New South Wales Supreme Court CITATION : Australian and New Zealand Banking Group Limited v Dennis Radmanovic & 4 Ors [2002] NSWSC 368 revised - 25/06/2002 FILE NUMBER(S) : SC 50041/00 HEARING DATE(S) : 22/4/02 JUDGMENT DATE : 22 April 2002 PARTIES : Australian and New Zealand Banking Group Limited (Plaintiff) Mr John Boghos (Fifth Defendant) JUDGMENT OF : Einstein J COUNSEL : Mr C Newlinds (Plaintiff) Litigant in person ( Fifth Defendant) SOLICITORS : Kemp Strang (Plaintiff) Litigant in person (Fifth Defendant) CATCHWORDS : Guarantees and Indemnities - Enforcement of guarantee against director of company - Whether defendant entered into an unlimited guarantee to secure overdraft for company DECISION : The orders of the Court are as follows (1) Order that the fifth defendant pay to the plaintiff the sum of $166,444.97 (2) Order that the fifth defendant pay the plaintiff's costs of the proceedings. IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERICAL LIST Einstein J Monday 22 April 2002 ex tempore Revised Tuesday 30 April 2002 50041/00 Australian and New Zealand Banking Group Limited & Dennis Radmanovic & 4 Ors JUDGMENT The Proceedings 1 These proceedings are brought by the Australian and New Zealand Banking Group Limited against the fifth defendant, Mr John Boghos, pursuant to a guarantee ["the subject guarantee"], which the plaintiff claims to have been signed by the fifth defendant on 19 November 1999, whereunder the fifth defendant is said to have agreed to pay to the plaintiff on demand all moneys owing or unpaid to the plaintiff by Tilex & Co Pty Ltd ["the company"]. The company had entered into an overdraft agreement with the plaintiff on 9 March 2000, whereunder the plaintiff had agreed to provide an overdraft with a limit of $100,000 on account number 350152653. 2 A copy of the document entitled "Standard Guarantee and Indemnity", upon which the plaintiff sues, is appended to this judgment. The document forms, as to a copy thereof, pages 120 to 139 of exhibit MH 1 to the statement of Mr Hancock made on 27 July 2001. 3 The proceedings before the Court included the admission into evidence first of the document marked for identification P 1, which later became exhibit P 5, and is said to be the original of the Standard Guarantee and Indemnity upon which the plaintiff sues. A careful examination of exhibit P 5 will disclose that the first page and the reverse page appear to have been detached at some time from the pages which are numbered 2 through to 17 inclusive at the bottom right hand corner, and the execution page and the back page. The page which is part of the exhibit, which has been stapled together with the Standard Guarantee and Indemnity, is entitled "Schedule 2 Solicitor's Certificate". On the evidence at the time when the Standard Guarantee and Indemnity was signed, the Solicitor's Certificate was altogether a separate document from the original stapled form of the Standard Guarantee and Indemnity when signed. 4 The proceedings originally joined five defendants. The first defendant was Mr Dennis Radmanovich, and as I understand the evidence, the fifth defendant and the first defendant were both directors of the company. The second and third defendants are the parents of the first defendant, and the fourth defendant is the wife of the first defendant. The proceedings against the first four defendants have been settled. It is, however, relevant to note that the proceedings, so far as the first four defendants had been concerned, had also included claims that these defendants, relevantly on 19 November 1999, had signed a guarantee whereunder they agreed to pay to the plaintiff all moneys owing or unpaid by the company limited to an amount of $50,000, and had subsequently, apparently so it was pleaded on 21 March 2000, signed a further guarantee whereunder they agreed to pay to the plaintiff all moneys owing or unpaid by the company to a limit of $100,000. 5 The subject guarantee includes a page entitled "Details Page". It may be convenient from time to time to refer to the pagination of the exhibit to Mr Hancock's statement, which is exhibit MH 1. The page entitled "Details Page" is to be found at page 121 of that exhibit. At the foot of this page there appear the words "unlimited liability". The execution page [exhibit page 138] shows the document as having been signed by the fifth defendant in the presence of Mr Danny Lagapodis, solicitor of Wollongong, as witness. 6 Also before the Court is the Solicitor's Certificate, to which I have already referred, which although stapled to exhibit P 5, on the evidence was a separate document at the time that it was executed. 7 The fifth defendant; · Denies ever having signed any document to guarantee the unlimited liability of the liabilities of the company; · Denies signing any guarantee on 19 November 1999; · Denies having attended a conference with Mr Danny Lagapodis or any other solicitor on 19 November 1999; · Denies that Mr Danny Lagapodis ever gave him any advice with respect to a guarantee to secure the unlimited liability of the company; · Denies that Mr Danny Lagapodis ever gave him any advice with respect to a guarantee dated 19 November 1999; · Gave evidence that he had never previously seen the document earlier identified in judgment as the Solicitor's Certificate, and gave evidence in his affidavit that the contents of the document are not true. 8 There are clear problems with the first defendant's recollection of a number of relevant events, as during the course of his cross-examination he appeared to readily accept. One only of the examples which comes to mind is that in the course of his cross-examination, as I understood his evidence, the fifth defendant had not seen, at the time when he accepts that he signed his own affidavit made on 12 October 2001, documents paginated as suggested in paragraph 2 of that affidavit. Other problems with his recollection apparently relate to circumstances in which the company went into liquidation. 9 The evidence of the fifth defendant is that, as I understand it, he recalls signing a guarantee in favour of the plaintiff in about August 1999 in the presence of Mr Danny Lagapodis, who at this time was not only his solicitor, but was also the solicitor acting for Mr Dennis Radmanovich and the company. The fifth defendant's evidence is that the guarantee which he signed in about August 1999 was the same or substantially similar to the document already identified as the Standard Guarantee and Indemnity, save that the details at the foot of the first page limited his liability to $50,000. He refers, for example, to the Details Page of the 19 November 1999 guarantee, apparently executed by the first, second, third and fourth defendants, which appears at page 100 of the exhibit, where one sees towards the foot of the page the words "limited liability $50,000 plus interest, costs and other amounts [referred to in clause 2.2]". 10 The fifth defendant's evidence is that at no time did he intend to give an unlimited guarantee to secure the debts of the company. His evidence is that in the period between late June 1999 and early August 1999 he contributed approximately $65,000 to the company's account, and that his arrangement with Mr Dennis Radmanovich was that he would contribute an equivalent amount, but that in fact Mr Dennis Radmanovich did not make his full contribution. 11 The fifth defendant has given evidence that at one stage Mr Dennis Radmanovich arranged loans of $20,000 and $10,000 from his parents-in-law. On the fifth defendant's evidence both he and Mr Dennis Radmanovich were jointly responsible to pay those loans, although they did not have a formal agreement, but this was what they had discussed between themselves. On the evidence of the fifth defendant, Mr Dennis Radmanovich did not contribute any of his own funds, and the fifth defendant became increasingly concerned in that period and up to September 1999 that he alone was providing finance for the company, and that Mr Dennis Radmanovich was "not pulling his weight". The fifth defendant also gave evidence that there was a problem arising from the terms of the shareholders' agreement. On his evidence that agreement included terms to the effect that when the previous company overdraft with National Australia Bank was paid out, Mr Dennis Radmanovich would pay $15,000 to the fifth defendant. The fifth defendant's evidence was that he paid out the overdraft on 3 August 1999 from the sale of his house, but Mr Dennis Radmanovich did not pay him the $15,000. 12 The fifth defendant's further evidence was that he accordingly telephoned Mr Danny Lagapodis to arrange a meeting between himself, Mr Dennis Radmanovich, and the fifth defendant in about September or October 1999. His evidence was that Mr Lagapodis arranged a meeting at 11am on the same day in Mr Lagapodis' office, and that Mr Lagapodis explained the purpose of the meeting and invited the fifth defendant to voice his concerns. The fifth defendant's affidavit evidence was that words to the following effect were then said in the course of the meeting: "6. Accordingly, I telephoned Danny Lagapodis to arrange a meeting between himself, Dennis Radmanovich and me. This was in September or October 1999. Mr Lagapodis arranged a meeting at 11am that same day. The three of us met at Mr Lagapodis' office. Mr Lagapodis explained the purpose of the meeting. I was then invited to voice my concerns. I said words to the following effect: 'I am concerned about the Company finances and that money is not being paid in equal shares in accordance with the agreement in April [or May] 1999'. 'I do not believe I have been given adequate support in the daily operation of the business'. 'I do not believe Dennis Radmanovich is motivated to learn the tiling trade'. 'If Dennis Radmanovich does not wish to put in his share of the money into the Company to enable it to continue, then I will close the business down'. 'Every time I have asked some of the workers something, they tell me that Dennis is saying bad things about me. When I raise this with Dennis, he denies it'. 'Dennis told me that Carol Crimmins had taken money from the cash tin. When I confronted her about it, she denied it and said: 'Now I know what he is getting at''. 'Your wife [I was referring to Tanya] is putting pressure on Dennis because she has a hormonal imbalance and that is causing mental instability'. Mr Lagapodis said: 'Would you like to reply to these allegations?' Dennis Radmanovich said: 'They are all true, apart from what John says about my wife. What do you want me to do?' I said: 'It is entirely up to you. Whatever decision you make is fine by me. I just do not want things to go on the way they are'. He said: 'I wish to continue as a director and partner of the Company'. I said: 'That is all right on condition that all of the issues mentioned in this meeting are addressed fairly quickly, especially that you make funds available to the Company'. He said: 'I will talk to my parents about extending the Company overdraft account to try to equal your share of money that you have loaned to the Company'. Mr Lagapodis said: 'Is everything agreed?' We both replied: 'Yes'" 13 The evidence given by the fifth defendant was that he never agreed that he would guarantee the additional $50,000 of the overdraft, and this would have been contrary to his concerns regarding financing of the company. 14 The fifth defendant gave evidence that not long after the previous conversation, Mr Dennis Radmanovich had spoken to him and said that he had spoken to his parents about the overdraft and that they had agreed to extend the overdraft limit by $50,000 for the first defendant's share. The fifth defendant gave further evidence in his affidavit that some weeks later in mid November 1999 Mr Dennis Radmanovich had a conversation with him in which words to the following effect were said by Mr Radmanovich: 'I am expecting my parents and Mr Lagapodis to come to the shop. My parents are in the area so it is easier to meet at the shop'." His evidence continued: "At approximately 3.00pm, I saw Dennis Radmanovich's parents and Mr Lagapodis arrive at the shop. I could hear that they were discussing the ANZ overdraft account. They moved to the courtyard area of the Company's premises. I was not present and could not hear their conversation. Ten minutes later, I walked nearby and Dennis Radmanovich came up to me. We had a conversation to the following effect: "He said: 'My mother is undecided about extending the company overdraft'. I said: 'I do not want to interfere. It is your decision about the loan and I want no part of it'." Mrs Dara Radmanovich then approached me. We had a conversation to the following effect: "She said: 'It is not easy. It is a lot of money. What if the shop does not do good business, although I am not wishing that on the both of you'. I said: 'I agree. That can happen. This is why you have to make the decision, not me. I have nothing to do with this loan. I do not want to be blamed in any way. This is the amount your son owes to the business. If it is not paid, I will close the company and sue Dennis for the money'. I then walked back into the shop. Approximately five minutes later, the others walked in. I had a conversation with Dennis Radmanovich. Mr Lagapodis was with us." Dennis Radmanovich said words to the following effect: 'We are going to meet again tomorrow at Danny's office. My mum is not one 100 per cent sure in her decision. I think my father will convince her. I am sure she will sign the documents tomorrow'". 15 The fifth defendant's further evidence was that on 8 September 2001 he had a conversation with Mr Danny Lagapodis, which comprised two telephone conversations and included the following: " He said: 'I wanted to contact you because I got a copy of this document you provided to Lawcover. I swear to God and on the life of my kids that I did not collude with the Radmanoviches to pull the wool over your eyes or to anything that was not fair or proper on my part as a lawyer. Do you understand that? I know that you probably have suspicions'. I said: 'It's more than a suspicion, Danny'. He said: 'I know in my own heart what the truth is. You don't have to believe me. I am ringing you up so that you can hear it from me. I have not colluded, I have not participated in anything to do with the Radmanoviches'. I said: 'There are some questions'. He said: 'There may be from your end and in your opinion. I can't change that. You have your reasons for thinking that...I have not benefited from what I have done for you guys. All I have done is try and help you out'." Later in the conversation he said: 'The Radmanoviches are saying that, firstly, Tatyana has signed three guarantees before this with me that Dennis Radmanovich brought home and put them in front of her and that's all she knows. She says, "I know Danny Lagapodis but never saw him on any occasion for him to explain or give any information'. Later in the conversation I said: 'When did I sign the original documents, Danny?' He said: 'On the 19th of November 1999'. I said: 'On the 19th of November, I signed documents? Did you witness that, did you?' He said: 'Yes'. I said: 'Where?' He said: 'At Auburn Street?' I said: 'At Auburn Street?' He said: 'Yeah'. I said: 'In Auburn Street?' He said: 'You were at 30 Auburn Street. At the meeting we had with the Radmanoviches down at Belmore Street. You were in the process of moving. I met up with the Radmanoviches and all of them, the four of them. Remember, you were sitting on the side, three or four metres away, on a little ledge'. I said: 'Yeah, I walked back into the office'. He said: 'That was the 17th of November. You remember that they did not sign those documents then. And in two days later they came into my office. They rang me up and came into my office'. I said: 'But you just told me that they signed at 30 Auburn Street'. He said: 'No, only you signed at 30 Auburn Street that day. You had moved, you were moving. Don't you remember that, John?' I said: 'No'. He said: 'Don't you remember that?' I said: 'No, no, I did not sign any documents on that day'. He said: 'You did John'. I said: 'What documents were they for? You are saying that I've signed them for the full amount, the unlimited amount'. He said: 'I've made notes and I've got notes, all right. So, disregard that. Let's not talk about that'". 16 Mr Lagapodis has given evidence in part by affidavit and in part in chief and was cross-examined. In his affidavit of 12 December 2001, he gave evidence that he was admitted as a solicitor of the Supreme Court on 1 July 1988, and has practised as such since that date. He gave evidence that at approximately 2.30pm on 19 November 1999, a number of the members of the Radmanovich family had arrived for a meeting in his office. Later on that same day, on his affidavit evidence, Mr Lagapodis went to the Auburn Street premises and met Mr Boghos, and they both went to the back of the premises and had a discussion about the new premises for the company. On his affidavit evidence their conversation continued as follows: "Mr Lagapodis: 'Well, we had better discuss these loan documents from the bank'". 17 Mr Lagapodis' evidence was that they both then moved to a small room in the centre and on the northern side of the premises. Mr Lagapodis had the guarantee and the blank form of Solicitor's Certificate with him, together with an Acknowledgment form that his firm had recently adopted as a procedural requirement which they asked prospective guarantors to sign. On his evidence the conversation included words to the following effect: "Mr Lagapodis: 'This is a guarantee and indemnity, and as the name suggests, you guarantee and indemnify the bank for an unlimited and not a specific amount. If you default [the borrower or Tilex or the company] will be responsible for the amount outstanding at that time plus any legal costs and interest, do you understand?'" 18 I interpolate that Mr Lagapodis gave evidence-in-chief to the effect that he could not now recall precisely which he had referred to in terms of using the words, "The borrower, Tilex or the company". 19 Mr Boghos said: "Yes I do". 20 Mr Lagapodis' evidence was that Mr Boghos then signed the guarantee, a copy of which appears at page 138 of the exhibit to which I have referred. He completed the certificate at that same page, and he then crossed it out when he realised that he was also providing a separate certificate. On his evidence, before completing that certificate he asked Mr Boghos for his driver's licence, "so that I can prepare the certificate of independent advice". 21 Mr Boghos then produced his licence and Mr Lagapodis recorded the details on the Solicitor's Certificate to which I have referred. The plaintiff, during the course of the hearing, tendered the driver's licence and a copy of that driver's licence went into evidence. It is correct to say that the driver's licence number shown on the licence which in fact happens to have expired in July 2001 is the same as that which appears on the Solicitor's Certificate, namely number 2439 W T. 22 Mr Lagapodis' further evidence was that he then handed to Mr Boghos a document entitled "Acknowledgment", and said to him words to the effect, "This is the document that I want you to sign to confirm that you have received advice from me". Mr Boghos, on his evidence, looked at the Acknowledgment and signed it. Mr Lagapodis returned to Mr Boghos the signed guarantee and the Solicitor's Certificate, and kept the Acknowledgment for his file. The Acknowledgment is annexure P to the affidavit of Mr Lagapodis of 12 December 2001, and on his evidence, as I have said, it was signed by Mr Boghos. It reads: "Acknowledgment: I, John Boghos' signatory, acknowledge that before I signed the loan and security documents bearing my signature, Danny Lagapodis (solicitor) advised me concerning the documents". 23 The Acknowledgment has the date November 1999 written upon it, which I understand to have been a date which Mr Lagapodis, albeit some time later, wrote onto the document to confirm when it was that he had had the document signed. Mr Lagapodis recalls that 19 November 1999 was a Friday, and that he was traveling overseas on that Sunday, 21 November, which was apparently the first time that he had ever travelled overseas, and was not returning to work until 6 December 1999. It had been at that time and remains his usual practice to make a file note of a meeting when furnishing independent legal advice. However, he omitted in this case to do that upon his return to Australia on 6 December 1999. 24 There are some difficulties with the Standard Guarantee and Indemnity to which I have referred as most of exhibit P 5. The main such difficulty is that there are towards the foot of the Details Page in the bottom right hand section what have been referred to as either squiggles or some form of initial. Those squiggles or initials appear under the typed word "initials of each guarantor and witness". Mr Lagapodis made plain that no initials or squiggles appeared in that box at the time when he witnessed the execution of the Standard Guarantee and Indemnity, and that he was unaware as to whose initials, if initials indeed they were, these appear to be or whose squiggles, as I understood him, if they are something less than initials, these happen to be. 25 Further, it is a fact that there is in evidence, a portion of the materials also part of exhibit MH 1 to Mr Hancock's affidavit of 27 July 2001, which begin at page 79 and run up to page 98, this purporting to be yet another copy of the very same guarantee and indemnity. In this case the document does not include the Solicitor's Certificate. 26 I have already referred to the curious previous circumstances that the original form of the presumably stapled together Standard Guarantee and Indemnity has been dissembled at some time, so that on the evidence of Mr Lagapodis, the document in the form it bears as part of the exhibit P 5 is not in the same form now as it was at the time the document was signed. His evidence was that he kept only the Acknowledgment and left with Mr Boghos the guarantee and indemnity and his own certificate. 27 On the balance of probabilities it seems to me that the evidence of Mr Lagapodis should be accepted as reliable. In relation to the acceptance by the Court of that evidence as reliable, it is relevant to take into account the fact of the Acknowledgment to which I referred. It seems to me that there is also some significance in terms of the reliability of the evidence given by Mr Lagapodis, and in terms of the plaintiff's case, to be attached to the 9 March 2000 letter from the ANZ Banking Group Limited to the Directors, Tilex & Co Ceramics Pty Ltd, being a letter of offer which commenced, "Dear Mr Radmanovich and Mr Boghos", and proceeds to set out a set of facilities by way of an overdraft facility. That document on page 3 under the heading "Security", includes a statement as follows: "Securities for the facilities are as follows: Standard Guarantee and Indemnity unlimited as to amount by Mr John Boghos as guarantor/s on account of Tilex & Co Ceramics Pty Ltd ACN 079375305 (already held)". [emphasis added] 28 Further of relevance is the evidence now before the Court as part of exhibit D 2, which purports to be an acceptance, is addressed to Australia and New Zealand Banking Group Limited, is dated 21 March 2000, and appears to have been signed, as I hold, by Mr Boghos. The same signature appears at the foot of page 7. 29 The second matter to be taken into account, as it seems to me, in terms of the reliability of the plaintiff's case, comprises the exchange of correspondence commencing in early October 2000, and now part of exhibit P 7. That exchange commences with a letter from the solicitor's Warren McKeon Dickson of 5 October 2000 to the ANZ Bank asking for a copy of the guarantee or any other documents evidencing Mr Boghos' liability to the bank. The second sentence of the letter reads: "Our client has instructed us in relation to a debt claimed against him by ANZ Bank pursuant to a purported personal guarantee". 30 The response to the letter, also a part of exhibit P 7, is a letter from the ANZ Bank to Warren McKeon Dickson of 16 October 2000, which encloses the Standard Guarantee and Indemnity, and the Solicitor's Certificate for the customer. The enclosure accords with the document to which I have referred as the guarantee and indemnity in evidence as exhibit P 5. Following the letter from the ANZ Bank, exhibit P 7 includes a further letter from Warren McKeon Dickson solicitors, this time of 31 October 2000 addressed to the ANZ Bank, which simply says, after thanking the bank for its facsimile: "We have written to the co-guarantor in relation to this loan but have yet to hear from Mr Radmanovich's solicitors...". 31 Then, of course, of special significance in a case such as this, one has the circumstance that a solicitor of the Supreme Court has signed a formal document entitled "Solicitor's Certificate", and I have referred to the certificate as part of exhibit P 5. That certificate includes a statement that the solicitor advised the guarantor before any of the documents were signed, the documents described as guarantee and indemnity. 32 During the course of his cross-examination Mr Boghos was asked to accept that in about March 2000 the company had sought to refinance. He seemed to have some difficulty in responding to this question, and as I understood it, had not been aware of certain of the materials which were shown to him in the witness box, or at least presently had no clear recollection of these matters. Likewise, Mr Boghos could not recall receiving a written demand in about October 2000. 33 It is fair to say that Mr Boghos, who appeared for himself on the hearing, has made very plain that he disputes having executed exhibit P 5 in the form to which I have referred. He has sought to give evidence both in his affidavit and through the witness box as to the improbability of his, on the occasion in question, having been prepared and content to sign an unlimited liability by way of the guarantee. 34 Whilst it certainly is the case that on the evidence before the Court certain matters have not been explained, and in this regard I particularly have in mind the time when the squiggles or initials were placed towards the foot of the Details Page, and the time when the document was dissembled so that the Details Page and the cover page were removed from it only to be later stapled together with the balance with the Solicitor's Certificate as part of Schedule 2, it is necessary for the Court to proceed on the balance of probabilities in terms of the evidence actually adduced before the Court. 35 It is inappropriate in the absence of a powerful case to this end which has not in my view been presented nor pleaded for the Court to engage in what must only be a form of speculation as to how it could come about that if the fifth defendant's recollection be correct, the materials which are now in evidence came to be prepared in their present form. Such an inquiry which might extend into questions of misconduct of persons presently unknown by the Court in terms of the putting together of the Details Page, together with the other pages of the subject guarantee, (when the Details Page on Mr Boghos's case would have been extracted from an earlier form of guarantee) would have to include very serious, as it seems to me, misconduct because the date 19 November 1999 squarely appears at the top of the Details Page. 36 In short, in order for the case of Mr Boghos in terms of the probabilities to succeed, it seems to me the Court would have to find serious misconduct by some persons unknown in terms of the incorrect completion of the Details Page by the insertion of the date "19 November 1999", and the substitution in the place of a page which would have limited liability to $50,000, for the "Unlimited Liability" page. The simple fact is that the defendant has not pleaded fraud, and has not, as it seems to me on the balance of probabilities, been able to establish anything remotely akin to that which would have been required for the Court to be in a position to reject the Standard Guarantee and Indemnity, and the evidence given by Mr Lagapodis. 37 In those circumstances the plaintiff has established its case. The Court takes into account exhibit P 6 admitted without objection. My understanding is that the formal requirements of obtaining judgment by the plaintiff have been satisfied by the evidence which has been adduced, including the evidence of Ms Kate Bailey in her affidavit of 27 July 2001, paragraphs 1 to 9 and 10, and annexures J, K and L dealing with the service of the letters of demand, the certificate in relation to the guarantee, exhibit P 6, and the balance of the materials now in evidence tendered by the plaintiff. In those circumstances it is appropriate for the Court to enter judgment as sought by the plaintiff. 38 The orders of the Court are as follows: (1) Order that the fifth defendant pay to the plaintiff the sum of $166,444.97. (2) Order that the fifth defendant pay the plaintiff's costs of the proceedings. (3) Order that judgment be entered accordingly. I certify that paragraphs 1 – 38 are a true copy of the reasons for judgment herein of the Hon. Justice Einstein given on 22 April 2002 ex tempore and revised on 30 April 2002 ___________________ Susan Piggott Associate 30 April 2002 Last Modified: 06/26/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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