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Sea Trek Dive Services Pty Ltd v Crossley[2019] QDC 126

Sea Trek Dive Services Pty Ltd v Crossley[2019] QDC 126

DISTRICT COURT OF QUEENSLAND

CITATION:

Sea Trek Dive Services Pty Ltd & Or v Crossley [2019] QDC 126

PARTIES:

SEA TREK DIVE SERVICES PTY LTD ACN 007 847 216

(first plaintiff)

and

PEPPI IOVANNELLA

(second plaintiff)

v

DENNIS ALAN CROSSLEY

(defendant)

FILE NO:

185/17

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

Cairns

DELIVERED ON:

23 July 2019

DELIVERED AT:

Cairns

HEARING DATE:

20 February 2019

JUDGE:

Morzone QC DCJ

ORDER:

  1. There be judgment for the first and second plaintiffs against the defendant for $450,000.00 for the claim, plus interest calculated on that amount from the date this proceeding started on 27 October 2017 pursuant to s 58 of the Civil Proceedings Act 2011 (Qld).
  2. Unless either party applies for, or the parties otherwise agree on, a different costs order within 14 days of this judgment - the defendant will pay the first and second plaintiffs’ costs of the application to be assessed on the standard basis.

CATCHWORDS:

CIVIL PROCEEDING – claim – loan agreement – repayments – interest payable - purported guarantee void or unenforceable for want of consideration – valid and enforceable loan agreement – guarantor of loan.

Legislation

Civil Proceedings Act 2011 (Qld) s 58.

Property Law Act 1974 (Qld) s 56. 

Cases

Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549

Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424

Australian Broadcasting Commission v Australian Performing Right Association Ltd (1973) 129 CLR 99

Aquawest Pty Ltd v Twynham [2017] NSWSC 652

Balanced Securities Pty Ltd v Dumayne Property Group Pty Ltd [2017] VSCA 61

Ballas v Theophilos (No 2) (1957) 98 CLR 193

Barrier Wharfs Ltd v W Scott Fell & Co Ltd (1908) 5 CLR 647

Burrell & Family Pty Ltd v Harris [2010] SASC 184

Clark Equipment Credit of Australia Ltd v Kiyose Holdings Pty Ltd (1989) 21 NSWLR 160

De Havilland v Bowerbank (1807) 1 Camp 50

Donau Pty Ltd v ASC AWD Shipbuilder Pty Ltd [2018] NSWSC 1273

Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640

Fruhling v Schroeder (1835) 2 Bing NC 77

Goldman & Son v Heathwood & Heathwood (1939) QWN 5

Heydon v Perpetual Executors (1930) 45 CLR 111

Hillas v Arcos (1932) 147 LT 503 at 514

Hills Central Pty Ltd v Hagerty [2018] NSWSC 789

Holme v Brunskill (1877) 3 QBD 495

Howard Smith & Co Ltd v Varawa (1907) 5 CLR

James v Cochrane (1852) 7 Exch 170

Julong Pty Ltd v Fenn [2002] QSC 26

Lindsay v L. Stevenson & Sons Ltd (1891) 17 VLR 112

Leahy v Hill [2018] NSWSC 6

Mineralogy Ptd v BGP Geoexporer Pte Ltd [2017] QSC 219

NAB Limited v Murphy [2018] QSC 106

Pan Foods Co Importers & Distributors Pty Ltd v Australia & New Zealand Banking Group Ltd (2000) 74 ALJR 791

Parkinson v Booth (1934) 34 SR (NSW) at 188

Pavlovic v Universal Music Australia Pty Ltd (2015) 90 NSWLR 605

Prudential Assurance Co Ltd v Health Minders Pty Ltd (1987) 9 NSWLR 673

Rava v Logan Wines Pty Ltd [2007] NSWCA 62

Reozone Pty Ltd v Santoro [2016] NSWSC 1383

Riches v Hogben [1986] 1 Qd R 315

Schmierer v Taouk [2004] NSWSC 345

Scottish Amicable Life Assurance Society v Reg Austin Insurances Pty Ltd (1985) 9 ACLR 909

Seldon v Davidson [1968] 1 WLR 1083

Smith v Passmore (1883) 4 LR (NSW) 274

SH Lock Discounts & Credits Pty Ltd v Miles [1963] VR 656

Stromdale and Ball Pty Ltd v Burden [1952] 1 Ch 223

Vetro Glass Pty Ltd v Fitzpatrick [1963] 63 SR (NSW) 697

Weemah Park Pty Ltd v Glenlaton Investments Pty Ltd [2011] 2 Qd R 582

Wharf St Pty Ltd v Amstar Learning Pty Ltd [2004] QCA 256

White v Woodward (1848) 5 CB 810 (136 ER 1097);

Williams Bros v Ed T Agius Ltd [1914] AC 510, at 527

Williams v Frayne (1937) 58 CLR 710

Young v Queensland Trustees (1956) 99 CLR 560

Zhang v BM Sydney Building Materials Pty Ltd [2016] NSWCA 166 at [44]

COUNSEL:

Chris Ryall for the Plaintiffs

Michael Wolff for the Defendant

SOLICITORS:

Devenish Law for the Plaintiffs

Kelly Legal for the Defendant

  1. [1]
    The plaintiffs sue the defendant, as a guarantor, to recover $550,000 loaned to Omega Greenpower Limited ACN 146 338 516 (‘Omega’), but the defendant disavows any obligation to do so.
  1. [2]
    Having regard to the evidence, and assisted by comprehensive written and oral submission, for the reasons that follow, I have decided that the plaintiff is entitled to judgment for the whole claim, together with interest and costs.

Background

  1. [3]
    The defendant signed a written loan agreement on or about 18 December, 2012, under which the plaintiffs promised to advance a loan in the amount of $50,000.00 to Omega,[1] in these terms:

LOAN AGREEMENT

This agreement is made between Peppi Iovanella and Sea Trek Dive Services Pty Ltd (ACN 077 847 216), Omega Greenpower Limited (ACN: 146 338 516) and Dennis Alan Crossley dated 18th December 2012 whereas:

  • Peppi Iovanella and Sea Trek Dive Services Pty Ltd has agreed to lend the sum of $50,000.00 (Fifty Thousand Dollars) to Omega Greenpower Limited as at this date.
  • Dennis Crossley has agreed to guarantee the loan.
  • The loan is for the period up to and including 31st March 2013.
  • The purpose of the loan is to keep the company solvent up to 31st January 2013.
  • The funds are to be used to predominantly to purchase stock in order to fulfil existing commitments and to pursue new orders.

 

Conditions: 

  • As at 2nd January 2013, the general structure of the company is reviewed including but not limited to personnel and operational expenditure.
  • 3 Suns in PNG is vigorously pursued for equity injection.
  • Ghana is pursued for future business opportunities.
  • Other PNG opportunities are pursued.
  • Hybrid light funding options are evaluated.
  • PI to have a major input into running of the company.
  • PI has the option to convert the loan to equity at the end of January.
  • PI has the option for further involvement at any time in the future.
  • At PI’s option, the loan can extend past the 31st March 2013.

Signed.

______[signature]_______   ______[signature]_______

Dennis A Crossley     Peppi Iovanella

Director      Director           .

  1. [4]
    The parties purported to vary this agreement by two successive documents both dated 7 April 2013: firstly, by increasing the total loan to $300,000.00, and extending the expiry date to 30 June 2013; and secondly, by increasing the total loan to $450,000.00, and extending the expiry date to 31 December, 2013. Otherwise, the terms were in their material respects identical to the initial form of the loan agreement.[2]
  1. [5]
    The first variation of 7 April 2013 was in these terms:

LOAN AGREEMENT

This agreement is made between Peppi Iovanella and Sea Trek Dive Services Pty Ltd (ACN 077 847 216), Omega Greenpower Limited (ACN: 146 338 516) and Dennis Alan Crossley dated 7th April 2013 whereas:

  • Peppi Iovanella and Sea Trek Dive Services Pty Ltd has agreed to lend the sum of $300,000.00 (Three Hundred Thousand Dollars) to Omega Greenpower Limited as at this date.
  • Dennis Crossley has agreed to guarantee the loan.
  • The loan is for the period up to and including 30st June 2013.
  • The purpose of the loan is to keep the company solvent up to 30st June 2013.
  • The funds are to be used to predominantly to purchase stock in order to fulfil existing commitments and to pursue new orders.

 

Conditions: 

  • As at 2nd January 2013, the general structure of the company is reviewed including but not limited to personnel and operational expenditure.
  • 3 Suns in PNG is vigorously pursued for equity injection.
  • Ghana is pursued for future business opportunities.
  • Other PNG opportunities are pursued.
  • Hybrid light funding options are evaluated.
  • PI to have a major input into running of the company.
  • PI has the option to convert the loan to equity at the end of June 2013.
  • PI has the option for further involvement at any time in the future.
  • At PI’s option, the loan can extend past the 30st June 2013.

Signed.

______[signature]_______   ______[signature]_______

Dennis A Crossley     Peppi Iovanella

Director      Director           .

  1. [6]
    The first variation of 7 April 2013 was in these terms:

LOAN AGREEMENT

This agreement is made between Peppi Iovanella and Sea Trek Dive Services Pty Ltd (ACN 077 847 216), Omega Greenpower Limited (ACN: 146 338 516) and Dennis Alan Crossley dated 7th April 2013 whereas:

  • Peppi Iovanella and Sea Trek Dive Services Pty Ltd has agreed to lend the sum of $450,000.00 (Three Hundred Thousand Dollars) to Omega Greenpower Limited as at this date.
  • Dennis Crossley has agreed to guarantee the loan.
  • The loan is for the period up to and including 31st December 2013.
  • The purpose of the loan is to keep the company solvent up to 31st December 2013.
  • The funds are to be used to predominantly to purchase stock in order to fulfil existing commitments and to pursue new orders.

Conditions: 

  • As at 2nd January 2013, the general structure of the company is reviewed including but not limited to personnel and operational expenditure.
  • 3 Suns in PNG is vigorously pursued for equity injection.
  • Ghana is pursued for future business opportunities.
  • Other PNG opportunities are pursued.
  • Hybrid light funding options are evaluated.
  • PI to have a major input into running of the company.
  • PI has the option to convert the loan to equity at the end of December 2013.
  • PI has the option for further involvement at any time in the future.
  • At PI’s option, the loan can extend past the 31st December 2013.

Signed.

______[signature]_______   ______[signature]_______

Dennis A Crossley     Peppi Iovanella

Director      Director           .

  1. [7]
    The plaintiffs advanced to Omega a total of $550,000.00 by several payments between December 2012 to September 2013, as follows:[3]
  1. (a)
    $50,000.00 on or about 19 December 2012;
  2. (b)
    $50,000.00 on or about 14 January 2013;
  3. (c)
    $50,000.00 on or about 6 February 2013;
  4. (d)
    $50,000.00 on or about 21 February 2013;
  5. (e)
    $50,000.00 on or about 7 March 2013;
  6. (f)
    $50,000.00 on or about 8 April 2013;
  7. (g)
    $50,000.00 on or about 1 May 2013;
  8. (h)
    $20,000.00 on or about 14 June 2013;
  9. (i)
    $20,000.00 on or about 4 July 2013;
  10. (j)
    $100,000.00 on or about 5 July 2013;
  11. (k)
    $20,000.00 on or about 15 July 2013;
  12. (l)
    $20,000.00 on or about 31 July 2013; and
  13. (m)
    $20,000.00 on or about 16 September 2013.
  1. [8]
    The plaintiffs assert that the advances were in performance of the loan agreement (as varied) at the request and with the consent of the defendant,[4] which is disputed by the defendant.[5]
  1. [9]
    By emails sent in September and October 2013 the second plaintiff requested repayment of the loan from the defendant.[6]  The defendant assured the second plaintiff by email dated 16 October, 2013, that: ‘Let me confirm, in writing, my commitments [sic] that you will be repaid, with interest, as soon as possible.’[7]
  1. [10]
    No payments were made, and Omega went into liquidation in April 2017.[8]
  1. [11]
    The defendant has since failed or refused to make any payment in reduction of the outstanding loan amount.[9]
  1. [12]
    The plaintiffs now claim against the defendant, as guarantor, to recover the amount of $550,000.00 advanced by the plaintiffs pursuant to the terms of the loan agreement as varied. The defendant disputes any liability based on three major contentions:
  1. First, no agreement was executed by the defendant as guarantor.
  1. Second and in the alternative, any agreement upon proper construction was not a personal guarantee but an agreement to agree and as such unenforceable; and/or was beset by many further ambiguities that have to be resolved in favour of the defendant.
  1. Third and in the alternative, that the agreement was discharged by:
  1. (a)
    breaches of essential terms of the principal contract; and/or
  1. (b)
    breaches of essential terms of the principal contract followed by termination of the principal contract;
  1. (c)
    a breach of a material condition; and/or
  1. (d)
    the principal contract was materially altered without the alleged guarantor consent.

Issues

  1. [13]
    The disputed issues in the proceeding as framed by the pleadings are:
  1. Is the loan agreement, comprised of the various documents, void or unenforceable for uncertainty about?[10]
  1. (a)
    When repayments are to be made;
  1. (b)
    The amount of repayments required to be made;
  1. (c)
    Whether interest is repayable on the amount loaned; and/or
  1. Did the defendant sign the loan agreement (as varied) as guarantor, and not merely representatively as a director of Omega?[11]
  1. Did the defendant assume liability to ‘guarantee the loan’ as guarantor, or merely agree to agree in the future?[12]
  1. What was the extent of any guarantee by the defendant?[13]
  1. Is the defendant relieved of any liability to repay under the first two documents because the second plaintiff exercised an option to extend the term of any loan?[14]
  1. Is the purported guarantee void or unenforceable for want of consideration,[15] and/or for uncertainty?[16]
  1. Was any liability of the defendant, as guarantor, discharged because:
  1. (a)
    The principal contract was materially altered without the guarantors consent by the plaintiffs extended time for Omega to repay when it defaulted making any repayment by 31 March 2013 and on subsequent occasions?
  1. (b)
    The plaintiffs breached of essential terms of the principal contract by demanding early repayment, charging interest and the second plaintiff resigning as a director and ceased continuing major input from on or about 30 September, 2013?

Did the parties make a valid and enforceable underlying loan agreement?

  1. [14]
    The question turns on whether loan agreement was made by various documents, and whether it was rendered void or unenforceable for uncertainty:[17]
  1. (a)
    When repayments are to be made;
  1. (b)
    The amount of repayments required to be made;
  1. (c)
    Whether interest is repayable on the amount loaned; and/or
  1. (d)
    The consequence of any breach.

Parties

  1. [15]
    The first paragraph of each document clearly identified the relevant parties:

This agreement is made between Peppi Iovanella, Sea Trek Dive Services Pty Ltd (ACN 077 847 216) Omega Green Power Limited (ACN: 146 338 516) and Dennis Alan Crossley”

  1. [16]
    And the next terms clearly distinguish each of them in their respective capacities as follows:
  • “Peppi Iovanella and Sea Trek Dive Services Pty Ltd has agreed to lend the sum of $50,000.00 (Fifty Thousand Dollars) to Omega Greenpower Limited as at this date.”
  • “Dennis Crossley has agreed to guarantee the loan.”
  1. [17]
    The terms identify Peppi Iovanella and Sea Trek Dive Services Pty Ltd as lenders/creditors and Omega, as borrower/debtor. There is no issue that the defendant assumed any liability as a principal debtor under the terms of the loan agreement.

Loan amount

  1. [18]
    The terms of each document, which contemplated the possibility of similar future dealings between the parties.[18]  That is, the possibility of future advances by the Plaintiffs to Omega was contemplated.  Accordingly, the variations to the original written loan agreement of 18 December 2012, incrementally increased the total loan from $50,000.00 to $450,000.00 to account for further advances, and commensurably extended the period of the loan from 31 March 2013 to 31 December 2013. 
  1. [19]
    Given the increasing amount of aggregate indebtedness, it is unlikely that each successive loan agreement was objectively intended to be independent and cumulative in their operation and effect, instead, each successive agreement was intended to vary the previous agreement. It is trite law that where parties to a contract enter into a subsequent contract dealing with the same subject matter, the latter might be deemed to supersede the former or, at least, to implicitly abrogate the same to the extent of any inconsistency.[19]  Accordingly, in this case, the inescapable inference is that each varied agreement was intended to wholly replace and supersede the immediately prior version. The ‘loan’ survived each superseded agreement. 
  1. [20]
    Although documents contemplated an option excisable by second plaintiff to convert ‘the loan’ to equity at a stipulated point in time, he never did.  As at the date of each variation, no money had been repaid, and each document stated the total loan, which in its final manifestation was apparently $450,000.00.  This aspect of the parties’ agreement is odd in that the numbered expression of the loan amount is stated as “$450,000.00” yet the bracketed wording remained at the former version “(Three Hundred Thousand Dollars)”.  It seems to me that the latter is a mere slip, does not enliven any uncertainty, and is of no consequence to the effective agreed increase of the loan amount to a total of $450,000.00. 
  1. [21]
    I do not accept the plaintiff’s argument that the the loan includes all the advances to Omega. Whilst it is clear that the plaintiff’s advanced total $550,000.00 to Omega, being an additional $100,000.00, I am unable to discern from the loan agreement (as varied) any term that would capture any excess. The plaintiffs would need to look beyond the loan agreement to recover any additional advance,[20] or other suitable cause of action beyond the scope of this proceeding against a guarantor.
  1. [22]
    I find that the loan agreement (as varied) facilitated a loan from the plaintiffs to Omega for the total amount of $450,000.00.

Repayment

  1. [23]
    The documents contemplated a loan for a limited period, the last being 31 December 2013. This, in my view, plainly connoted the date by which the loan must have been repaid in full. This period of the loan was extended by the parties’ variation agreement. No further extension was made at the election of the second plaintiff under the agreement.
  1. [24]
    Alternatively, if the “loan period” did not connote a due date for repayment, and the loan agreements failed to stipulate when any amount or amounts advanced were repayable, the loan amount was implicitly repayable upon demand, or within a reasonable time after demand.[21]
  1. [25]
    Omega failed to repay any money before 31 December 2013, indeed at all. The plaintiffs, through their solicitors’ letter 10 November 2016, demanded repayment from Omega,[22] failing which they would look to the defendant personally (and further Cairns Commercial Realty), as follows:

We expressly reserve my client’s rights to take action against Dennis Alan Crossley personally for the amount debt plus costs and interest and against Cairns Commercial Realty trading as Ray White on account of the false representations given on behalf of that entity in or about January 2013 which induced our client to advance further funds.”

  1. [26]
    The loan amount remains overdue and payable by Omega, well after the final loan period of repayment of 31 December 2013, and despite demand made on 10 November 2016.

Interest

  1. [27]
    The defendant argues that the parties either: did not agree on an interest figure, or did agree on an interest figure and that figure was 0%. It is asserted that this gives rise to intolerable uncertainty of an essential term.
  1. [28]
    I also reject the defendant’s assertions as an unnecessary gloss.
  1. [29]
    The agreements are silent about interest. The absence of any express interest term merely means that here was no contractual obligation for payment of interest on capital amounts advanced within the contemplation of the parties.[23]  To put it simply, there was no essential term about interest.

Finality

  1. [30]
    As to finality of the loan agreement, the defendant points to the him not retaining any agreement,[24] and the parties’ subsequent emails about entering into a “commercial loan agreement” and repayments, and the absence of any mention of a personal guarantee,[25] to argue that the parties did not consider the loan agreement and/or guarantee to be more than a brief notation, not unlike a file note, with a view to a entering into a future binding agreement. 
  1. [31]
    I do not accept these arguments in the circumstances of this case.
  1. [32]
    It is true that the parties’ lay wording lacks eloquence and precision that might have been expected of a lawyer. But Lord Wright as remarked in Hillas v Arcos:[26] “Business men often record the most important agreements in crude and summary fashion; modes of expression sufficient and clear to them in the course of their business may appear to those unfamiliar with the business far from complete or precise” and it is “… the duty of the court to construe such documents fairly and broadly, without being too astute or subtle in finding defects…”.[27]  It seems to me that the loan agreement (as varied) ought be construed practically, so as to give effect to its presumed commercial purpose, and not so as to defeat the achievement of that purpose by an excessively narrow and artificially restricted construction.[28] 
  1. [33]
    As at the date of each variation, no money had been repaid, and each document stated the total loan for the time being representing the principal indebtedness of Omega. In the end that was $450,000.00. Each document provided: “The purpose of the loan is to keep the company solvent up to [date]”; and “The funds are to be used to predominantly to purchase stock in order to fulfil existing commitments and to pursue new orders".  It is unlikely that the parties intended the document to produce commercial nonsense, or to work commercial inconvenience.[29]  Rather, the purpose was to be fulfilled by the immediate facilitation of the assured loan with no hint, at the time of making the agreements, of some prospective instrument before being bound.  I don’t accept this was displaced by the email communication well after the formation of the varied loan agreements.  In my view, the simplistically plain terms of the agreement supports the objective intention that the principal parties were immediately bound under the loan agreement.
  1. [34]
    Having been satisfied of the principal indebtedness of Omega in the amount of $450,000.00 subject of the loan agreement (as varied), my consideration turns to whether the defendant is liable to guarantee that debt.

Did the defendant sign documents as guarantor, and/or as director?

  1. [35]
    The defendant denies that he signed as guarantor of the loan subject of the loan agreement (as varied).[30]
  1. [36]
    Section 56 of the Property Law Act 1974 (Qld) provides:

(1) No action may be brought upon any promise to guarantee any liability of another unless the promise upon which such action is brought, or some memorandum or note of the promise, is in writing, and signed by the party to be charged, or by some other person by the party lawfully authorised.

  1. [37]
    This case invokes the well settled approach to interpretation of guarantees, affirmed by the High Court in Andar Transport Pty Ltd v Brambles Ltd,[31] that:

“The starting-point is the decision of this Court in Ankar Pty Ltd v National Westminster Finance (Australia) Ltd.  In that case, the Court considered whether two clauses of a guarantee operated as conditions the breach of which would discharge the surety from liability.  In answering that question in the affirmative, Mason ACJ, Wilson, Brennan and Dawson JJ said:

“At law, as in equity, the traditional view is that the liability of the surety is strictissimi juris and that ambiguous contractual provisions should be construed in favour of the surety. The doctrine of strictissimi juris provides a counterpoise to the law's preference for a construction that reads a provision otherwise than as a condition. A doubt as to the status of a provision in a guarantee should therefore be resolved in favour of the surety”.

In Chan v Cresdon Pty Ltd, Mason CJ, Brennan, Deane and McHugh JJ described the statement in Ankar set out above as evidencing a “settled principle governing the interpretation of contracts of guarantee.””

  1. [38]
    The defendant proffers three possible interpretations of the defendant’s signature:
  1. (a)
    Firstly, the defendant signed as director of Omega; or
  1. (b)
    Secondly, the defendant signed as director of Omega and as personal guarantor; or
  1. (c)
    Thirdly, the defendant signed as a personal guarantor.
  1. [39]
    The defendant relies upon the analogous circumstances in Aquawest Pty Ltd v Twynham,[32] to argue that these create ambiguity that should be determined in his favour.  In Aquawest, the New South Wales Supreme Court considered an appeal from a Magistrate who remarked in the decision that:

“Due to the ambiguity of the credit application I cannot be satisfied that the director Paul Twynham signed that document as a personal guarantee.  As I indicated, there was no separate signing provisions for the guarantee and his signature would well and truly be simply someone who is accepting the terms and conditions.  The fact that he has accepted those terms and conditions and indicated that he clearly read that document before signing it may give rise to liability for the other matters that I have raised which are not the subject of the proceedings today.

But, under the circumstances, I cannot be satisfied that he signed the document as a person offering to guarantee the debt owed to Aquawest.”

  1. [40]
    After disposing of the appeal on other grounds, Lonergan J affirmed the magistrate’s conclusion as follows:[33]

“If I am wrong about that, ground 1A of the appeal grounds would fail in any event because, consistent with the submissions of the defendant on this appeal and as submitted in written submissions provided to the Magistrate on the hearing and as ultimately determined by the Magistrate in his judgment (at p 4), it is not clear due to the ambiguity of the contract that the director, Paul Twynham, the defendant in the proceedings, signed the contract as a personal guarantee.”

  1. [41]
    However, each case will turn on its own facts and circumstances. Even within the paradigm of interpreting a guarantee, the relevant intention is to be found upon the intent to be objectively imputed from the document as a whole, and in light of broader, admissible, surrounding circumstances.[34]  The question should be considered objectively by reference to what the defendant said and did,[35] and not some subjective mindset, belief or intention.  This is true for a matter of construction, as it is for determining the capacity in which the person is acting.[36]  What matters is what the defendant’s words or conduct would have led a reasonable person in the position of the plaintiffs to believe or conclude.[37]
  1. [42]
    As to the capacity in which the defendant signed the instrument, an individual might apply his or her signature to an instrument in more than one capacity.[38]  In such circumstances, the question as to whether the act of signature was intended to bind the signatory personally, as well as some relevant representative capacity, depends upon the intention to be objectively imputed to the party from the manner and circumstances in which the signature appears.[39]
  1. [43]
    Here, the defendant’s signature was applied above his name ‘Dennis A Crossley’, which in turn appeared above the description ‘Director’.  That descriptor at first glance tends against any imputed assumption of the defendant signing singularly or dually in his personal capacity.  Even so, that does not foreclose the possibility of the defendant assuming personal responsibility or liability.  As McHugh JA (as he then was) said in Scottish Amicable Life Assurance Society v Reg Austin Insurances Pty Ltd,[40] “[i]n some cases the contents of a document may indicate that the signatory is bound even though a qualification attaches to the signature.  Expressly or by implication the body of the document may make it plain that the signatory is a party to the contract.”  I think that is apt here.
  1. [44]
    The form of the documents provided for only two signatures, and all signatures were ascribed as required. This is not a case where a person signs in one place according to a stated qualification, but leaves another place unsigned and incomplete, for example, where the place for a guarantor’s signature is left blank.[41]   Here, there was no other place for the second plaintiff or second defendant to sign again.  Their signatures were respectively underscored by their personal name, and then ‘Director’.
  1. [45]
    In these circumstances, where the signatures reflect the identified parties, the plain terms of the agreement, and no provision for more signatures, it is objectively clear that both men signed in their respective dual capacities – personally (connoted by name) and for their company (connoted as ‘Director”).  In that way, the second plaintiff signed as joint lender for himself and for his company, and the defendant signed for himself (as a guarantor), and for his company (as the principal debtor).  The word “Director” under each signatory’s name is neutral.[42] Further, the parties’ subsequent conduct affords no basis for departure from this conclusion.[43] 
  1. [46]
    I find that by signing each document the defendant manifested the intention to assume personal liability as the named guarantor, notwithstanding that his signature was also applied in his stated capacity as a ‘director’ of Omega.

Did the defendant assume liability to ‘guarantee the loan’ as guarantor, or merely agree to agree in the future?

  1. [47]
    This issue concerns whether the defendant made an immediate promise as guarantor, or whether there was merely a note or memorandum to co-operate in some future written commitment of that kind.
  1. [48]
    I have already found that Omega made an immediate effective loan agreement. For both the loan agreements and/or the guarantee, the defendant pointed to the him not retaining any agreement,[44] and the parties’ subsequent emails about entering into a “commercial loan agreement” and repayments, and the absence of any mentioned of a personal guarantee,[45] to argue that the parties did not consider the loan agreement and/or guarantee to be more than a brief notation, not unlike a file note, with a view to entering into a future binding agreement.  I remain unable to accept the arguments.
  1. [49]
    As to the defendant’s immediate liability, the court must be satisfied that the language used within a document does not merely show that the parties contemplated that a thing might be done, but it must amount to a binding agreement upon them that the thing shall be done. A guarantee, like any other contract, may be bad for uncertainty,[46] and a doubt as to the status of a provision in a guarantee will be resolved in favour of the surety.[47] But courts are properly reluctant to strike down such commercial instruments for uncertainty.[48] 
  1. [50]
    The defendant asserts that agreement was to agree and as such was void for uncertainty, and likely lack of separate consideration. He relies upon the remarks in James v Cochrane, and referred in Franklins, that It is of course difficult as a matter of language to construe a recital (“whereas A has agreed”) as meaning “A hereby agrees”.[49]  Further and in the alternative, he argues that the words “has agreed to guarantee the loan” is not the same as he “hereby guarantees the loan”, but that at some time in the future he would negotiate and sign a guarantee.
  1. [51]
    These arguments must be considered in the circumstances of this case, in the context of the whole agreement, the loan’s purpose and express inclusion of the defendant as a party. The wording is expressed in a crude and summary fashion and in that sense lacks legal eloquence and precision associated with the use of recitals. In my opinion, the use of the term “whereas” should be afforded it ordinary meaning in the context here as “it being the case that, or considering that,”[50] in particular, that “Dennis Crossley has agreed to guarantee the loan.”  It seems to me that these immediate and unqualified terms, plainly conveys an obligation immediately assumed by the defendant to answer for Omega’s default in meeting its primary liability under the loan agreement.[51]  This was restated at the time of each variation.
  1. [52]
    Of course, the liability of a surety may be discharged even for a mere consensual variation of the terms of the principal contract between the lender/creditor and the borrower/debtor, or other prejudicial conduct.[52]  However, in the circumstances of this case, having regard to the intimate role of the defendant in the dealing, his personal acquiescence and affirmed his guarantee, I think he is precluded from avoiding his putative liability as guarantor for the unpaid portion of the loan amount.[53]
  1. [53]
    Having regard to the temporal language, and purpose of the loan, and the absolute tenor of the defendant’s promise, I find that the defendant assumed immediate and unqualified liability as guarantor in respect of the loan.

Is the purported guarantee void or unenforceable for want of consideration, and/or for uncertainty?[54]

  1. [54]
    It is well established that counter-performance by an obligee involving the making of future advances to the principal obligor/debtor is a good and sufficient consideration to support a guarantee.[55]
  1. [55]
    Even if there is some ambiguity, regard may be had to evidence of extrinsic circumstances, known to both parties, to discern the meaning to be attributed to an instrument of guarantee.[56]  What might be expressed in the past tense might, by reference to such extrinsic evidence, be interpreted as nevertheless referring to future events and performance.[57]  If a guarantee is given in consideration of further advances being made to the principal obligee, there is no necessity for a specific identification within the instrument of details of the amount of the advances, or the time at which they are to be made.[58]  Even if a written memorandum evidencing a guarantee states a bad consideration, the obligee is nevertheless entitled to prove ex post facto consideration that is good and effectual to sustain the guarantee, notwithstanding the effect of a provision such as s. 56 of the Property Law Act 1974.[59]
  1. [56]
    Upon the true construction of the loan agreements (as varied) here, it seem to me that the measure of the liability of the defendant as guarantor is the balance outstanding from the Omega to the plaintiffs by way of loan from time to time.[60]  There is a prospective or future element - a promise and expectation of future loan or advance - to the promise made in exchange for the promises made by the surety.
  1. [57]
    Having regard to my discussion above, I am persuaded that the guarantee is supported by good consideration.

What was the extent of any guarantee by the defendant?

  1. [58]
    The next question is how much of the loan was subject of the defendant was guarantee.[61]
  1. [59]
    Here, like Vetro Glass Pty Ltd v Fitzpatrick,[62] on an objective construction of the loan agreement (as varied), the true measure of the defendant’s liability is the balance from time to time outstanding from Omega in accordance with the instrument of loan.  I agree with the plaintiffs’ submission that the guarantee, as a quintessentially commercial document, and an instrument recording such a promise must be construed and applied in a reasonable and businesslike way.[63]
  1. [60]
    I have already discussed the scope of the loan agreement (as varied) being limited to the stated loan amount of $450,000.00 representing the principal indebtedness of Omega. The loan agreement (as varied) does not capture any advances in excess of $450,000.00. Omega failed to repay any money to the plaintiffs whether before the loan period of 31 December 2013, or later since the demand by the plaintiffs’ solicitors’ letter of 10 November 2016.
  1. [61]
    Therefore, subject to any other vitiating matters, the defendant’s liability as guarantor is limited to $450,000.00.

Was any liability of the defendant, as guarantor, discharged the plaintiffs breaching acting prejudicially by extending time to pay after defaults without his consent?

  1. [62]
    The defendant argues that without the consent of the defendant the plaintiffs granted time to Omega to repay amounts outstanding when default first occurred upon Omega not making repayment under the 2012 agreement by 31 March, 2013, and on subsequent occasions when the time for repayment was similarly extended by the plaintiffs.[64]  He therefore asserts that he was discharged because the consequent alteration was not “unsubstantial” or one which cannot be prejudicial to the surety.[65]
  1. [63]
    It to seems to me that the assertion that ‘the second plaintiff exercised an option to extend the term of the loan’ is a mischaracterisation of the parties’ mutual agreement to vary the loan agreement in the loan amount and period, as distinct from the exercise of any option. Even if, the plaintiffs acted in a manner which unequivocally conveyed that intent in an objectively discernible manner,[66] that did not discharge the defendant.  Absent any term to the contrary, the loan remained repayable upon demand or within a reasonable time after demand.[67]  Indeed, the mere commencement of this proceeding was a sufficient demand for repayment.[68]
  1. [64]
    In my view the defendant assumed liability in respect of ‘the loan’, which was progressively committed between the parties’ variations involving temporal extensions and the balance outstanding.  On its true construction, within this context, each variation recorded the defendant’s promise as guarantor of the balance of the loan as might be outstanding from time to time.  That is, the total unpaid loan amount of $450,000.00.

Was any liability of the defendant, as guarantor, discharged the plaintiffs breaching essential terms by demanding earlier repayment and interest?

  1. [65]
    The defendant asserts that the plaintiffs breached of essential terms of the principal contract by demanding early repayment, and charging interest.
  1. [66]
    I have concluded that the provision that the “loan is for the period up to and including 31 December 2013”, clearly means that the total outstanding loan amount was required to be repaid by that date.
  1. [67]
    It is true that the second plaintiff emailed the defendant on 30 September 2019 saying: “I felt extremely uncomfortable at our meeting this morning.  Any proposals I made was quickly deflected with uncertainty of probably resolution.  Therefore I feel I must withdraw my loan and request repayment by 21 October 2013.”[69]  It seems to me that the second defendant was merely expressing frustrated emotion on about the state of affairs (being in mind the express purpose of the loan).  I do not accept that the email was an effective demand in breach of the terms of the agreement.  The second defendant was simply desirous of ‘clarity and transparency[70] about ‘how and when you will repay the loan[71] in the circumstances leading up to the date by which the loan had to be repaid.
  1. [68]
    As to any demand of interest, the plaintiffs do not claim interest in the exercise of some purported contractual right. Of course, this does not bar the plaintiffs claiming statutory interest in this proceeding. They seek to invoke the courts discretion to aware interest in the outcome of this proceeding as litigants under s. 58 of the Civil Proceedings Act 2011 (Qld).  That is a matter of discretion, which I will allow from the commencement of this proceeding on the adjudged amount.

Was any liability of the defendant, as guarantor, discharged the plaintiffs breaching essential terms – by the second plaintiff resigning as a director and ceased continuing major input from on or about 30 September, 2013?

  1. [69]
    Further, the defendant maintains that his obligations as surety were discharged because if guarantee was entered into by the defendant, he did so on the basis that the second plaintiff was to have a continued major input into the running of Omega, but the second plaintiff resigned as a director and ceased having a continued major input into the running of Omega from on or about 30 September, 2013.
  1. [70]
    The so-called ‘conditions’ of the loan agreement (as varied) included that:
  • [The second plaintiff] to have a major input into running of the company.
  • [The second plaintiff] has the option to convert the loan to equity at the end of January.
  • [The second plaintiff] has the option for further involvement at any time in the future.
  1. [71]
    The defendant argues that continued input of the second plaintiff was clearly an essential term of the principal contract, because he was a well-known and successful businessman in the local community, whose input would have been invaluable to the company and the defendant.[72]
  1. [72]
    The loan agreement did not acknowledge the value of the second plaintiff’s profile as the defendant pleads. The agreement read as a whole, included that the express “purpose of the loan is to keep the company solvent up to” 31st January 2013, then 30st June 2013, and then to 31st December 2013, with those “fund to be used to predominantly to purchase stock in order to fulfil existing commitments and to pursue new orders”.  It seems to me that it was for the plaintiffs’ benefit that the second plaintiff was to participate in the ‘running of the company’.  And he did so as a director with all the attendant obligations as to solvency.  But by 30 September 2019, despite being a director, the second plaintiff felt wanting about Omega’s capacity to repay the loan, and he perceived that the defendant, his co-director, was engaging in obfuscation.[73] 
  1. [73]
    It is in those circumstances that the second plaintiff apparently exercised his contractual option to withdraw his further involvement in that capacity. It seems to me that his altered involvement of the second plaintiff was both contemplated by the terms of the loan agreement (as varied) and warranted in his capacity as a director.
  1. [74]
    It is not surprising that the second plaintiff’s resignation as a director was facilitated with the defendant’s personal consent and direct positive assistance.[74]  The defendant’s concurrence was evidenced by his subsequent personal assurance in his email dated 16 October, 2013: ‘Let me confirm, in writing, my commitments [sic] that you will be repaid, with interest, as soon as possible.’  Accordingly, from about 17 October 2013 the second plaintiff ceased having a major input into the running of Omega.
  1. [75]
    It seems to me the alteration was unsubstantial and not prejudicial to the defendant as surety,[75] and did not have the effect of discharging his obligations under the guarantee.

Conclusion

  1. [76]
    For these reasons, I will give judgment to the plaintiffs against the defendant and make the following orders:
  1. There be judgment for the first and second plaintiffs against the defendant for $450,000.00 for the claim, plus interest calculated on that amount from the date this proceeding started on 27 October 2017 pursuant to s 58 of the Civil Proceedings Act 2011 (Qld).
  1. Unless either party applies for, or the parties otherwise agree on, a different costs order within 14 days of this judgment - the defendant will pay the first and second plaintiffs’ costs of the application to be assessed on the standard basis.

Judge DP Morzone QC

Footnotes

[1]Defence, para 5(a)(i).

[2]The timing references in the third last & final bullet points towards the foot of the instrument were also adjusted in each of the varied Loan Agreements.

[3]Statement of Claim, para 11; Defence, para 11(a).

[4]Statement of Claim, para 11.

[5]Defence, paras 11(b) & 11(c).

[6]Statement of Claim, paras 12 & 13, Defence, para 12(b).

[7]Statement of Claim, para 14, Defence, para 12(b).

[8]Statement of Claim, para 15, Defence, para 13.

[9]Statement of Claim, paras 16, Defence, para 14(a).

[10]Defence, paras 5(a), 7(a) & 9(a).

[11]Defence paras 6(c)(ii), 8(c)(ii, 10(c)(ii) & 11(c).

[12]The defendant asserts that it was implicit in the words ‘Dennis Crossley has agreed to guarantee the loan’ that a separate guarantee document would be created. Defence paras 6(b)(i), 8(b)(i) & 10(b)(i).

[13]Statement of Claim paras 6, 8 & 10; Defence paras 6(a), 8(a) & 10(a).

[14]Defence, paras 5(b)(ii) & 7(b)(iii).

[15]Defence, paras 6(b)(ii)(A), 8(b)(ii) & 10(b)(ii).

[16]Defence, paras 6(b)(ii)(B), 8(b)(ii) & 10(b)(ii).

[17]Defence, paras 5(a), 7(a) & 9(a).

[18]At least insofar as the parties explicitly agreed under each instrument committed to that the Second Plaintiff, Mr Iovannella would have  ‘… the option for further involvement at any time in the future’.

[19]Williams Bros v Ed T Agius Ltd [1914] AC 510, at 527; and compare Balanced Securities Pty Ltd v Dumayne Property Group Pty Ltd [2017] VSCA 61, at [60] et seq; and NAB Limited v Murphy [2018] QSC 106, at [68].

[20]Mere proof of payment of an amount of money by one person to another is sufficient to evidence a prima facie obligation on the part of the recipient to repay the amount advanced upon demand, and within a reasonable period of the making of the demand: Seldon v Davidson [1968] 1 WLR 1083, at 1090. Although, in Australia at least, the onus of proof remains - at least initially - with the lender: compare Heydon v Perpetual Executors (1930) 45 CLR 111 and Schmierer v Taouk [2004] NSWSC 345, at [62] and [63].  Also, Compare Young v Queensland Trustees (1956) 99 CLR 560, at 569-570; and Julong Pty Ltd v Fenn [2002] QSC 26, at [16](e).

[21]Compare Seldon v Davidson [1968] 1 WLR 1083, at 757 and 759.

[22]Exhibit 33.

[23]Compare De Havilland v Bowerbank (1807) 1 Camp 50, at 51 (170 ER 872, 873); Fruhling v Schroeder (1835) 2 Bing NC 77, at 79 (132 ER 31, 32); and Rhodes v Rhodes (1860) Johns 653, at 655 (70 ER 581, 582).

[24]Email of 16/10/19 (Exhibit 20).

[25]Discussion of 16/10/13 (Reply 2(d)(viii)) & email exchange of 17/10/19 (Exhibit 21, 22 & 23), & later discussion of repayment absent mention of any guarantee (eg. Exhibits 26, 27 & 28).

[26]Hillas v Arcos (1932) 147 LT 503 at 514.

[27]The latter part was referred to in part with apparent approval by Gibbs J in Australian Broadcasting Commission v Australian Performing Right Association Ltd (1973) 129 CLR 99 at 109; & in full in Zhang v BM Sydney Building Materials Pty Ltd [2016] NSWCA 166 at [44].

[28]Compare the observation of Kirby J to this effect in Pan Foods Co Importers & Distributors Pty Ltd v Australia & New Zealand Banking Group Ltd (2000) 74 ALJR 791 at 794 at [24].

[29]Cf. Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 at [35] per French CJ, Hayne, Crennan & Kiefel JJ, drawing on Arden LJ in Re Golden Key [2009] EWCA Civ 636 at [28].

[30]Defence paras 10(c)(i) & (ii).

[31]Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424 at [17] (omitting sub-references).

[32]Aquawest Pty Ltd v Twynham [2017] NSWSC 652.

[33]Aquawest Pty Ltd v Twynham [2017] NSWSC 652 at [27].

[34]Clark Equipment Credit of Australia Ltd v Kiyose Holdings Pty Ltd (1989) 21 NSWLR 160 at 174. As to the admissibility of evidence of surrounding circumstances, compare for example Donau Pty Ltd v ASC AWD Shipbuilder Pty Ltd [2018] NSWSC 1273, particularly at paras [44] & [45].

[35]As McHugh JA (as he then was) observed in Scottish Amicable Life Assurance Society v Reg Austin Insurances Pty Ltd (1985) 9 ACLR 909 at 923.

[36]As McHugh JA also commented in Scottish Amicable Life Assurance Society v Reg Austin Insurances Pty Ltd at 923.

[37]Compare Pavlovic v Universal Music Australia Pty Ltd (2015) 90 NSWLR 605 at [65]; Leahy v Hill [2018] NSWSC 6 at [14].

[38]In other words, not just personally, but as the authenticating officer of a corporation – see Wharf St Pty Ltd v Amstar Learning Pty Ltd [2004] QCA 256, at [11].

[39]Compare Reozone Pty Ltd v Santoro [2016] NSWSC 1383; and Clarke Equipment Credit of Australia Pty Ltd v Kiyose Holdings Pty Ltd (1989) 21 NSWLR 160, at 174.

[40](1985) 9 ACLR 909 at 923.

[41]Cf. Reozone Pty Ltd v Santoro [2016] NSWSC 1383.

[42]Cf. Burrell & Family Pty Ltd v Harris [2010] SASC 184.

[43]Cf. Howard Smith & Co Ltd v Varawa (1907) 5 CLR 68 at 77; Barrier Wharfs Ltd v W Scott Fell & Co Ltd (1908) 5 CLR 647 at 668-669 & 672; the observations of Kelly SPJ & Williams J (as he then was) in Riches v Hogben [1986] 1 Qd R 315 at 316 & 329 respectively; & those of Muir JA (with whom White JA & Fryberg J agreed) in Weemah Park Pty Ltd v Glenlaton Investments Pty Ltd [2011] 2 Qd R 582 at 596, para [38].

[44]Email of 16/10/19 (Exhibit 20).

[45]Discussion of 16/10/13 (Reply 2(d)(viii)) & email exchange of 17/10/19 (Exhibit 21, 22 & 23), & later discussion of repayment absent mention of any guarantee (eg. Exhibits 26, 27 & 28).

[46]Stromdale and Ball Pty Ltd v Burden [1952] 1 Ch 223, at 230.

[47]Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549 at 561.

[48]Lindsay v L. Stevenson & Sons Ltd (1891) 17 VLR 112, at 115.

[49]James v Cochrane (1852) 7 Exch 170 [155 ER 903], referred to in Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603 at [392]. 

[50]Macquarie Dictionary, on line, 2019.

[51]Rava v Logan Wines Pty Ltd [2007] NSWCA 62 at [39].

[52]Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549, at 559.

[53]Cf. Williams v Frayne (1937) 58 CLR 710 at 717, & Mineralogy Pty Ltd v BGP Geoexplorer Pte Ltd [2017] QSC 219 at [76] et seq.

[54]Defence, paras 6(b)(ii)(A), 8(b)(ii) and 10(b)(ii).

[55]Compare, for example, Smith v Passmore (1883) 4 LR (NSW) 274; SH Lock Discounts & Credits Pty Ltd v Miles [1963] VR 656; and Westhead v Sproson (1861) 6 H & N 728 (158 ER 301).

[56]Smith v Passmore (1883) 4 LR (NSW) 274.

[57]Smith v Passmore (1883) 4 LR (NSW) 274.

[58]White v Woodward (1848) 5 CB 810 (136 ER 1097); Simpson v Manley (1831) 2 Cr & J 12 (149 ER 5); and Vetro Glass Pty Ltd v Fitzpatrick [1963] 63 SR (NSW) 697.

[59]Cf. Goldman & Son v Heathwood & Heathwood (1939) QWN 5].

[60]Vetro Glass Pty Ltd v Fitzpatrick [1963] 63 SR (NSW) 697.

[61]Compare paras 6, 8 & 10 of the Statement of Claim, with the responsive allegations in paras 6(a), 8(a) & 10(a) of the Defence.

[62][1963] 63 SR (NSW) 697.

[63]Mineralogy Ptd v BGP Geoexporer Pte Ltd [2017] QSC 219, at [46] et seq; Vetro Glass Pty Ltd v Fitzpatrick [1963] 63 SR (NSW) 697, Parkinson v Booth (1934) 34 SR (NSW) at 188.

[64]Defence, para 5(b)(ii).

[65]Holme v Brunskill (1877) 3 QBD 495.

[66]Compare Ballas v Theophilos (No 2) (1957) 98 CLR 193, at 196; Prudential Assurance Co Ltd v Health Minders Pty Ltd (1987) 9 NSWLR 673, at 677; and Hills Central Pty Ltd v Hagerty [2018] NSWSC 789, at [34] et seq.

[67]Seldon v Davidson [1968] 1 WLR 1083, at 1090. Although, in Australia at least, the onus of proof remains - at least initially - with the lender: compare Heydon v Perpetual Executors (1930) 45 CLR 111 and Schmierer v Taouk [2004] NSWSC 345, at [62] and [63].

[68]Julong Pty Ltd v Fenn [2002] QSC 26, at [17].

[69]Exhibit 11.

[70]Exhibit 13.

[71]Exhibit 14.

[72]Defence paras. 20(a), (b), (c), and to Tab 29.

[73]Exhibits 11 – 14.

[74]Exhibits 12 & 15.

[75]Holme v Brunskill (1877) 3 QBD 495.

Close

Editorial Notes

  • Published Case Name:

    Sea Trek Dive Services Pty Ltd and Peppi Iovannella v Dennis Alan Crossley

  • Shortened Case Name:

    Sea Trek Dive Services Pty Ltd v Crossley

  • MNC:

    [2019] QDC 126

  • Court:

    QDC

  • Judge(s):

    Morzone DCJ

  • Date:

    23 Jul 2019

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2019] QDC 12623 Jul 2019Judgment for the first and second plaintiffs on their claim for breach of contract (a guarantee) in the amount of $450,000: Morzone QC DCJ.
Notice of Appeal FiledFile Number: Appeal 8846/1923 Aug 2019-
Appeal Determined (QCA)[2020] QCA 3503 Mar 2020Appeal dismissed: Sofronoff P and Morrison and Mullins JJA.

Appeal Status

Appeal Determined (QCA)

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