Lear v BBX Limited[2002] QDC 254

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is a case about a boat. Quite an attractive boat; a Fastlane “Pursuit” 30 foot game fishing boat painted white with black stripes, with twin Suzuki 200hp outboard motors, stainless steel flybridge, outrigger poles, and an inflatable Zodiac and retrieving davit on the forward deck: p. 86.

2. [2]
   It is also a case of a type all too familiar to courts: a case where the issue is which of two parties is to suffer because of the wrongdoing of a rogue. There is no doubt that he was a rogue; apart from anything else, on 9 June 2000 he pleaded guilty in the District Court at Southport to 28 counts, on four indictments, 14 of fraud, one of fraud with a circumstance of aggravation, two of obtaining goods by fraudulent pretences, 10 of personation, and one of uttering forged documents: Exhibit 8. On 11 October 2001 in respect of these charges he was sentenced to a term of imprisonment. There was evidence that he had previously been imprisoned in Melbourne: p 29. By the time of the trial he could not be found: Exhibit 2.

3. [3]
   What happened was that the rogue, having purchased the boat, granted a bill of sale over it to the respondent, and subsequently purported to sell it to the applicants.^[1]  Unless the bill of sale is invalid or ineffective as against the applicants, title to the boat passed to the respondent and there was no title left for him to sell to the applicants. However, the applicants submit that on three grounds the bill of sale is not effective as against them. If that is so, there is no obstacle to their title to the boat.

4. [4]
   The applicants rely on s 19(1) of the Bills of Sale and Other Instruments Act 1955 (“the Act”). That subsection provides as follows:

“An instrument must state –

1. (a)
   the name and address of each borrower and lender;  and

2. (b)
   a description of the chattels to which the interest relates, to the extent to which the chattels are ascertainable;  and

4. (d)
   the consideration for granting the instrument.”

A bill of sale is an instrument for the purposes of this provision:  s 6. It was not disputed that the document relied on by the respondent was a bill of sale within the terms of the Act. The only issue argued before me was whether there has been any failure to comply with s19(1), and if so, what the consequence of that failure was. Each of the paragraphs of that subsection was relied on by the applicants.

The correct name of the borrower

5. [5]
   The bill of sale stated the name of the borrower as “Robert Garry Stewart”: Exhibit 1, document8. The applicants’ case was that his correct name was “Robert Gordon Stewart”. Evidence was given by Mr Walker who said he had known Mr Stewart for approximately 20 years (p. 27) and had known him when he was a car dealer in Melbourne, always by the name “Robert Gordon Stewart”, and that his father was called “Gordon Stewart”. He said he became more friendly with Stewart during the last 10 years while he had been living on the Gold Coast. He was approached by Stewart’s wife asking if he knew anyone who would buy the boat, and he subsequently negotiated the sale to the applicants:  p. 28. He said in support of his evidence that he was aware of the full name of Stewart as he had been present at his wedding when his full name had been used, and that he had had to give his full name when he was visiting Stewart in gaol in Melbourne:  p. 32. He also said that he had seen a driver’s licence in the name “Robert Gordon Stewart” which was produced by the wife when he paid the money and received the documents for the sale of the boat:  p. 28.

6. [6]
   There was some other evidence about this name. The boat was on 8 October 2001 registered in the name of “Robert Gordon Stewart” (Exhibit 3) and there was evidence that, in accordance with the ordinary procedures of the Transport Department, Mr Stewart ought to have produced a driver’s licence or some other form of identification in that name in order to be able to register the vessel in that name.^[2]  All four indictments in the District Court charged him in the name of “Robert Gordon Stewart”, which shows that that was the name by which he was known to the police.

7. [7]
   On the other hand, there was a good deal of evidence that, while he was living on the Gold Coast, he was using the name “Robert Gary Stewart”. He ran a printing business through a company Stewart’s Print Pty Ltd, registered on 5 May 2000, of which he became a director under the name “Robert Gary Stewart” on 8 September 2000: Exhibit 1 document 14. An ASIC search shows his birth details as 2 October 1953 at Sydney.^[3]  He also held the majority of the shares. The company was placed in liquidation on 13 March 2002. A former employee of that business knew him as Robert Gary Stewart, and had heard his wife refer to him as Robert Gary:  p. 85. He was known to the BarterCard organisation as Robert Gary Stewart (Exhibit 1, document 2) and used that name to identify himself when he applied to the company to become a member of the respondent’s trade network:  Exhibit 1, document 4. That application, which he signed on 15 March 2001, included a reference to his driver’s licence number, and the former employee of the respondent, who assisted in completing the form, gave evidence that she would have seen a driver’s licence from which he recorded the number on the form, and would have queried any inconsistency between the name shown on that licence and the name on the form:  p. 78.

8. [8]
   There was no evidence from the Department of Transport as to whether any licence had been issued in either name. It is possible that he held two licences, one in each name: p.47.

9. [9]
   It was not suggested that this inconsistency in names reflected the existence of two separate people. The applicants submitted that, even if Stewart had used “Gary” as a second name in various transactions while he was in Queensland (possibly to disguise his past criminal record), the evidence overall suggested strongly that his true and correct name was Robert Gordon Stewart, and that therefore there had been a failure to comply with s 19(1)(a) because that name had not been used on the bill of sale.

10. [10]
    The evidence overall is not very satisfactory as to the true or original name of Mr Stewart. I was not particularly impressed by Mr Walker as a witness, and would not be inclined to place much reliance on his evidence. The fact that Stewart was charged under that name is not conclusive; it is likely that once there were proceedings on foot against him under one name all other proceedings would have been brought in the same name, and in any case it is not uncommon to see on criminal history documents reference to an accused having previously been convicted of some offence or other under a different name. If it were a matter of being satisfied of his true or correct name, that is the name given to him at birth or subsequently adopted by deed,^[4] on the whole I could not be satisfied on the balance of probabilities that the applicants had proved that it was other than Robert Gary Stewart.

11. [11]
    However, I do not think that s 19(1)(a) is to be interpreted so strictly. Prior to the Bills of Sale and Other Securities Amendment Act, number 4 of 1999, s 19(1)(a) required the instrument to state “the names of the grantor and grantee (or the name by which the grantor or grantee is usually known) and an address of the grantor and grantee …”  The current wording was substituted by s 7 of the 1999 Act, which commenced on 7 May 1999.^[5]  This amendment deleted a requirement previously in paragraph 19(1)(c) that the instrument state a description of the place where the chattel was situated or intended to be situated at the time the instrument was executed. The  explanatory memorandum for the Bill indicated that this requirement was no longer regarded as relevant to the principal purpose of the Act, and was unnecessary in the light of the removal of the district divisions from the Act and the centralisation of the register. The memorandum otherwise explained the amendments by saying:  “Clause 7 amends section 19 by simplifying the language in subsections 19(1)(a) and (b) and omitting subsection 19(1)(c). Paragraphs (a) and (b) have been recast to reflect the change in the nature of the register.”  At the beginning of the memorandum the main object of the Bill was described as, to modernise and streamline the registration procedures by the centralisation and computerisation of the register and the introduction of an interest based system of registration. It was also noted that the Bill contained a number of miscellaneous amendments including “redrafting provision (sic) in accordance with current drafting practice.”

12. [12]
    Section 14C of the Acts Interpretation Act 1954 provides:

“If  -

1. (a)
   a provision of an Act expresses an idea in particular words;  and

2. (b)
   a provision enacted later appears to express the same idea in different words for the purpose of implementing a different legislative drafting practice … the ideas must not be taken to be different merely because different words are used.”

The explanatory memorandum can be used, to some extent, as an aid to the interpretation of statute:  Acts Interpretation Act 1954, s 14B. Since in the present case the explanatory memorandum indicates that the change to the wording of s 19(1)(a) was to simplify drafting, and to reflect current drafting practice, I believe I am justified in proceeding on the assumption that no change to the substantive requirements of the provision was intended. In other words, I can assume that the name of the borrower (or lender) required by s 19(1)(a) to be stated in an instrument was to remain the name by which that person was usually known.

13. [13]
    There is certainly no indication of a legislative intent to substitute any other particular meaning. Indeed, the qualification may well have been removed on the ground that it was unnecessary, since the ordinary interpretation of a legislative requirement to state a name would in my opinion be a requirement to state the name by which the person was usually known. The effect of the amendment in 1999 in my opinion was really just to introduce some element of doubt which otherwise would not have been present. It is an example of the pursuit of “current drafting practice” acting to obscure the meaning of legislation rather than to clarify it.

14. [14]
    I am not aware of any authorities on what is required by way of a name for the purposes of s 19 of the Queensland Act. There are a number of English decisions dealing with the requirements under statutes then in force. One of these was factually similar to the present case. In The Central Bank of London Ltd v Hawkins (1890) 62 LT 901 the bill of sale was given under an assumed name, although it was the only name known to the grantee, and was the name by which the grantor had been known in the neighbourhood for three years, and under which he had carried on business during that time. It was held that the bill of sale was valid. Hawkins J said that it would have been different if the grantee had known that the bill of sale was given in the wrong name simply to mislead other creditors. The earlier decision of Cochrane v Dixon (1887) 3 TLR 717 was similar;  a bill of sale where the grantor used the wrong surname was held valid, as it was the name under which he had been carrying on a business. It was the approach in these decisions which seems to have been embodied in the earlier formulation of s 19(1)(a).

15. [15]
    A converse case, where a bill of sale was granted in a correct name although not the name by which the grantor was usually known, has however also been treated as a valid bill of sale. In Re Wood, ex parte McHattie (1878) 10 ChD 398 the grantor used his real name, Jason Wood, rather than the name he had assumed and by which he was generally known, Jason Albert Wood, when granting a bill of sale which was subsequently held to be valid. The decision however seems to have turned on the absence of a specific legislative requirement in the English Bills of Sale Act 1854 that the name be correctly given. The decision was followed in Downs v Salmon (1888) 20 QBD 775, as to the latter point, where it was held that the same applied to the English 1878 Act, so that the bill of sale was valid even though incorrect Christian names had been used for one of the grantors, and the other, his wife, had been described by reference to those incorrect names. In Stokes v Spencer [1900] 2 QB 483 a bill of sale given by a woman under her correct name, although not the name by which she was generally know, was held valid. In the course of his reasons for judgment Channell J at p. 489 said:  “I think I may concede that here the name was a wrong name, not being the name by which the lady was known.”

16. [16]
    Re Wood, Stokes and Hawkins were all referred to with apparent approval by Street J in re Hilda Catip (1912) 12 SR(NSW) 552, although again that decision appears to have turned on the absence of any requirement in the New South Wales legislation then in force for the name to be stated in the bill of sale. The only decision I have found where the use of the wrong name rendered the bill of sale invalid was Lee v Turner (1888) 20 QBD 773, and in that case both the Christian names and the description of the grantor were wrong, and it was held that the combination rendered the bill invalid.

17. [17]
    I am conscious that these decisions are on different legislation, and do not attribute too much significance to them. Perhaps the most significant feature of them is that each to some extent focuses on the practical significance of the name in the context of the purpose which this legislation was intended to achieve. That consideration was also discussed by Gavin Duffy J in Fashion Craft Garment Co v Adler [1960] VR 275, when his Honour dealt with a misdescription of two persons’ occupation in a bill of sale. His Honour referred with approval to English authority that “occupation” meant the trade or calling by which the grantor of a bill ordinarily sought to get his livelihood. Identifying the grantor of the bill of sale by means of the name by which that person is generally known would, in my opinion, be likely to further the purpose of the Act, which is to enable people who are contemplating dealing with someone who is apparently the owner of a chattel to ascertain if there is a bill of sale over that chattel.^[6]

18. [18]
    In my opinion it is sufficient to satisfy the requirements of s 19(1)(a) of the Act if the instrument contains, as the name of the borrower, the name by which he or she is generally known. In the present case, I am satisfied that, at least at the time when this bill of sale was executed while Mr Stewart was operating the business of Stewart’s Print Pty Ltd, he was generally known as Robert Gary Stewart, even if there were some people around who knew him as Robert Gordon Stewart. I do not consider that the extra “r” in the second name is of any significance. In my opinion this bill did comply with s 19(1)(a), so far as the borrower’s name was concerned.

The respondent’s name

19. [19]
    The applicants had a second limb to this part of their argument: that the name of the respondent was not accurately stated in the bill either, because it was there described as Business Barter Exchange Ltd ACN 070 133 069. An ASIC search (Exhibit 9) reveals that the respondent’s name was Business Barter Exchange Ltd between 6 December 1996 and 13 January 2000, but on 14 January 2000 the name was changed to BBX Limited, the current name. As it happens, that name does appear on the document, on the common seal under which the document was executed by the respondent, although that is described in the document as the common seal of “Business Barter Exchange Ltd”. The ACN number of course remains the same.

20. [20]
    There are a number of authorities where courts have adopted a lenient attitude about an error in stating a company’s name, in circumstances where there was in fact a legal entity behind the incorrect name used, and there was no confusion arising as to identity as a result of the error. In Re North Queensland Auto Spares Co Pty Ltd [1984] 2 Qd R 241 Master Lee QC as he then was held that there was no relevant error for the purposes of s 31(8) of the Companies (Queensland) Code when a company which was in the process of changing its name had used the new name, which had not yet come into effect, in executing a debenture charge. His Honour at p. 264-5 noted English authority to the effect that it was not essential to the validity of the contract made on behalf of a limited company that its name should be described with precision so that any error in the name of the company did not invalidate the contract. In Re Macro Constructions Pty Ltd [1994] 2 Qd R 31, Derrington J held that a statutory demand on a company in the registered business name of a corporate creditor rather than the creditor company’s name was valid notwithstanding authorities that the court would require strict compliance by a creditor with the technical formal requirements of such a notice. In Pro Image Productions (Vic) Pty Ltd v Catalyst Television Productions Pty Ltd (1988) 14 ACLR 303, the Full Court of Victoria held that a demand addressed to the respondent under the name “Catalyst TV Productions Pty Ltd” was valid, and said that the proper test was whether the error had the effect of frustrating in some way a purpose of the statutory provisions under consideration or whether it was capable of depriving a party of a right or the opportunity to exercise a right.

21. [21]
    Adopting that approach in the present case, in my opinion the important considerations here are that the name used was a former name of the same company, so that what it identifies is the particular company concerned rather than some other company, and that the correct ACN was used. Anyone conducting a search upon that company would have discovered that it had changed its name. Both otherwise would have identified the respondent company. I cannot see how any purpose of the Act or s 19 is frustrated by treating the use of this name as valid in these circumstances. The High Court has approved a statement, in relation to the requirement that the consideration for the bill be stated, that it “need not be stated with minute accuracy, but must be set forth substantially.”^[7]  Applying that approach to the present case, the name of the respondent as lender was not set forth with minute accuracy, but in my opinion the use of the previous registered name, together with the accurate Australian Company Number, was sufficient for it to be said that the name was set forth “substantially”. There was substantial compliance with the requirement to state the name, and in my opinion that was sufficient. I am not satisfied that there was any failure to comply with s 19(1)(a) on this basis either.

Identification of the chattel

22. [22]
    The applicants’ argument on this ground was that the vessel was incorrectly identified as “Fastlane fibreglass pursuit 1998 twin 200hp Suzuki outboard registration number JE237Q4”: Exhibit 1, document 8. The only part of that description which was alleged to have been incorrect was the registration number. The boat had, prior to 4 April 2001, belonged to a Mr Tate, who on that day sold it to Mr Stewart at an event organised by the respondent. It was paid for using “trade dollars” by Stewart’s Print Pty Ltd in accordance with the trading scheme operated by the respondent:  Exhibit 1, document 3. Prior to that time it had been registered in the name of Mr Tate, having registered number JE237Q:  Exhibit 1, document 10. That registration expired on 28 June 2001. There is no indication the boat was registered between that date and 8 October 2001 when Mr Stewart registered it again. It was then allocated number MO169Q:  Exhibit 3. There was evidence however that, if registration had expired and someone else was seeking to register the same vessel, it could well be given a new registration number (p.49), so the change in the registration number in those circumstances is explicable. That suggests that the registered number MO169Q (which number the vessel now bears) was probably allocated for the first time to the boat on or about 8 October 2001.

23. [23]
    The applicants argument was that the details in the bill of sale were incorrect because they did not use the registered number MO169Q. In the light of the evidence before me, I am not satisfied that the boat was properly described by reference to that registered number at any time prior to 8 October 2001, and therefore failure to use that number did not amount to a misdescription of at the time the bill of sale was executed on 25 July 2001, or for that matter when it was registered on 6 August 2001. This ground therefore fails.

Failure to state consideration

24. [24]
    The bill of sale identifies the consideration in the following recital:

“Whereas the grantee [the respondent] has agreed, at the request of the grantor and the guarantor, to provide a loan facility to the grantor on a revolving basis up to a maximum aggregate principal amount outstanding at any time of $200,000 (which by the execution of this deed the grantor acknowledges) with interest, costs and charges …”

The reference to the guarantor is puzzling, since there was no party identified as the guarantor in the bill, and it was not executed by anyone other than Mr Stewart and the respondent. On the same day however a guarantee and indemnity was executed as well, where the guarantor was identified as Stewart’s Print Pty Ltd:  Exhibit 1, document 9. This recited that “the sum specified in item 2 of the schedule ($200,000) has agreed to be lent and advanced by the persons whose name is set forth in item 5 of the schedule (the respondent)^[8] to the persons whose names are set forth in item 3 of the schedule (Stewart) upon the security of a bill of sale executed over the property described in item 6 of the schedule”. Item 6 refers to the boat the subject of the bill of sale. This is apparently a guarantee by Mr Stewart’s company of a debt of up to $200,000 lent to Mr Stewart.

25. [25]
    There is however no other evidence about a loan of $200,000 to Mr Stewart being made, or of there being any agreement by the respondent to lend that or any sum to Mr Stewart. On 31 October 2001 a representative of the respondent wrote to Mr Stewart complaining about various breaches of the rules of the respondent’s trading program,^[9] and threatening that unless he complied with the original agreement the respondent would have no option “but to take action under security held and your signed guarantee”. Any ambiguity about the meaning of the security was clarified by a subsequent letter on 20 December 2001 by the same representative of the respondent to Mr Stewart, threatening to exercise “our rights under the bills of sale on the Porsche and boat to repossess and clear your accounts.”  On 14 February 2002 the respondent again wrote to Mr Stewart giving “formal notification of our immediate attention to recover the following … Fastlane fibreglass pursuit boat 1988 rego JE237Q4. Recovery will be pursuant to the bills of sale BBX Management holds over said property …”  Reference was again made to breaches of the rules governing the trading operation. Copies of the earlier correspondence were attached.

26. [26]
    That correspondence suggests that the real purpose of the bill of sale was to provide security in respect of the obligations of a member under the rules of the trading scheme operated by the respondent. The documents to which I have earlier referred, in particular the bill of sale, are however imperfectly expressed in order to achieve that result. It was not Mr Stewart who was the member of the trading arrangement operated by the respondent, but his company Stewart’s Print Pty Ltd: see Exhibit 1, document 6. On the other hand, I find that the boat was owned by Mr Stewart personally. What ought to have been obtained was a guarantee from Mr Stewart of the company’s obligations to the respondent under the trading program operated by the respondent, and then a bill of sale from Mr Stewart to secure his obligations under the guarantee. Unfortunately, that is not what was put in place.

27. [27]
    It did occur to me that possibly there was a separate transaction involving a loan, or at least a line of credit, to Mr Stewart, which transaction was the subject of the bill of sale and the guarantee. There is however no evidence from the respondent that there was in fact any such consideration as is referred to in the bill of sale. On the other hand, the transaction history for the company with the respondent (Exhibit 4) shows monthly^[10] payments of $30,555 by the company to the respondent, identified as “Loan Account Stewart Print PL – monthly loan account transfers” which commenced on 24 August 2001, one month after the bill of sale was executed on 25 July 2001. The legal fees for preparation of the bill of sale also appears on this history, on 6 August 2001 as a “purchase” by the company. These entries suggest a loan to the company.

28. [28]
    The issue was raised in the pleadings, albeit by amendment on the day of trial, of which notice had been given a short time before trial.^[11]  Disclosure was sought of any additional documents relevant to that ground prior to the trial,^[12] and no other documents were disclosed.^[13]  The onus is on the applicants, but in circumstances where the relevant facts are, as between the parties, solely within the knowledge of the respondent, there is some evidentiary onus on the respondent at least to raise the possibility that there may have been some separate transaction which was accurately described by the consideration stated in the bill of sale.^[14]  In the absence of that evidence, I consider that I am justified in drawing from the respondent’s correspondence in Exhibit 1 the inference that the true consideration for the bill of sale was some benefit extended to Stewart’s Print Pty Ltd in respect of its operation of the trading program. It is not enough to say that there could have been a loan to Stewart to fund some obligation of his company;  there is no evidence of that.

29. [29]
    It is clear that the effect of the statute is to require the true consideration of the bill to be stated in it. It is not an answer to say that, in accordance with the ordinary doctrines of interpretation of a contract in writing, where the contract identifies expressly the consideration for a promise, that is the true consideration for the purposes of the contract.^[15]  Otherwise, so long as the bill of sale contained something which purported to be the consideration for the promise, the requirement of the statute would be satisfied, and that would largely deprive this requirement of any substance. In my opinion a court, when determining whether s 19(1)(d) has been satisfied, first identifies the true consideration^[16] for which the bill of sale was issued, by reference to the whole commercial effect of the transaction, and then determines whether that true consideration has been accurately identified in the bill of sale:  Re Bachort; ex parte Kenna [1902] St R Qd 288 at p. 293, 296.

30. [30]
    In Burns v McFarlane (1940) 64 CLR 108, Rich, Dixon and McTiernan JJ in a joint judgment at p. 116 approved a statement by James LJ in ex parte National Mercantile Bank (1880) 15 Ch D 42 at 53, 54 which included the following:

“If the consideration is to be set forth in the bill of sale, it must be set forth truly; probably it need not be stated with minute accuracy, but it must be set forth substantially … The Act requires the real, the actual consideration to be set forth, but it does not require that any bargain between the parties relating to it should be stated. …In my view, the real consideration, as between the grantor and the grantee, the consideration which would have been properly stated in the deed if the Act had not been passed, is the consideration which ought now to be stated.”

31. [31]
    In the present case, I am satisfied that the bill, in identifying an agreement to provide a revolving loan facility of up to $200,000 to Mr Stewart, did not state the true consideration for the bill. For the reasons already stated, I am prepared to draw the inference that no such agreement was ever made by the respondent, and that the true consideration for the bill was some agreement, not clearly identified on the evidence, to make some benefit available to his company in connection with the trading program. Because that consideration was not stated in the bill, the requirement of s 19(1)(d) was not satisfied.^[17] 

The effect of a breach of section 19

32. [32]
    Although the issue appears not to have been decided by the Court of Appeal in Queensland, there are a series of judgments in which it has been held that the effect of a failure to comply with s 19 is that the bill is in the same position as against a third party as if it had not been registered:^[18]Ex parte Esanda Ltd [1977] Qd R 162; Olsen v General Credits Ltd [1985] 2 Qd R 506;  Ex parte Dalgety Farmers Ltd [1987] 2 Qd R 481;  Re Austral Mining Construction Pty Ltd [1993] 1 Qd R 358. The latter two decisions are of McPherson JA, and in my opinion they ought to be followed in preference to the single decision to the contrary, of Ex parte Citicorp Australia Ltd [1983] 1 Qd R 509.

33. [33]
    It follows therefore that the failure to comply with s 19(1) means that the bill has the same effect as if it were unregistered, that is to say, it has no effect against any person who is not a party to the bill:^[19]  s 18 of the Act. It follows that it has no effect as against the applicants, and therefore that it cannot intercept the title the applicants derived from Mr Stewart.

34. [34]
    It follows that the applicants are the true owners of the boat, and are entitled to a declaration to that effect. The boat is no longer in the possession of the respondent, so an order for possession is not appropriate. They are also entitled to damages for trespass, although they should be confined to nominal damages of $10 since the respondent was acting in good faith and since the applicants have not proved any actual financial loss as a consequence of the trespass. The boat will presumably be returned, so it is not appropriate to give judgment for the value of the boat (which was not proved) as damages for conversion.

Costs

35. [35]
    The allegation in relation to the consideration was not initially raised, either in the material filed in support of what commenced as an originating application, or in the original statement of claim. Leave was given at the trial to amend the statement of claim to raise the issue, subject to the question of costs. In circumstances where a party succeeds only on a ground added by amendment at the trial, it may be open to a court to decline to award costs to the successful party. The question of costs however has not been fully argued. There may well be other relevant considerations of which I am, properly, as yet unaware. I will circulate these reasons and invite submissions in writing as to what order for costs should be made in the circumstances, and indeed whether any other orders may be appropriate.

36. [36]
    In conclusion I would like to express my appreciation of the assistance provided by both counsel, in narrowing the issues and providing many helpful authorities.