solicitors for the parties corresponded using the heading “Laidlaw to Seeleye Trust”, and the transfer and notices to local authorities contained the names of the plaintiffs as transferee/owner(s) respectively.
[8] The transaction settled on 12 December 2003.
The aftermath
[9] Mr Parsonage moved into the house in December 2003. He says that it became apparent within weeks of taking possession that there were waterproofing problems with the house. Some initial repair work was undertaken under a guarantee, but further faults were identified by April 2004. Mr Parsonage claims that it became apparent by the latter part of 2004 that considerable rebuilding work was required. Temporary repairs were undertaken pending issue of a building consent. That was not issued until December 2005. Repair work was completed, and a code compliance certificate issued in December 2006.
[10] The trustees say that the property was unoccupiable from 1 November 2004 (Mr Parsonage went to Australia to live in October 2004) until repairs were complete on or about 1 November 2006. The trustees sold the property to a third party in early
2007.
History of pleadings
[11] The plaintiffs issued this proceeding, including an application for summary judgment, on 24 July 2007. They initially pleaded that:
a) the defendants agreed to sell the property to Mr Parsonage or nominee, and that Mr Parsonage nominated the trustees;
b)the defendants breached the warranty in clause 6.2 (5) because the dwelling was not completed in compliance with the building consent, did not comply with provisions of the Building Code and did not comply fully with the Building Act 1991 (particulars of the breaches being set out in affidavits filed in support of the application for summary judgment); and
c) they suffered loss as a result, being the cost of demolition and reconstruction of the defective or damaged building, rent lost during the period the house was unoccupiable, a loss in capital gain on resale and in experts’ inspection fees (they also claim general damages for stress and inconvenience).
[12] The plaintiffs filed affidavits in support of the application for summary judgment, by:
a) Mr Parsonage;
b) the builder who undertook the repair work;
c) a building consultant who inspected the building in July 2004 and reported on defects contributing to the lack of weathertightness, failure to meet requirements of the building code and failure to comply with the building consent, and
d)an assessor for the Weathertight Homes Resolution Service who inspected the property in October and November 2004 and provided
an independent report under the Weathertight Homes Resolution
Services’ Act 2002 on 30 December 2004.
[13] The defendants filed notice of opposition to the application for summary judgment on 22 August 2007. The sole ground relied on was that the trustees were not parties to the agreement for sale and purchase, and were unable to sue to enforce it. The defendants did not file any affidavits in support of that notice of opposition.
[14] On 11 September 2007 the plaintiffs filed an amended statement of claim in which they pleaded that the defendants had accepted their nomination as purchasers (listing correspondence and documents as particulars of that acceptance) and that the matters pleaded in their first statement of claim gave rise to three causes of action in contract and two in tort. The causes of action in contract were pleaded in terms of novation, benefit of the agreement pursuant to s 4 of the Contracts (Privity) Act
1982, and common law principles identified by the House of Lords in the Linden Gardens Trust Ltd case: St Martins Property Corporation Limited v Sir Robert McAlpine Ltd [1994] 1 AC 85.
[15] The plaintiffs filed a second affidavit by Mr Parsonage, and an affidavit by his co-trustee Mr Goulding, in support of the amended application. In them they say that a decision was made to acquire the property in the name of the trust, and the defendants’ real estate agent was told of this prior to entry into the agreement, and that all repair costs and other losses (other than the general damages) had been incurred and paid for by the trust. Mr Goulding annexed to his affidavit correspondence between the party solicitors and settlement documents identified the transaction as being between the defendants and either the Seeleye Trust or the plaintiff trustees (as distinct from Mr Parsonage).
[16] The defendants filed a statement of defence to the amended statement of claim, and opposition to the amended application for summary judgment, on 26
September 2007:
a) They challenged the cause of action in novation on the grounds that they had not agreed to the novation and there was insufficient basis for a novation to be inferred.
b)They contested the second cause of action (privity) on the grounds that the phrase “or nominee” was insufficient to designation for the purposes of s 4, and there was no other basis for applying that section.
c) They contested the plaintiffs’ third cause of action (the common law principles in the Linden Gardens Trust case) on the grounds that there was no “black hole” in the law as contended by the plaintiffs as they can seek remedies in tort.
[17] In support of these grounds of opposition they filed affidavits by both defendants saying (inter alia) that they had never been asked to accept the Seeleye Trust as purchaser in place of Mr Parsonage, nor agree to any variation of the contract with Mr Parsonage. An employee of the defendants’ solicitors filed an affidavit also attaching correspondence passing between solicitors after issue of the proceeding, in which the defendants’ solicitors had sought documentary evidence to support the allegation that repair costs had been paid by the trust (inter alia).
[18] On 15 October 2007 the plaintiffs filed a second amended statement of claim in which they pleaded that Mr Parsonage entered into the agreement “for and on behalf of the plaintiffs as trustees of the Seeleye Trust”, and added a further cause of action in contract to the three previously pleaded, namely that Mr Parsonage entered into the agreement as agent for the plaintiffs, and that this had been accepted by the defendants.
[19] At the same time the plaintiffs filed a second amended application for summary judgment and two further supporting affidavits, one each by Mr Parsonage and by Mr Goulding. In those further affidavits, Mr Parsonage confirmed the facts in the second amended statement of claim and Mr Goulding stated that he had approved Mr Parsonage entering into the agreement on behalf of the trust.
[20] On 1 November 2007 the defendants filed opposition to the second application for summary judgment in which they challenged the agency cause of action introduced by the second amended statement of claim on the grounds that they had not agreed to the plaintiffs being a party, were unaware of the alleged agency, and the allegation was inconsistent both with the plaintiffs previous affidavits and the express terms of the contract.
Principles
[21] Counsel relied on the well established principles for summary judgment as set out in Pemberton v Chappell [1987] 1 NZLR 1, 4:
a) The summary procedure is designed for straight forward claims where the plaintiffs are able to satisfy the Court, on affidavit evidence, that the defendants have no defence;
b)The plaintiffs have the onus of bringing the Court to the point where it is confident, sure, convinced, persuaded to the point of belief, or left without any real doubt or uncertainty on the matter.
[22] The issues for the Court’s determination on this application, therefore, are whether the plaintiffs have satisfied me that the defendants do not have any arguable defence to any one of the four pleaded causes of action in contract. In the course of argument it became apparent that the causes of action on the basis of novation or the principles in the Linden Gardens Trust case were unsuitable for summary judgment, and the critical issues were whether the plaintiffs had an unanswerable claim either on the grounds of agency, or as nominees who were entitled to the benefit of the contract pursuant to s 4 of the Contracts (Privity) Act. There is also further issue as to whether the defendants have an arguable case that the trustees have failed to show they have suffered loss, thus limiting any determination to one of liability only.
Did Mr Parsonage enter into the agreement as agent for the plaintiffs?
[23] The plaintiffs contend that Mr Parsonage was acting at all times as their agent, and that they are entitled to enforce the warranty as principal. They contend that there is clear and sufficient evidence of the agency in the affidavits of Mr Parsonage and Mr Goulding. They accept, for the purpose of this application, that the defendants say they knew nothing of this. Although they contend that the agency was disclosed to the defendants’ agent, and his knowledge binds the defendants, they say it is irrelevant whether the agency is disclosed or undisclosed: Hannah v Nodine (1910) 12 GLR 722.
[24] The defendants say that the allegation of agency is not supported by, and is inconsistent with, Mr Parsonage’s own evidence, and the terms of the agreement. They contend that Mr Parsonage purchased as principal, with power to nominate, not as agent, and the two positions are mutually exclusive and not reconcilable: Cashmore & Anor v Sands & Anor (HC Wanganui, CIV 2004-483-2007, 7 February
2007, Clifford J); GPO Holdings Ltd v CIR (HC Auckland, M1126/94,
30 November 1995, Fisher J).
[25] In my view the evidence at this stage does not clearly establish that Mr Parsonage disclosed his agency to the defendants. His evidence on this point is given in his second affidavit. It is noteworthy that the cause of action in agency was added after this affidavit, which was sworn in support of causes of action based on novation, privity, and very broad principles of contract identified in the Linden Gardens Trust case. Mr Parsonage says (at paragraph 2) that he told the defendants’ agent that a family trust would be purchasing, and his solicitor was the other trustee. He went on to say:
To save obtaining Tim’s signature on the offers and counter-offers, as the agreement was negotiated, we (the agent and I) agree to describe the purchaser as “G F Parsonage and or nominee”.
[26] I do not regard that evidence as determinative of the point whether Mr Parsonage was signing as agent, or in his own capacity but with a view to nominating the trust, particularly as the agency cause of action was not pleaded at that time. In this summary judgment context, and taking into account the wording
of the agreement (to which I will return in a moment) I am not persuaded that this evidence necessarily amounts to disclosure by Mr Parsonage that he was entering into the agreement as agent for the Seeleye Trust.
[27] Further evidence may also be needed from the trustees to explain the evidence in Mr Parsonage’s first affidavit that he entered into the agreement, and then nominated Mr Goulding and himself as purchasers. This does not sit easily with the argument of agency. Counsel for the plaintiffs argued that it was explicable in terms of Mr Parsonage’s evidence about difficulties of getting Mr Goulding’s signature on counter-offers, but there was no reference to that (as one might expect) in the first affidavit. It is a matter that the defendants ought to be able to explore further at trial. The notion that the plaintiffs were already a principal party is difficult to reconcile with the provision for nomination (with themselves as the proposed nominees): GPO Holdings Ltd v CIR at p8; Cashmore v Sands at para [199].
[28] Counsel for the plaintiffs argued that it had been open to the defendants to obtain evidence rebutting this statement, but they had not done so. I do not see that this alters what is capable of being taken from Mr Parsonage’s evidence.
[29] I turn then to consider the wider evidence of Mr Parsonage and Mr Goulding that Mr Parsonage in fact entered into the agreement as agent for the Seeleye Trust (as undisclosed principal). Both counsel referred me to Burrows, Finn & Todd Law of Contract in New Zealand (3rd ed 2007). The following passage (at paragraph
16.3.2, p 516) applies:
The right of action possessed by the undisclosed principal is, however, subject to two limitations. First, the authority of the agent to act for the principal must have existed at the time of the contract. Secondly, if the contract, expressly or by implication, shows that it is to be confined in its operation to the parties themselves, the possibility is negatived and no one else can intervene as principal. Whether this is the intention of the parties is a matter of construction.
[30] The evidence of Mr Parsonage and Mr Goulding meets the first of the two limitations identified in this passage. However, I accept the submission of counsel for the defendants that the express reference to “as nominee” at least arguably
negatives the possibility of agency (the second limitation in the passage). I am not persuaded that the defendants do not have an arguable defence to the claim based on undisclosed agency.
Are the plaintiffs entitled to the benefit of the agreement (s 4)?
[31] The claim based on s 4 of the Contract (Privity) Act is far more compelling. It accords with the express language of the agreement, and the nomination is demonstrated both by the evidence of Mr Parsonage referred to above and the correspondence and documents that followed (referring to the transaction as being with Seeleye Trust and showing the trustees as transferee and new owners). Additionally, it does not suffer from the criticisms raised by counsel for the defendants of the shifting sands of the pleadings. It was specifically pleaded in the original statement of claim, and then developed with more detail in the first amended statement of claim.
[32] The defendants oppose judgment under this heading on the grounds that the plaintiffs are not named as parties to the agreement, and s 4 of the Contracts (Privity) Act does not assist a bare nominee: Field v Fitton [1988] 1 NZLR 482; Cashmore v Sands.
[33] The plaintiffs’ claim depends on whether as nominees they can claim the benefit of s 4. That section reads:
4 Deeds or contracts for the benefit of third parties
Where a promise contained in a deed or contract confers, or purports to confer, a benefit on a person, designated by name, description, or reference to a class, who is not a party to the deed or contract (whether or not the person is in existence at the time when the deed or contract is made), the promisor shall be under an obligation, enforceable at the suit of that person, to perform that promise:
Provided that this section shall not apply to a promise which, on the proper construction of the deed or contract, is not intended to create, in respect of the benefit, an obligation enforceable at the suit of that person.
[34] The issue under this section is whether the phrase “and or nominee” is sufficient designation of the person entitled to the benefit of the warranties under the
agreement, and particularly under clause 6.2 (5). The plaintiffs say that the section clearly applies to whomsoever is nominated. The defendants contend that the person must be identified or identifiable at the point of entry into the agreement. This difference of views arises out of a conflict of authority.
[35] Prior to the coming into force of the Contracts (Privity) Act a nominee alone had no right to enforce an agreement: Lambly v Silk Pemberton Ltd [1976] 2 NZLR
427.
[36] The application of s 4 to a nominee was first considered in Coldicutt & Anor v Keeys (HC Whangarei A50/84, 17 May 1985, Hillyer J). That was a claim for specific performance of an agreement for sale of land. There was an issue over whether the first plaintiff (who was nominee of the named purchaser) was entitled to an order. Hillyer J accepted that although prior to the coming into force of the Contracts (Privity) Act the purchaser named in the contract would have been the correct plaintiff for an application for specific performance, that situation had been changed by the Act. He found that although the first plaintiff was not designated by name, he was designated by description as a nominee, and that there was nothing in the contract to suggest that that particular benefit of the contract was not enforceable at the suit of the nominee.
[37] The issue was considered at some length in obiter remarks by the Court of Appeal in Field v Fitton [1988] 1 NZLR 482. The issue in that case was whether the nominee under an agreement for sale and purchase had a caveatable interest. The Court took the view that whether a nominee, who was not a party to the contract, could have the benefit of s 4 would depend on whether the nominee was defined with sufficient particularity to have been designated for the purposes of the section. The Court held that for s 4 to apply the word “nominee” had to be qualified by addition of a descriptive phrase or the particular class within which the nominee fell to enable the nominee to be identified.
[38] The issue came up again in Karangahape Road International Village Ltd v Holloway [1989] 1 NZLR 83. The nominee under an agreement for sale and purchase sought specific performance. Chilwell J followed Field v Fitton in finding
that “nominee” without more was not a description because it has no particulars. He also found (as in Field v Fitton) that the proviso to s 4 applied and on the proper construction of the agreement there was no intention to create an obligation on the vendor enforceable by the nominee.
[39] A different view of the requirements of s 4 came in Rattrays Wholesale Ltd v Meredyth-Young & a’Court Ltd [1997] 2 NZLR 363. In that case the plaintiff sought to enforce a clause in a lease which constituted a covenant by the defendant as lessee (in the nature of a trade tie). The Court (Tipping J) found in favour of the plaintiff on several grounds. Although it had already decided that the plaintiff had rights to enforce the clause as assignee the Court also considered whether the plaintiff could successfully invoke the provisions of s 4 as the lessor’s nominee. In a lengthy passage (page 380-383) Tipping J reviewed the case law that I have referred to above, and a further decision (Cross v Aurora Group Ltd (1989)
4 NZCLC 64,909), before declining to follow the (obiter) approach taken in Field v
Fitton. His reasoning was:
The contract must therefore sufficiently identify the third party on whom the benefit is intended to be conferred. That identification is permitted in one of three ways; by name, by description, and by reference to a class. The purpose is to enable the promisor to know with sufficient certainty who can claim the benefit of the promise. Because that person is not a party to the contract, and may not yet be in existence, he/she must be identifiable from the terms of the contract so that the promisor can say with reasonably certainty whether a person subsequently claiming to be the third party promisee is in fact the person whom the contract intended to benefit.
On that basis the question is whether "X's nominee" or "the lessor's nominee" is a person designated by description. In my judgment a person so "described" is a person designated by description for the purposes of s 4. Conceptually there can be no doubt whether a person claiming to qualify does in fact answer to the description. X or the lessor has the power to nominate only one person to take the benefit of the contract. That person, once nominated, is identifiable with certainty. The fact that until nominated the person could be anyone at all does not, in my view, alter the fact that the nominee is designated as the person intended to benefit from the contract and such designation is by description. The identity of the person is described with precision in the contract.
The criterion which the third party promisee must fulfil is specified exactly in the contract. What is the difference between the following descriptions: "X's nominee", "the winner of the next Olympic marathon" and "Y's first grandchild". Each allows the intended beneficiary to be positively identified if and when the event takes place. The fact that the person may not exist at the date of the contract is not a problem. Nor is the fact that there may never
be a nomination. In that event liability will remain with the person holding the power of nomination.
[40] At the conclusion of this reasoning on whether “nominee” was sufficient designation he added (at p383):
I am fortified in [taking this] course by the reservations expressed by the learned authors of Cheshire & Fifoot (supra) at p 459 in their discussion of Field v Fitton. I agree with their comment that if a nominee is referred to in a contract such reference must be with the intention of meaning something, and that must be the creation of legal obligations in favour of the nominee. In my view the promisor should be held to his promise to the nominee provided the identity of that person can be clearly ascertained from a name, description or reference to a class included in the deed or contract in question.
[41] The learned judge then commented, although it had not been argued, that it could not have been argued that the proviso applied (at p 383):
Clearly there must have been an intention to create an obligation enforceable at the suit of the nominee.
He held that the plaintiff could enforce the clause in its capacity as nominee of the lessor.
[42] The issue, and the decision in Rattrays Wholesale Ltd v Meredyth-Young & a’Court Ltd have recently been considered in passing by the Court of Appeal in Ballance Agri-Nutrients (Kapuni) Ltd v The Gama Foundation [2006] 2 NZLR 319 where the Court had to consider whether the respondent was a successor or permitted assign, and thereby within a “class” of persons on whom the lease conferred the benefit of a clause in the lease. The Court found that the respondent had rights under the clause both as assignee and under s 4 of the Contracts (Privity) Act. William Young J adopted the approach to s 4 taken by Tipping J in Rattrays, having earlier (at para 101) commented:
The law would truly be an ass if it did not provide for The Gama Foundation to exercise the right of action associated with the presumed breach of covenant on the part of Ballance.
[43] I prefer, and adopt, the interpretation of s 4 in Rattrays Wholesale Ltd v Meredyth-Young & a’Court Ltd. I find that the plaintiffs are nominees of GP Parsonage as purchaser, and are sufficiently identified as such to be entitled to the
benefit of clause 6.2(5) of the agreement for sale and purchase. I also find that the proviso to s 4 does not apply. In my view, there was an intention to create an obligation enforceable at the suit of the nominee.
Other causes of action
[44] Having found that the defendants do not have an arguable defence (on liability) under the third cause of action, I do not need to consider the second and fourth causes of action (novation and general common law principles). Nevertheless, for the sake of completeness I add that I consider that the defendants would have arguable defences to these two causes of action. The cause of action in novation would require agreement, and there is disagreement on that which cannot be resolved at summary judgment stage. Nor do I consider it appropriate to determine by summary judgment the fourth cause of action based on the principles in the Linden Gardens Trust case. Those principles were developed in the absence of a statute such as Contracts (Privity) Act, and may not apply here. In any event, I would not consider it appropriate to determine the case on the basis of the principles in that case without all the relevant circumstances being before the Court, and explored in cross-examination.
Did the trustees incur the loss?
[45] The defendants do not challenge the amount paid for repair work but argue that the plaintiffs had not proven on the balance of probabilities that they (i.e. the trustees) have paid those costs. They base this argument on a statement made by Mr Parsonage in his first affidavit that he paid for the repairs, and repair invoices which were addressed simply to “Geoff Parsonage”.
[46] After this issue was raised in correspondence, Mr Parsonage filed a further affidavit (3 September 2007) stating:
4.All losses which have been incurred, have been incurred by the Seelye Trust and the cost of the repairs, of $159,079.46 was paid for by the Trust.
[47] The defendants submit that there is a conflict between the two statements which is not reconcilable, and point to the fact that the plaintiffs, despite request, have never produced any documentary evidence in the form of accounts or bank statements that show the repair costs coming from the trust.
[48] I do not consider this an unresolvable conflict. Both Mr Parsonage and his co-trustee, Mr Goulding, have given evidence that they agreed before entry into the agreement for sale and purchase that the trust would buy the property. Mr Parsonage does not make clear, in his first affidavit, whether he was making the payments personally or as trustee. He then clarifies that in his second affidavit (as set out above). Mr Goulding (in his affidavit sworn on 7 September 2007) also states that repair costs (and indeed other losses claimed save for general damages) were incurred, and paid for, by the trust. There was no contrary evidence. I am satisfied by this evidence that the repair costs of $159,079.46 were paid for by the trust.
[49] The plaintiffs also seek summary judgment for an inspection fee of $1929.37 incurred in respect of the engagement of the building consultant, Mr Peter Jordan. There is no challenge to that fee, other than the challenge in respect of payment by the trust (which I have dealt with above). As with the repair costs, I find that this payment was made by the trust.
Dispute over claim for rent
[50] The plaintiffs seek summary judgment for lost rent of $52,000 for the period that they say the house was unoccupiable. The defendants challenge this claim on two grounds. They say that the claim for two years of lost rent is unreasonable (pointing to the fact that the builders’ invoices covered a period of only a year). They also argue that the loss was not foreseeable as the house was not bought as an investment property (pointing to the fact that Mr Parsonage lived in it until deciding to move to Australia).
[51] I am not persuaded that there is not an argument for the defendants over the claim for rental. The plaintiffs accept that their claims for loss in capital gain on resale, and for general damages, cannot be determined on this application but must
be decided in a trial on quantum. I consider that the claim for rental should be dealt with in the same manner.
Decision
[52] I find that the defendants do not have an arguable defence to the plaintiffs’ third cause of action. I enter summary judgment against the defendants on that cause of action for the repair costs of $159,079.46, and the inspection fee of $1929.37. The plaintiffs’ claim for summary judgment for lost rental is dismissed. That aspect is to be determined in the ordinary course, along with the balance of the plaintiffs’ claims.
[53] The plaintiffs, having been successful on the major part of the application, are entitled to costs for preparation of and appearance on the application on a 2B basis, together with disbursements as fixed by the Registrar.
[54] There is to be a case management conference at 11:45 am on 22 May 2008
at which directions will be given for the remaining (quantum) aspects of the plaintiffs’ claim.
Associate Judge Abbott
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