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- Unreported Judgment
Payne v Koukides QCATA 168
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Payne v Koukides  QCATA 168
GRAYHAM ROSS PAYNE
TRUSTEE FOR VASSILIOUS KOUKIDES TRUST
16 December 2019
13 December 2019
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where tenancy terminated and warrant of possession ordered to issue – whether stay should be granted until application for leave to appeal or appeal is determined – where applicant claimed to be in occupation pursuant to compromise of other proceedings – application refused
Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 58(1), 123
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 351
Arthur & Anor v Husheer & Anor; Gautron & Anor v Husheer & Anor  QCATA 146
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Hessey-Tenny & Anor v Jones  QCATA 131
REASONS FOR DECISION
- The applicant is in possession of two houses in Browning Street, South Brisbane, which are owned by the respondent trustees of the estate of the late Vassilious Koukides. While he resides at the house at number 58, the applicant also lets out some rooms in that house. He has also let the house at number 62 to tenants. He has not paid rent for approximately two years and has not complied with orders made in other Tribunal proceedings for payment of some tens of thousands of dollars in outstanding rent on each property.
- The applicant asserts that he has been entitled to possession of both properties, rent-free, since the respondent consented to orders of the Supreme Court of Queensland in other proceedings in November 2017.
- On 25 October 2019, a Tribunal adjudicator ordered that tenancy agreements for both properties be terminated and that warrants of possession issue. The applicant filed applications for leave to appeal or appeal and for stays of the adjudicator’s decisions. The applications for leave to appeal or appeal were initially treated as applications for re-opening, which were refused on 11 September 2019, and fresh orders, including reinstatement of orders for warrants of possession, issued.
- These reasons concern the application for a stay of the orders of 11 September 2019 relating to the property at number 62 Browning Street and applications for adjournment of the hearing of that stay application. I have provided separate reasons in relation to number 58 Browning Street. As the matters are substantially inter-related, and were heard together, both matters are dealt with in each set of reasons. However, there are significant differences between the orders for each property.
Applications for adjournment
The 6 December 2019 hearing
- The stay applications were originally listed for an oral hearing on 6 December 2019 at 11:30 am.
- At or around 1:07 pm on 5 December 2019, the applicant filed applications for adjournment of the hearing. There were two bases for the applications. The first was that the applicant’s solicitor, Mr Nott, was required to be in other courts on the morning of the hearing. The second was that the applicant said he been advised that he would not be able to obtain a transcript of the hearing on 25 October until 17 December 2019. The applications sought an adjournment until not before 20 December 2019.
- Directions were made (1) that the application for an adjournment would be determined as a preliminary matter at the hearing on 6 December 2019; (2) granting the applicant leave to be legally represented at the hearing in accordance with his application filed around the same time as the application for an adjournment; and (3) granting the parties leave to appear by telephone.
- When the matter came on for hearing before me on 6 December 2019, one of the trustees, Mr G Koukides, appeared in person, representing the trustees collectively in accordance with leave granted by the Tribunal. Mr Nott appeared by telephone.
- Mr Nott advised that the first ground for an adjournment no longer applied as he was no longer required in court elsewhere and had returned to his office at Newstead. I pause here to note that, while Mr Nott had acted for the applicant in various proceedings in the Tribunal and in other courts, no application for leave for the applicant to be legally represented had been received in the current matter until 5 December 2019.
- In relation to the second ground, Mr Nott advised that he had received an audio recording of the adjudicator delivering her reasons for the decisions on 25 October 2019 and had listened to it ‘multiple times’. However, he said that he required a transcript of the full hearing to determine what findings of fact had been made by the adjudicator.
- I was concerned about the proposed adjournment of the hearing until 20 December 2019. With the proximity of the Christmas period and being aware of the high demand for Tribunal hearing rooms, it seemed to me that in all likelihood such an adjournment would likely result in the applications not being heard until the new year.
- Having listened to the full recording of the 25 October 2019 hearing myself in preparation for the 6 December 2019 hearing, I was aware that it was a relatively short one – not surprisingly, since the applicant also failed to appear at that hearing – lasting less than an hour. Further, a substantial part of the hearing time was taken up with the delivery of the adjudicator’s reasons for which Mr Nott already had an audio recording which he had heard ‘multiple times’.
- Over the opposition of Mr Koukides, I granted an adjournment until 13 December 2019. This, I thought, might allow the applicant to obtain an audio recording of the balance of the hearing, which might be able to be obtained more quickly than a transcript, although transcripts can be obtained quickly on payment of a fee. I also indicated that if the applicant experienced any difficulty in that regard, contact should be made with the registry as I did not want to be dealing with another late adjournment application on 13 December 2019.
- The decision to allow that adjournment might be thought to have been generous to the applicant at the expense of the respondent and the Tribunal’s resources. Reasons are required to be provided to parties to proceedings in the Tribunal for final decisions, but that requirement may be satisfied by providing an audio recording of the reasons, which was provided to the applicant. Mr Nott had, as mentioned, the benefit of hearing the adjudicator’s short reasons on the audio recording ‘multiple times’ before the 6 December 2019 hearing.
- It is true that the applicant did not have the benefit of knowing what transpired before the adjudicator delivered her reasons, but any disadvantage from that is of the applicant’s own making since the applicant failed to appear at the hearing. As noted further below, it seems apparent that the applicant was not incapable, for health or other reasons, of attending the hearing.
The 13 December 2019 hearing
- It appears that either I am mistaken in my recollection or the applicant misheard my comments, as the applicant proceeded to contact the Tribunal registry multiple times through the afternoon of 6 December 2019 seeking a compact disc of the 25 October 2019 which he apparently understood I indicated the Tribunal would make available. An email was sent to the applicant’s solicitor late on 6 December 2019 explaining the Tribunal’s expectation that the applicant would approach Auscript, the court recording and transcribing contractor, in relation to obtaining an audio recording.
- Apart from an email from the applicant to the registry on 9 December 2019 asserting the importance of obtaining the full audio recording, nothing further was heard from the applicant or Mr Nott until 2:28 pm on 12 December 2019 when an email from Mr Nott arrived enclosing another application for an adjournment.
- The ground on which this application sought an adjournment was that the applicant had only received a transcript of the 25 October 2019 hearing at 8:18 am on 12 December 2019 and had not been able to properly prepare for the hearing. I respectfully reject this ground.
- When earlier adjournments were sought, it was emphasised that Mr Nott had acted in all of the various litigation between the parties for some years. Mr Nott had also had the opportunity to review the audio recording of the 25 October 2019 hearing. With the benefit of his background knowledge of the matter and the audio recording of the adjudicator delivering her reasons, Mr Nott could have been well prepared for the hearing and then checked the relatively minimal additional part of the transcript between its arrival early on 12 December 2019 and the 13 December 2019 hearing. Indeed, it is to be expected that he would have done so in preparation for the 6 December 2019 hearing as no adjournment of that hearing was granted in advance of the scheduled hearing time.
- Then, on 13 December 2019, at 7:44 am, the Tribunal received from Mr Nott another email putting forward a further ground for the requested adjournment that he was, again, required to be in another court. The email attached a copy of an application in an apparently unrelated matter returnable in the District Court at 10:00 am on 13 December 2019 which Mr Nott’s email said had been ‘short served’. Surprisingly, it does not appear that Mr Nott copied this material to the respondent.
- Mr Nott also said that he requested a consent adjournment of that matter but the request was not responded to. No detail was provided regarding when the application was received, whether it was anticipated or when the request was made to the other party to consent to an adjournment. The application is for that proceeding to be struck out for want of prosecution and bears a court stamp indicating that it was filed on 11 December 2019. Also attached to Mr Nott’s email was a copy of an email dated 12 December 2019 at 6:06 pm from the Supreme Court Library attaching the Law List for 13 December 2019.
- Mr Nott also advised in his email that his firm is a ‘single sole practitioner and no one else is available to appear in either jurisdiction in his place’. If any consideration was given to engaging counsel or another practitioner in either matter, that was not apparent from the material attached to the application.
- On the last three occasions on which hearings have been scheduled in these matters and the matters below, late adjournment requests on the basis of Mr Nott being unavailable have been received. Shortly before the hearing on 25 October 2019, the applicant sought an adjournment because Mr Nott was ‘on leave’ for two days. No explanation was provided of whether the ‘leave’ was due to, for example, medical or recreational reasons, or any other details. For the hearing on 6 December 2019, as mentioned, an application for an adjournment was received on the ground that Mr Nott was required in two other courts. And then for the 13 December 2019 hearing, again Mr Nott was not available because of a requirement to be in another court at 10:00 am.
- When the matter came on for hearing on 13 December 2019, without an adjournment having been granted, there was no appearance by Mr Nott or the applicant or anyone else on his behalf. The Tribunal’s hearing support officer telephoned the mobile telephone number provided by Mr Nott but the call diverted to message bank. Had Mr Nott answered, I might have inquired how long he expected to be in the District Court and entertained a short adjournment to allow the hearing to take place, if not at the scheduled time at least on the scheduled date.
- In deciding to refuse the adjournment and proceed in the absence of the applicant, I was mindful of a number of factors. The first is the respondent’s entitlement to the fruits of the decision below. The second is that a decision not to grant the adjournment would be a serious one, since potentially an outcome could be the reinstating of the orders for warrants of possession, a factor exacerbated by the impact the time of year might have on the applicant’s ability to find accommodation elsewhere.
- On the other hand, as noted, this was the third occasion in a row, in the space of a little over a month, on which late adjournments had been sought because of Mr Nott’s unavailability. How could I have any confidence that, if the hearing were adjourned again to another date, there would not be a further clash? Additionally, a further adjournment would in all likelihood have resulted in the interim stays being continued into the new year.
- The modern approach to case management takes into account not only the interests of the parties but also the broader public in the efficient administration of justice. While this factor is important, in deciding whether to grant the adjournment the circumstances as outlined above I had particular regard to the inconvenience and cost that would be caused to the respondent of further delay, including their inability to protect the interests of beneficiaries by generating rent from other tenants, but weighed against the potential prejudice to the applicant. In respect of the 58 Browning Street property that includes, if the interim stay is not continued, the need for the applicant to obtain alternative accommodation.
- I also took into account the materials available to me to assist in deciding the stay applications. While I ultimately did not make formal directions at the 6 December 2019 hearing because of uncertainty about when a recording/transcript might become available, I did indicate to the parties that the Tribunal would benefit from written outlines of submissions in advance of the resumed hearing. Mr Nott advised that would be possible and that he had already put in some written submissions. Mr Nott knew of the requirement to be in the District Court by at least 12 December 2019. He did not file any further written outline which, if received by the morning of the hearing, could have been considered. However, I had the benefit of the written submissions attached to the stay applications filed shortly after the adjudicator’s decisions of 25 October 2019.
- Further, the applicant had ample opportunity to file submissions. A direction that written submissions be lodged by 18 November 2019 or advice be provided that no further submissions would be filed was issued. The applicant sent an email to the Tribunal on 15 November 2019 but it did not address the principles applicable to stay applications.
- Weighing up all these matters, I was not convinced that it would be in the interests of justice to allow the applicant a further adjournment. The hearing therefore proceeded in the absence of the applicant.
The stay applications
- The current President of the Tribunal, Daubney J, sitting as the Appeal Tribunal, has stated that where an appellant requires leave to appeal, a stay should only be ordered in advance of leave being granted in ‘exceptional circumstances’. However, just as his Honour found himself on that occasion, I would reach the same conclusion by reference to what his Honour referred to as ‘conventional principles’ relating to the granting of stays pending appeal, which I understand to be:
- (a)The test is simply expressed as whether the case is an appropriate one for a stay.
- (b)The Tribunal has a wide discretion but there are some traditional factors to be taken into account, namely whether:
- there is a good arguable case on the appeal;
- the applicant will be disadvantaged if the stay is not granted;
- there is some compelling disadvantage to the respondent if the stay is granted which outweighs the disadvantage that would be suffered by the applicant.
- (c)Where a preliminary assessment is able to be made that the prospects of success on appeal are poor, this will weigh against the grant of a stay.
- (d)However, where an applicant’s case is at least arguable, then the focus of consideration necessarily shifts to questions of competing advantage and disadvantage if the stay be granted or not.
- (e)Where it is apparent that unless a stay is granted an appeal will be rendered nugatory, this will be a substantial factor in favour of the grant of a stay.
- Further, since leave to appeal has not been granted, I am determining this stay application under s 58(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). In accordance with that provision, the Tribunal, which includes the Appeal Tribunal, ‘may make an interim order it considers appropriate in the interests of justice’. The ultimate question is therefore whether it is in the interests of justice to make an order.
Does the applicant have a good arguable case?
- Because the applicant requires leave to appeal, this factor must be considered by reference to both whether there is a good arguable case for leave to appeal and, if leave were to be granted, for the applicant to succeed in the appeal. The factors for consideration in whether to grant leave to appeal are well settled: Is there a reasonably arguable case of error in the decision? Is there a reasonable prospect that the applicant will obtain substantive relief? Is leave necessary to correct a substantial injustice caused by some error? Is there a question of general importance on which further argument and decision of the Appeal Tribunal would be to the public advantage?
- The final two factors may be dealt with quickly. The applicant has been in possession of the premises for approximately two years without paying rent, even though he is subletting part of one house and subleasing the other. It difficult to see any substantive injustice arising, unless it could be said that he has an entitlement to the premises without rent under a contractual right. As I conclude below, there is little basis on which such an argument could be made on the material before the Tribunal below or the Appeal Tribunal. Nor do the applications raise any matter of general importance.
- This leaves for consideration whether there is a reasonably arguable case of error in the adjudicator’s decision and, if so, whether there is a reasonable prospect of the applicant obtaining substantive relief to correct the error.
- The applicant seems to make two complaints.
Denial of adjournment of 25 October 2019 hearing
- First, he complains that he was denied the adjournment sought shortly before the 25 October 2019 hearing on the basis that Mr Nott was ‘on leave’. Decisions on whether to grant an adjournment are discretionary. The decision made by the adjudicator who considered the first application for an adjournment was against the background that Mr Nott had not sought or been granted leave to appear when the application was made. The application also contained minimal background as already noted. No material or explanation was provided by Mr Nott himself. Similar considerations were before the adjudicator who, in the course of conducting the 25 October 2019 hearing, considered and denied a second adjournment application on similar grounds.
- In the circumstances, the prospects of those decisions on the adjournment applications lending significant support to an application for leave to appeal the decisions below are, in my view, not strong.
- The substantive ground raised by the applicant appears to relate to submissions that the applicant was entitled to possession of the properties for the last two years without paying rent. This state of affairs is said to arise out of an alleged compromise reached in ongoing proceedings in Supreme Court of Queensland.
- The applicant commenced proceeding number 121158 of 2017 in that Court on 16 November 2017. The substantive relief sought was a declaration of parentage that the relationship of parent and child exists between the applicant and the deceased.
- By way of interim relief, the applicant sought orders that:
- The Respondent(s) . . . be restrained by injunction until the later of 3 March 2018 or the resolution of any application brought by the Applicant pursuant to section 41 of the Succession Act 1981 (Qld), from taking any steps pursuant to or consequent upon:-
- A warrant of possession or other orders in Queensland Civil & Administrative Tribunal Proceedings Numbered 1871 of 2017;
- A warrant of possession or other orders in Queensland Civil & Administrative Tribunal Proceedings Numbered 1975 of 2017;
- Notice to leave (Form 12) . . . dated 18 September 2017 in respect of the property 58 Browning Street, SOUTH BRISBANE . . .; and
- The Respondent(s) . . . be restrained by injunction until the later of 3 March 2018 or the resolution of any application brought by the Applicant pursuant to section 41 of the Succession Act 1981 (Qld), from taking any steps pursuant to or consequent upon:-
- An order [to facilitate DNA testing].
- The Applicant’s application for a declaration [of parentage] be adjourned to a date to be fixed.
- In addition to the application for a declaration of parentage, the applicant, in separate proceedings in the Supreme Court of Queensland, commenced proceedings on 1 March 2018 for further provision from the deceased’s estate. Whether the applicant has standing in those proceedings appears to depend upon the outcome of a further proceeding between the parties in another state.
- The alleged compromise is said to arise out of a letter from the respondent’s solicitor dated 22 November 2017 to the applicant’s solicitor. Because of what is said to flow from the terms of that letter, it is necessary to set it out in full:
We refer to your client’s application returnable in the Supreme Court at Brisbane on Tuesday 28 November 2017.
On behalf of our clients, we make the following offer on an open basis:
- Our clients will consent to the orders requested in 2. a and b of your clients (sic) application.
- That your clients (sic) application returnable next Tuesday, 28 November 2017 be adjourned to a date to be fixed or agreed upon.
- That our clients (sic) application before QCAT returnable 12 December 2017 be adjourned to 30 January 2018.
- That your client remain in occupation of the premises situated at 58 and 62 Browning Street West End until 30 January 2018 pending determination of your clients (sic) application. [Emphasis added by applicant.]
We believe, that the above proposal would then allow your client to undertake the DNA testing required to ascertain whether or not he is in fact a child of the deceased.
This would also allow our respective clients to reach agreement as to arranging for the rental of a one-bedroom unit in West End/South Brisbane for your clients (sic) occupation.
Should your client not accept the above proposal we shall tender this letter to the court when arguing costs.
We request your response by 4 PM Thursday, 23 November 2017.
- The applicant’s submissions emphasise the underlined words.
- Consent orders were made to give effect to parts 1 to 3 of the offer. The applicant’s submissions assert that the acceptance of the offer, along with the parties’ actions consistent with it, evidence a compromise in these terms:
The lease on terms had, at that time, come to an end. So to (sic) did the obligation to pay rent. A new contract had been founded. The terms were simple, the Respondent [here the applicant] would remain in occupation of the premises pending resolution of the applicants (sic) application. The Respondent would not press paragraph a of his originating application.
- There are several difficulties with this submission:
- (a)Contrary to the applicant’s submissions, the offer was not that the applicant remain in possession indefinitely pending determination of the proceedings for a declaration of parentage. The offer in its terms was that the applicant remain in possession ‘until 30 January 2018 pending determination of your clients [sic] application’.
- (b)There was no agreement that the respondents would not pursue warrants of possession or notices to leave in respect of the properties. The interim orders sought to that effect were not covered by the offer or the consent orders. In any case, the interim relief sought in proposed order 1 related to other proceedings in the Tribunal, albeit relating to the same premises, but not the proceedings to which these applications for leave to appeal or appeal relate.
- (c)There is simply nothing in the terms of the offer to suggest that the leases of the properties, which the submissions acknowledge were in place before the alleged compromise, were terminated and new contracts entered into permitting rent-free occupation. That would be inconsistent with orders made in other proceedings in the Tribunal, which are not the subject of any appeal, for compensation for non-payment of rent. It would also be an extraordinary contract for the applicant to remain in possession without paying rent but continue to receive rental from subletting.
- For completeness, I note this is not a case in which the adjudicator failed to take into account relevant submissions. It is apparent that the adjudicator was aware of but did not accept the submission, primarily because the alleged agreement for the applicant to be in occupation without paying rent was not documented as would be expected for such an agreement. The adjudicator also observed, with respect correctly, that the family provision proceedings do not assist the applicant in respect of these tenancies as there is nothing to indicate that, if successful, they would result in these properties being made available to him.
- I am not required to decide the issues that would arise if the Appeal Tribunal were to grant leave to appeal, but rather whether the applicant would have a reasonably arguable case. For the reasons indicated above, I consider that the applicant has poor prospects of establishing that the alleged compromise has the effects submitted by the applicant. That being the main basis of the applicant’s contentions, I consider that the applicant does not have a reasonably arguable case for leave to appeal because in any appeal the applicant would have poor prospects of obtaining substantive relief. It follows that I also consider that if leave were to be granted, the applicant would not have a reasonable argument to succeed in the appeals.
The competing advantage and disadvantage of granting or refusing a stay
- Before turning to consider the respective impacts on the parties if a stay were to be granted or refused, it may be useful to set out some further background.
- It is tolerably clear that the purpose of the consent orders referred to above and the underlying agreement was to allow time for the proposed DNA testing to occur. The applicant did not take the necessary steps for that to occur expeditiously. In fact, not until 15 June 2018 and not before the respondents twice filed applications for dismissal for want of prosecution of the applicant’s application for family provision, the second at least resulting in a costs order against the applicant on an indemnity basis.
- While for reasons that were not explained to me, this Supreme Court of Queensland proceeding (number 121158 of 2017) remains on foot, it has now been held in the finding in the proceeding in another state that the deceased was in fact the applicant’s father. That finding is found in reasons for interlocutory orders delivered on 3 June 2019, well before the hearing on 25 October 2019.
- Resolution of the application for family provision is unlikely to occur expeditiously either. The respondents filed another application for dismissal of that proceeding for want of prosecution in December 2018. The application was dismissed but costs awarded against the applicant’s solicitor on an indemnity basis. Further progress of the family provision application now seems dependent on the outcome of the proceeding in another state. That proceeding was delayed by the applicant’s opposition to the respondents’ application to join the proceedings and in relation to which the court had ‘little doubt that the executors are both proper, and necessary, parties’.
- The respondent trustees have duties as trustees of the two properties as part of the trust estate. Rent has not been paid for some two years, notwithstanding orders of this Tribunal in other proceedings, and because of the applicant’s continued possession of the properties the respondent has not been unable to obtain a return on the properties by renting them to others. There is a substantial and growing amount of outstanding rent on both properties and no apparent prospect of it being paid. These are powerful reasons against the grant of a stay.
- On the other hand, denial of a stay has the practical effect that the tenancies would be brought to an end and if they so chose the respondents would be able to cause the warrants of possession to be executed. In a practical sense, that would render a successful appeal to some extent nugatory, although more so in respect of number 58 Browning Street - as the applicant would be removed from residence at the property, albeit he might be able to return at a later time in the event of success on appeal – than for number 62. This factor weighs in favour of a stay.
Determination of application for stay – 62 Browning Street
- In relation to number 62 Browning Street, I am persuaded that the balance favours the denial of a stay. The respondents should be able to protect the beneficiaries of the trust estate by ensuring a proper return on this property. If the adjudicator’s position were to be overturned on appeal, appropriate orders could be expected to be made.
- Having regard to all of the factors mentioned above, so far as number 62 Browning Street is concerned, this is not an appropriate case for a stay; to order a stay would not be in the interests of justice. The poor prospects of success and the serious ongoing financial impact on the respondent outweigh the disadvantage to the applicant.
- In accordance with the usual practice of the Tribunal when the Appeal Tribunal refuses a stay of a warrant of possession, I will make an order reinstating the order for a warrant of possession in respect of number 62 Browning Street. To allow time for contact and arrangements to be made with the sub-tenants of this property, the warrant will take effect from 20 December 2019. That will mean that the operative period of the warrant will commence on the brink of Christmas Eve and straddle the Christmas period. I am satisfied that timing constitutes ‘special circumstances’, such that the warrant should continue for longer than the usual 14 days. Accordingly, I will order that the warrant continue for 21 days.
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 123.
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.
Hessey-Tenny & Anor v Jones  QCATA 131, .
Hessey-Tenny & Anor v Jones  QCATA 131, -.
These principles have been restated by the Appeal Tribunal numerous times; for example recently in: Arthur & Anor v Husheer & Anor; Gautron & Anor v Husheer & Anor  QCATA 146, .
Since there are potential confidentiality issues concerning the interstate litigation, and the precise detail is not necessary for the purposes of these reasons, I do not identify these proceedings.
My attention was not drawn to an express power for Appeal Tribunal to make an order reinstating a warrant of possession. The reinstatement of a warrant of possession following an interim stay may be regarded as part and parcel of dealing with a stay application, which is effectively an application for a s 58 order. Doing so from a reasonable future date is consistent with the previous decisions of the Appeal Tribunal; for example, in the matter of Sommers v Bycroft already referenced, the warrant was reinstated with effect from a date 30 days after delivery of the decision.
Residential Tenancies and Rooming Accommodation Act 2008 (Qld), s 351(4).
- Published Case Name:
Payne v Koukides
- Shortened Case Name:
Payne v Koukides
 QCATA 168
16 Dec 2019