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Shoot v Pine Lake Management Services Pty Ltd[2024] QCAT 268

Shoot v Pine Lake Management Services Pty Ltd[2024] QCAT 268

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Shoot v Pine Lake Management Services Pty Ltd [2024] QCAT 268

PARTIES:

DEBRA SHOOT

(applicant)

v

PINE LAKE MANAGEMENT SERVICES PTY LTD

(respondent)

APPLICATION NO/S:

OCL022-24

MATTER TYPE:

Other civil dispute matters

DELIVERED ON:

18 June 2024

HEARING DATE:

29 May 2024

HEARD AT:

Brisbane

DECISION OF:

A/Deputy President Brown

ORDERS:

  1. Application for miscellaneous matters filed 9 May 2024 refused.

CATCHWORDS:

INTERPRETATION – GENERAL RULES AND CONSTRUCTION OF INSTRUMENTS  – Retirement Villages Act 1999 (Qld) – where respondent purported to terminate the residence contract between the applicant and the respondent – where respondent says the applicant no longer has a right to reside in the retirement village and has no standing to bring tribunal proceeding on the basis that the applicant is not a resident  – where the applicant says it would be contrary to the intention of the enabling act to preclude individuals who have had their residence contracts terminated from seeking relief in the tribunal – whether a resident under a residence contract terminated by a retirement village operator may apply to the tribunal for relief

Acts Interpretation Act 1954 (Qld) s 32A

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 4, s 60

Retirement Villages Act 1999 (Qld) s 21, s 22, s 53, s 167, s 169, s 191, s 192

Conde v Guilfoyle [2010] QCA 109 [2009] QCCTRV 2.

Deputy Commissioner of Taxation (NSW) v Mutton (1988) 12 NSWLR 104

Filmer & Others Per Schedule A as in Application lodged on 24 November 2008 v Carlyle Gardens Retirement Village Pty Ltd [2009] QCCTRV 2

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Saunders v Roberts [2016] QCATA 145

Tjungarrayi v Western Australia [2019] HCA 12

APPEARANCES & REPRESENTATION:

Applicant:

Mr M May instructed by Cronin Miller Litigation

Respondent:

Ms E Hoiberg instructed by Thomson Geer

REASONS FOR DECISION

  1. [1]
    This proceeding is about the right of the applicant to reside in a retirement village. The applicant has commenced this proceeding seeking orders, inter alia, that the respondent be prevented from terminating the applicant’s residence contract, removing her from the village and depriving the applicant of her right to reside in the village.
  2. [2]
    The respondent has applied to have the proceeding dismissed on the basis that the applicant is no longer a ‘resident’ of the village and is therefore not entitled to bring the proceeding. If the proceeding is not dismissed the respondent says the matter should be transferred to the Supreme Court.
  3. [3]
    The respondent’s application falls to be determined.
  1. The Retirement Villages Act 1999 (Qld) (‘RV Act’)
  1. [4]
    The RV Act deals with the establishment and operation of retirement villages. It is useful to refer to a number of provisions in the RV Act relevant to the present application.
  2. [5]
    Section 9 provides that a ‘resident’ of a retirement village is a person who has a right to reside in the retirement village and a right to receive 1 or more services in relation to the retirement village under a residence contract.
  3. [6]
    Section 21 defines a ‘retirement village dispute’ as follows:
  1. (1)
    A retirement village dispute is a dispute between a scheme operator and a resident of a retirement village about the parties’ rights and obligations under the resident’s residence contract or this Act.
  1. (2)
    For subsection (1), a retirement village dispute includes a dispute about compliance by a scheme operator or a resident with this Act, whether or not a particular failure to comply is an offence against this Act.
  1. (3)
    In this section—
  1. resident includes a former resident.
  1. [7]
    Section 22 defines a ‘retirement village issue’ as follows:
  1. A retirement village issue is—
  1. (a)
    a retirement village dispute; or
  1. (b)
    an application for an order under sections 169 to 171 or 173.
  1. [8]
    Section 53 deals with termination of a residence contract and relevantly provides as follows:
  1. 53 
    Termination by scheme operator
  1. (1)
    A scheme operator may terminate a resident’s right to reside in the retirement village by giving the written notice required by this section to the resident.
  1. (3)
    The scheme operator must give the resident 2 months notice if the resident’s right to reside in the retirement village is to be terminated on any of the following grounds—
  1. (a)
    the resident has committed a material breach of the contract;
  1. (b)
    the scheme operator reasonably believes the resident has abandoned the resident’s right to reside in the retirement village;
  1. (c)
    the scheme operator and a person who has assessed the resident’s care needs under the Aged Care Act 1997 (Cwlth), section 22.4 reasonably believe the resident’s type of accommodation is now unsuitable for the resident;
  1. Example of accommodation that is now unsuitable for the resident
  1. The resident resides in an independent living unit and now needs help with personal care not normally provided by the scheme operator.
  1. (d)
    the operator is implementing an approved closure plan.
  1. (4)
    The notice must state—
  1. (a)
    the grounds on which the right to reside is being terminated; and<
  1. (b)
    the day by which the resident must vacate the retirement village.
  1. [9]
    Section 169 deals with application to the Tribunal where a resident is threatened with removal, deprivation or restriction of their right to reside in a village:
  1. 169  Resident’s right to apply for an order if threatened with removal, deprivation or restriction
  1. (1)
    This section applies if a resident of a retirement village—
  1. (a)
    is threatened with removal, or is removed, from the village by the scheme operator of the retirement village; or
  1. (b)
    is threatened with deprivation, or is deprived, of the resident’s right to reside in the village under a residence contract by the operator; or
  1. (c)
    is threatened with restriction of, or is restricted in, the resident’s use of the retirement village land under the residence contract by the operator.
  1. (2)
    The resident may apply to the tribunal for an order that the scheme operator do, or not do, a stated thing.
  1. [10]
    Section 191 sets out the orders the Tribunal may make to resolve a retirement village issues. By s 191(1) the tribunal may make the orders the tribunal considers to be just. Section 191(2) sets out a number of examples of orders the tribunal may make which include:
  1. (a)
    an order for a party to the issue to do, or not to do, anything (an enforcement order);
  1. (b)
    an order requiring a party to the issue to pay an amount (including an amount of compensation) to a specified person (a payment order);
  1. (c)
    an order that a party to the issue is not required to pay an amount to a specified person;
  1. (d)
    if the issue is a retirement village dispute—
  1. (i)
    an order setting aside the mediation agreement between the parties to the dispute; or
  1. (ii)
    an order giving effect to a settlement agreed on by the parties to the dispute.
  1. [11]
    Section 192 provides deals with the orders the Tribunal may make in circumstances where a resident has applied under s 169 of the Act:
  1. 192  Tribunal orders under section 169
  1. (1)
    This section applies if a resident applies for a tribunal order under section 169.
  1. (2)
    In making the order, the tribunal must be satisfied that the actual or threatened removal, deprivation or restriction mentioned in the application—
  1. (a)
    is, or would be, a breach of the resident’s residence contract; or
  1. (b)
    is not, or would not be, reasonably justified.
  1. (3)
    Without limiting subsection (2), the tribunal in deciding the application may have regard to the rights and interests of all persons who may be affected if the order is made.
  1. (4)
    The order may be made on the conditions and for the period the tribunal decides is appropriate

Consideration

  1. [12]
    The respondent says:
    1. The applicant materially breached the residence agreement;
    2. On 9 January 2024 the respondent issued to the applicant a termination notice;
    3. The termination notice provided that the residence agreement would be terminated, and the applicant’s right to reside would end, on 15 March 2024;
    4. The termination notice was not withdrawn or set aside prior to taking effect on 15 March 2024;
    5. On and after 15 March 2024 the applicant did not have a right to reside in the village and was therefore not a ‘resident of a retirement village’ for the purposes of s 169 of the RV Act;
    6. The applicant was therefore not entitled to bring the proceeding;
    7. Further, the applicant was not entitled to apply to the Tribunal relying upon s 167 of the RV Act on the basis that, where a dispute falls within s 169 of the Act, the Tribunal has no general jurisdiction under s 167.

Section 169 of the RV Act

  1. [13]
    Central to the respondent’s contention regarding the operation of s 169 of the RV Act is what the respondent says is the proper construction of s 53 of the Act and the right of a scheme operator to terminate a resident’s right to reside in a retirement village. The respondent says that the effect of s 53 is that, if a scheme operator intends to terminate a resident’s right to reside in a retirement village based upon the material breach by the resident of a residence contract, by s 53(3) the scheme operator must give to the resident two months’ notice. Within that two month period, says the respondent, the resident may apply to the Tribunal pursuant to s 169 of the RV Act. During that two month period, says the respondent, the resident has a right to reside in the village. If the resident takes no steps to stay the operation of the termination notice within the two month period and the termination takes effect, the resident no longer has a right to reside in the village, is therefore no longer a resident as that term is defined in s 9, and is not able to avail themselves of s 169 of the RV Act.
  2. [14]
    There are a number of subsidiary strands to the respondent’s argument. Section 169 sits within Division 3 of Part 10 of the RV Act. Division 3 deals with applications to the Tribunal about retirement village issues. A retirement village issue means a retirement village dispute or an application for an order under sections 169, 170, 171 or 171A. An application for an order under any of these sections may be made without the applicant first complying with the pre-proceedings mediation process set out in Part 9 of the Act. The respondent says that retirement village issues, the subject of an application for an order under Division 3 are matters with a degree of urgency. The corollary of this, says the respondent, is that a resident who receives a notice of termination under s 53 is required to act promptly in applying to the Tribunal, and before the expiration of the two month period.
  3. [15]
    The applicant says the respondent’s construction of s 53 and s 169 is inconsistent with basic contractual principles. The applicant says that in circumstances where a party successfully challenges the purported termination of a contract, the result is that the termination was not lawful and never took effect and the contract remains on foot. The validity of the termination of a contract is a matter to be determined by the Tribunal after a full hearing and not summarily.
  4. [16]
    The applicant says that the express language of s 169(1)(b) makes clear that the legislature intended the Tribunal to have jurisdiction where the validity of a termination notice is in dispute, including after the notice purports to take effect. The applicant says that s 169 uses broad language intended to cover a wide range of situations. The applicant says that in circumstances where a resident disputes the validity of a termination notice, the term ‘resident’ in s 169 should be construed as referring to the status of the person prior to, or but for, the contested deprivation of the right to reside in the village. The applicant says that to construe s 53 and s 169 as requiring an application by a resident within the two month period before a termination takes effect would be to impose a time limit not expressed in s 169. Such a construction would also be contrary to the objects and intent of what is consumer protection legislation.
  5. [17]
    As I have observed, applications to the Tribunal regarding ‘other retirement village issues’ may be made without the applicant first undertaking the pre-proceedings mediation process set out in Part 9 of the RV Act. The ‘issues’ which may be the subject of an application to the Tribunal include:
    1. Section 169: where a person is threatened with removal or is removed from the village; or is threatened with the deprivation or is deprived of the right to reside in the village; or is threatened with restriction of or is restricted in the resident’s use of the village;
    2. Section 170: where a scheme operator contravenes s 84 or s 86 of the RV Act[1] and the resident is materially prejudiced by the contravention;
    3. Section 171: where a scheme operator fails to comply with former section 58(2) or section 59A(4), 60(2), 65 or 67(2) of the RV Act[2] and the resident is materially prejudiced by the contravention;
    4. Section 171A: where a scheme operator seeks to extend the time by which the operator must pay the exit entitlement of a former resident under section 63(1)(c) or complete the purchase of a former resident’s freehold property under a contract under section 63A.
  6. [18]
    It may be accepted that not all of the ‘issues’ within Division 3 involve any particular urgency obviating compliance with the pre-proceeding mediation process. It may also be accepted that where a resident is threatened with the deprivation, or is deprived, of the right to reside in a village there may indeed be an element of urgency. In the Explanatory Note to the original Bill, it is stated that clause 168 (now s 169) ‘allows the resident to make an urgent application to the tribunal without the need to follow the usual three-step dispute resolution procedure.’ Having said this, for the following reasons I conclude that the RV Act does not impose a time limit as argued for by the respondent in respect of applications for orders falling within s 169.
  7. [19]
    The starting point in considering the respondent’s application is to ascertain the meaning of s 169 of the RV Act and the term ‘resident’ used in the section. Section 169 must be construed according to its words and consistently with the language and purpose of all the provisions of the RV Act.[3] In interpreting a provision meaning must be given to every word.[4] The duty of a court or tribunal is to give the words of the provision the meaning the legislature is taken to have intended them to have which will ordinarily, but not always, correspond with the grammatical meaning of the provision.[5]
  8. [20]
    Section 169(1)(b) refers to circumstances in which a resident is threatened with deprivation, or is deprived, of the resident’s right to reside in a retirement village. The section clearly contemplates two distinct scenarios: one where the resident has not yet been deprived of the right to reside and one where the resident’s right to reside has been deprived. Where a retirement village operator gives notice to a resident in accordance with s 53(3) a resident is threatened with the deprivation of the right to reside in the village. Where a residence contract is terminated, a resident will have been prima facie deprived of the right to reside in the village. The plain words used in s 169(1)(b) contemplate an application to the Tribunal by a resident after the purported termination of a residence contract. It would therefore be incongruous to construe ‘resident’ in s 169 as being confined to an individual whose residence contract has not yet been terminated. Such a construction would contradict the plain meaning of the words used in s 169.
  9. [21]
    Accepting the respondent’s construction of s 169 would also be contrary to orthodox contractual principles. I accept the applicant’s submission that, in circumstances where the validity of a purported termination by a scheme operator is successfully challenged by a resident, the purported termination will be of no effect and the residence contract will remain on foot with the consequence that the resident’s right to reside in the retirement village continues unimpeded.
  10. [22]
    As has been referred to earlier in these reasons, the respondent says that a resident who has been deprived of the right to reside in a retirement village, but who is challenging that deprivation, is nevertheless not a ‘resident’ within the meaning of s 9 of the Act. For the reasons explained, I have concluded that such a person is a ‘resident’. There is an additional basis for concluding thus. The definition of ‘resident’ must be read either expressly or impliedly as subject to the qualification ‘unless the contrary intention appears’ elsewhere in the RV Act.[6] Section 32A of the Acts Interpretation Act 1954 (Qld) provides that definitions in or applicable to an Act apply except so far as the context or subject matter otherwise indicates or requires. For the reasons I have expressed, s 169 permits an application to the Tribunal by a resident who has been deprived of the right to reside in a retirement village. All of the words in s 169(1)(b) must be given work to do. To give the meaning of ‘resident’ in the section that which the respondent contends for would render meaningless the words ‘or is deprived’. On the respondent’s construction, such a person, having been deprived of the right to reside in a retirement village, would not be a ‘resident’ as that term is defined in s 9.  Section 169(1)(b) clearly would not work as intended on such a construction. It follows that the provisions of the RVA Act to which I have referred are a clear expression of legislative intent that a ‘resident’ for the purposes of s 169 is not confined to a person with a current right to reside in a retirement village but encompasses a person who challenges having been deprived of that right.
  11. [23]
    Nor do I accept the respondent’s contention that the RV Act imposes a 60 day ‘window’ within which a resident who receives a termination notice must apply to the Tribunal for an order under s 169. Firstly, I do not accept the respondent’s contention as to the meaning of a ‘resident’ in s 169(1)(b). Secondly, there is nothing in the RV Act that suggests the legislature intended to impose a de facto time limit as submitted. The imposition of such a draconian time limit would be contrary to the objects of the RV Act which include promoting consumer protection and fair trading practices in operating retirement villages by, inter alia, declaring particular rights and obligations of residents and scheme operators[7] and to provide for processes for resolving disputes between residents and scheme operators.[8] The respondent says that a failure to construe the provision as it contends for would leave ‘open ended’ the time within which a resident might bring an application under s 169. I reject this submission. Firstly, common sense dictates that a resident who has been threatened with the right to reside in a retirement village or whose right to reside has been deprived is likely to act with celerity.  Secondly, by operation of s 38(4) of the Acts Interpretation Act 1954 (Qld) if no time is provided or allowed for doing anything in an Act, the thing is to be done as soon as possible. While not operating as a limitation period per se, a failure by a resident to act promptly may leave a proceeding liable to be dismissed pursuant to s 47 or s 48 of the QCAT Act.
  12. [24]
    For the foregoing reasons I conclude that the applicant is entitled to bring the present proceeding.  In light of this conclusion, and notwithstanding the compliance by the applicant with the pre-proceeding mediation provisions of the RV Act, it is unnecessary for me to consider further the application of s 167 of the Act.

Transfer to the Supreme Court

  1. [25]
    The respondent says, if the Tribunal has jurisdiction to decide the proceeding, the matter should be transferred to the Supreme Court. The respondent says:
    1. Unless the applicant vacates the residence unit, the respondent’s only option will be to institute proceedings for specific performance in the Supreme Court in respect of the applicant’s obligations under the residence contract and specifically clause 12.7 requiring the applicant to give vacant possession of the unit upon termination of the contract;
    2. In the event that proceedings for specific performance are brought in the Supreme Court by the respondent, the applicant will argue that the termination notice is invalid, directly overlapping with the relief sought by the respondent in this proceeding;
    3. A Supreme Court proceeding by the respondent will involve a consideration of many of the same issues as are proposed to be raised by the applicant in this proceeding;
    4. There is no utility in having the same matter based on the same evidence being heard in two different jurisdictions;
    5. The applicant’s proceeding will first need to be heard and determined before the Tribunal before the respondent could have an application for specific performance heard in the Supreme Court;
    6. It would be efficient for all matters relating to the respondent’s termination of the residence agreement to be heard in the one forum with jurisdiction to deal with all matters requiring determination.
  2. [26]
    In response the applicant says:
    1. The Tribunal has the power to make orders requiring the applicant to vacate the premises in the event the respondent’s purported termination is found to be valid. Section 191 of the RV Act gives the Tribunal broad powers to make the orders the tribunal considers necessary to resolve a retirement village issue, including an order for a party to do, or not do, anything;
    2. Transferring the proceeding to the Supreme Court would deprive the applicant of the benefit of the availability in the Tribunal of relief under the RV Act;
    3. Transferring the proceeding would deprive the applicant of a Tribunal hearing which would be contrary to the objects of the RV Act;
    4. Transferring the proceeding to the Supreme Court would expose the applicant to the risk of an order for costs.
  3. [27]
    Central to the respondent’s argument is what the respondent says is the lack of jurisdiction in the Tribunal to make appropriate orders should the respondent prevail in the proceeding. Specifically, the respondent says that the Tribunal does not have the power to require the applicant to give vacant possession of the unit. As to the power to make orders found in s 191(2) the respondent says that there is distinction between a grant of power to order relief in an enabling Act and a general power conferred in the discharge of the tribunal’s jurisdiction conferred elsewhere by the Act. The respondent cites the decision in Filmer & Others Per Schedule A as in Application lodged on 24 November 2008 v Carlyle Gardens Retirement Village Pty Ltd[9] where the former Commercial and Consumer Tribunal (CCT) stated, ‘…section 191 is not a grant of power in itself, but it confers general power in discharge of the Tribunal’s jurisdiction conferred elsewhere in the RVA or as conferred by the CCT Act.’ In Filmer the CCT held that enforcement orders, such as those referred to in s 191 of the RV Act, were in the nature of injunctive relief or orders for specific performance. However, the CCT held that the tribunal did not otherwise have jurisdiction in respect of the particular dispute the subject of the proceeding. As a consequence, the tribunal was not required to determine the scope of the powers conferred by s 191. 
  4. [28]
    The powers conferred by s 191 of the RV Act upon the Tribunal are broad – to ‘make the orders the tribunal considers to be just to resolve’ the dispute. The orders referred to in s 191(2) are expressed to be by way of example. Section 14D of the Acts Interpretation Act 1954 (Qld) provides that if an Act includes an example of the operation of a provision, the example is not exhaustive and does not limit, but may extend, the meaning of the provision. The application of s 14D arguably extends to s 191(2).[10] The power conferred by s 191(2)(a) may extend, for example, to granting relief in the nature of specific performance. In the context of an application under s 169 of the Act, which contemplates relief sought by an individual who has been deprived of their right to reside in a retirement village, the power conferred by s 192(2)(a) when considered with the power conferred by s 191(1), would arguably extend to the making of a declaration as to the validity of a termination notice[11] and, if the notice was found to be valid, orders for the individual to vacate the accommodation unit and necessary consequential orders under Part 3 of the Act. To this extent, s 191(2)(a) does not confer upon the Tribunal an equitable jurisdiction.[12] Rather, the powers conferred find their source in the statute. It may be that in exercising those powers, the Tribunal may take into account the principles applicable to granting specific performance. This is not however an issue I am required to determine for the purposes of the dealing with the present application.
  5. [29]
    The construction I prefer regarding the ambit of the powers conferred by s 191 is consistent with a number of other provisions in the RV Act. Section 192 deals with orders the Tribunal may make under s 169. Section 169(2) provides that a resident may apply to the tribunal for an order that the scheme operator do, or not do, a stated thing. The language of s 169(2) is consistent with that used in s 191(2)(a). In deciding an application under s 169, the tribunal may have regard to the rights and interests of all persons who may be affected if the order is made.[13] If the Tribunal declines to make an order pursuant to s 169(2) in favour of a resident, the powers conferred by s 191 may be exercised in favour of the scheme operator in an appropriate case. This construction is also consistent with the main objects of the RV Act which include promoting consumer protection and fair trading practices in operating retirement villages[14] and the objects of the Act which include providing for processes for resolving disputes between residents and scheme operators.[15] These processes include recourse to the Tribunal where proceedings are required to be dealt with in a way that is accessible, fair, just, economical, informal and quick.[16] The Tribunal is also required to ensure proceedings are conducted in an informal way that minimises costs to parties, and is as quick as is consistent with achieving justice.[17]
  6. [30]
    It follows that the Tribunal has jurisdiction to comprehensively deal with the dispute and the transfer of the proceeding to the Supreme Court is neither a necessary nor a desirable outcome.

Conclusion

  1. [31]
    The application is refused.

Footnotes

[1]  Provision of information documents to a prospective resident; misleading or deceptive conduct by a scheme operator.

[2]  Provisions relating to the sale of an accommodation unit.

[3]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, at 381, 382, 384 (footnotes omitted)

[4]  Ibid.

[5]  Ibid.

[6] Tjungarrayi v Western Australia [2019] HCA 12.

[7]  RV Act, s 3(1).

[8]  Ibid, s 3(2)(e).

[9]  [2009] QCCTRV 2.

[10] Statutory Interpretation in Australia 10th edition 2024, at 4.102

[11] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 60(1)(b).

[12]  See for example Saunders v Roberts [2016] QCATA 145 where the Appeal Tribunal considered the tribunal’s powers to order rectification work under the QBCC Act which was an order in the nature of the specific performance of a construction contract.

[13]  RV Act, s 192(3).

[14]  RV Act, s 3(1).

[15]  RV Act, s 3(2)(e).

[16]  QCAT Act, s 3(b).

[17]  QCAT Act, s 4(c).

Close

Editorial Notes

  • Published Case Name:

    Shoot v Pine Lake Management Services Pty Ltd

  • Shortened Case Name:

    Shoot v Pine Lake Management Services Pty Ltd

  • MNC:

    [2024] QCAT 268

  • Court:

    QCAT

  • Judge(s):

    A/Deputy President Brown

  • Date:

    18 Jun 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Conde v Gilfoyle [2010] QCA 109
1 citation
Deputy Commissioner of Taxation v Mutton (1988) 12 NSWLR 104
1 citation
Filmer & Ors v Carlyle Gardens Retirement Village Pty Ld [2009] QCCTRV 2
3 citations
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
2 citations
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
2 citations
Saunders v Roberts [2016] QCATA 145
2 citations
Tjungarrayi v Western Australia [2019] HCA 12
2 citations

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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