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Robke v Chief Executive, Department of Transport and Main Roads; Robke & Anor v Mackay Sugar Limited (No 2)[2025] QLC 6

Robke v Chief Executive, Department of Transport and Main Roads; Robke & Anor v Mackay Sugar Limited (No 2)[2025] QLC 6

LAND COURT OF QUEENSLAND

CITATION:

Robke & Anor v Chief Executive, Department of Transport and Main Roads; Robke & Anor v Mackay Sugar Limited (No 2) [2025] QLC 6

PARTIES:

Kerrie Maree Robke

(applicant)

David Carl Robke

(applicant)

v

Chief Executive, Department of Transport and Main Roads

(respondent)

FILE NO:

AQL036-23

PARTIES:

Kerrie Maree Robke

(applicant)

David Carl Robke

(applicant)

v

Mackay Sugar Limited

ACN 057 463 671

(respondent)

FILE NO:

SIA035-23

PROCEEDING:

Determination of compensation under Acquisition of Land Act 1967 and Sugar Industry Act 1999

DELIVERED ON:

31 March 2025

DELIVERED AT:

Brisbane

HEARD ON:

Submissions closed 28 February 2025

HEARD AT:

On the papers

MEMBER:

ND Loos

ORDERS:

  1. 1.
    The amount of compensation determined by Order on 30 January 2025 be paid to the applicants as follows:
  1. (a)
    $950,567.86 by the Chief Executive, Department of Transport and Main Roads; and
  1. (b)
    $27,960 by Mackay Sugar Limited.
  1. 2.
    The respondents pay to the applicants interest in the amount of $119,748.42 as follows:
  1. (a)
    $116,258.42 by the Chief Executive, Department of Transport and Main Roads; and
  1. (b)
    $3,490 by Mackay Sugar Limited.
  1. 3.
    The applicants pay the respondents’ costs incurred on and after 14 October 2024, to be assessed on the standard basis.

CATCHWORDS:

COSTS – COMPULSORY ACQUISITION – section 27 of the Acquisition of Land Act 1967 – where the award of compensation was closer to the amount the respondent was willing to pay for the compulsory acquisition of the applicants’ land – where the applicants chose not to make any submissions on the respondents’ claim for costs – where the applicants chose not to make any claim for costs – where the respondents claim a fixed amount for costs – whether any amount of costs awarded against the applicant should be reduced given the burden on the applicants in having to pay costs out of compensation – whether it was reasonable for the applicants to reject without prejudice offer in light of evidence against them – costs awarded to respondent as assessed

COSTS – COMPULSORY ACQUISITION – section 68 of the Sugar Industry Act 1999 – where the Act gives jurisdiction to the Court to decide the amount of any compensation payable – where the Act is otherwise silent on issue of costs of proceeding – where the respondents claim legal and associated costs – whether the Court can award costs under section 27A of the Land Court Act 2000 – costs awarded to respondent as assessed

REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – COMPENSATION – ASSESSMENT – INTEREST – where interest is accepted as compensation for compulsory acquisition of land – where amount of interest to be determined – where only one party made submissions on the amount of interest to be awarded – interest awarded to applicants

REAL PROPERTY – COMPULSORY ACQUISITION OF LAND – COMPENSATION – ASSESSMENT – SEPARATE INTERESTS – where the claim was against two separate respondents under two separate Acts – where the apportionment of the compensation to be paid to the applicant was requested to be decided by the Court – where only the respondent made submissions on apportionment – submissions about the apportionment of compensation to be paid by each of the respondents accepted by the Court

Acquisition of Land Act 1967, s 27, s 28

Land Court Act 2000, s 27A

Sugar Industry Act 1999, s 68

Caseldan Pty Ltd v Moreton Bay Regional Council (No. 2) [2015] QLC 7, considered

Dillon v Gosford City Council (2011) 184 LGERA 179, citedEllwood v Mackay Sugar Co-operative Association Ltd [2007] QLC 52, cited

Haber v Chief Executive, Department of Main Roads [2005] QCA 123, cited

Halley v Minister Administering the Environmental Planning and Assessment Act 1979 [2011] NSWLEC 94, cited

Mentech Resources Pty Ltd v MCG Resources Pty Ltd (2012) 33 QLCR 43, considered

Pastrello v Roads and Traffic Authority (NSW) (2000) 110 LGERA 223, considered

Robke & Anor v Chief Executive, Department of Transport and Main Roads; Robke & Anor v Mackay Sugar Ltd [2025] QLC 3, cited

Ross v Dale [2022] QLC 13, cited

Vass and Lambert v Coordinator-General (No. 2) (2015) 36 QLCR 21, applied

Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2010] NSWLEC 27, cited

Westpac Banking Corporation v Jamieson [2015] QCA 84, considered

Yalgan v Shire of Albert (1997-1998) 17 QLCR 401, considered

APPEARANCES:

Mrs K Robke, self-represented, for the applicants

Mr K Wylie of Counsel (instructed by Clayton Utz) for the respondents

  1. Introduction
  1. [1]
    Compensation has been determined for land taken by the respondents.  On 30 January 2025, the Court made orders and delivered reasons.
  2. [2]
    Remaining for determination is the apportionment of compensation to be paid by the respondents, interest and costs.
  3. [3]
    Those matters were set to be determined on the papers. 
  4. [4]
    The respondents filed an affidavit of Ms Pollard and a ‘Further Outline of Argument for the Respondents Compensation Allocation, Interest and Costs’.
  5. [5]
    The Robkes wrote a letter to the Court dated 26 February 2025 which was accepted by the Court Registry and placed on the Court file.[1]
  1. Apportionment of compensation between the two respondents
  1. [6]
    The respondents provided details of an apportionment agreed between them.  Ms Pollard’s affidavit contains a breakdown of that, as follows:

Item

Compensation amount

Apportionment to ALA Claim

Apportionment SIA Claim

Basis for apportionment

Construction disturbance (2017 – 2020)

$220,112

$220,112

$0

Apportioned as per claims (100% ALA)

Farming and rearrangement – already incurred

$176,370

$176,370

$0

Apportioned as per claims (100% ALA)

Farming and rearrangements – yet to be incurred

$220,736

$220,736

$0

Apportioned as per claims (100% ALA)

Legal and other consultancy costs – already incurred

$29,861.26

$29,861.26

$0

Apportioned as per claims (100% ALA)

Legal and other consultancy costs – yet to be incurred

N/A

N/A

N/A

N/A

Reduced cropping area excluding essential access roads (4.96 ha)

$9,350

$8,415

$935

Based on a 90% ALA and 10% SIA split

Reduced cropping area from construction of essential access roads (0.4896 ha)

$14,059

$14,059

$0

Apportioned as per claims (100% ALA)

Increased costs due to additional travel

$20,587

$20,587

$0

Apportioned as per claims (100% ALA)

Increased costs due to weed introduction

$34,000

$30,600

$3,400

Based on a 90% ALA and 10% SIA split

Increased costs due to vermin

$21,250

$19,125

$2,125

Based on a 90% ALA and 10% SIA split

Increased costs in road maintenance

$4,590

$4,590

$0

Apportioned as per claims (100% ALA)

Economic loss from paddock 8-1 not being cultivated

$12,612.60

$12,612.60

$0

Apportioned as per claims (100% ALA)

Value of the land taken from date of resumption

$215,000

$193,500

$21,500

Based on a 90% ALA and 10% SIA split

Interest at Land Court rate

Detailed below

Detailed below

Detailed below

Detailed below

Totals

$978,527.86

$950,567.86

$27,960

  1. [7]
    The Robkes make no submissions about the apportionment, other than to say that it is irrelevant to them.
  2. [8]
    I accept the apportionment advanced by the respondents.   The compensation should be paid to the applicants by the respondents as set out in the table at paragraph [6] above.
  1. Interest
  1. [9]
    Ms Pollard’s affidavit calculates interest at $114,239.82, with a further amount of $91.81 per day from 30 January 2025.
  2. [10]
    The Robkes make no submissions about the calculation of interest. They say they will “accept the courts calculations”. 
  3. [11]
    I accept what the respondents have calculated.[2]
  4. [12]
    Ms Pollard’s affidavit contains a breakdown of how the interest ought to be apportioned between the respondents, as follows:

Item

Interest

Apportionment to ALA Claim

Apportionment SIA Claim

Basis for apportionment

Construction disturbance (2017 – 2020)

$39,846

$39,846

$0

Apportioned as per claims (100% ALA)

Farming and rearrangement – already incurred

$33,413.28

$33,413.28

$0

Apportioned as per claims (100% ALA)

Farming and rearrangements – yet to be incurred

$0

$0

$0

Apportioned as per claims (100% ALA)

Legal and other consultancy costs – already incurred

$4,290.09

$4,290.09

$0

Apportioned as per claims (100% ALA)

Legal and other consultancy costs – yet to be incurred

N/A

N/A

N/A

N/A

Reduced cropping area excluding essential access roads (4.96 ha)

$1,539.17

$1,385.25

$153.92

Based on a 90% ALA and 10% SIA split

Reduced cropping area from construction of essential access roads (0.4896 ha)

$2,244.06

$2,244.06

$0

Apportioned as per claims (100% ALA)

Increased costs due to additional travel

$3,388.98

$3,388.98

$0

Apportioned as per claims (100% ALA)

Increased costs due to weed introduction

$5,596.99

$5,037.29

$559.70

Based on a 90% ALA and 10% SIA split

Increased costs due to vermin

$3,498.12

$3,148.31

$349.81

Based on a 90% ALA and 10% SIA split

Increased costs in road maintenance

$755.59

$755.59

$0

Apportioned as per claims (100% ALA)

Economic loss from paddock 8-1 not being cultivated

$910.48

$910.48

$0

Apportioned as per claims (100% ALA)

Value of the land taken from date of resumption

$18,757.06

$16,881.35

$1,875.71

Based on a 90% ALA and 10% SIA split

Totals

$114,239.82

$111,300.68

$2,939.14

As above.

  1. [13]
    I accept that allocation.
  2. [14]
    There remains the matter of the interest accumulated since 30 January 2025.  That is 60 days multiplied by $91.81 = $5,508.60. 
  3. [15]
    That is apportioned $4,957.74 (90%) to be paid by the Chief Executive and $550.86 (10%) to be paid by Mackay Sugar Limited.[3]
  1. Costs – Chief Executive
  1. [16]
    The respondents seek their costs. 
  2. [17]
    Section 27 of the Acquisition of Land Act 1967 states:
  1. 27
    Costs
  1. (1)
    Subject to this section, the costs of and incidental to the hearing and determination by the Land Court of a claim for compensation under this Act shall be in the discretion of that court.
  1. (2)
    If the amount of compensation as determined is the amount finally claimed by the claimant in the proceedings or is nearer to that amount than to the amount of the valuation finally put in evidence by the constructing authority, costs (if any) shall be awarded to the claimant, otherwise costs (if any) shall be awarded to the constructing authority.
  1. (3)
    Subsection (2) does not apply to any appeal in respect of the decision of the Land Court or to costs awarded pursuant to section 24(3) or section 25(3).
  1. [18]
    The respondents seek either:
    1. an order that the Robkes pay the respondents’ costs on the standard basis, to be assessed at the Supreme Court scale; or
    2. costs in the fixed sum of $335,000.[4]
  2. [19]
    They identify six reasons that they say “strongly tend toward a costs order being made in [their] favour”:
    1. the compensation amount claimed by the Robkes ($4,094,625) was “grossly exaggerated”;
    2. the respondents have not engaged in any disqualifying conduct;
    3. the Robkes raised issues of flooding, agriculture and civil/structural engineering but did not call expert evidence in support of those issues;
    4. the respondents enjoyed a remarkable level of success;
    5. while regard must be had to the unfairness of a costs order where landowners were essentially required to go to trial to obtain fair compensation, that is not a circumstance here given the Robkes rejected without prejudice offers before the trial; and
    6. the significant burden placed on the Robkes by having to pay the respondents’ costs from their compensation amount is offset by their decision to pursue “too high a claim”: Haber v Chief Executive, Department of Main Roads [2005] QCA 123, [35].
  3. [20]
    Ms Pollard’s affidavit reveals that the Robkes rejected without prejudice offers as follows:
    1. by letter dated 19 January 2023, an offer of $1,143,523 (inclusive of the $190,000 advance, so in effect, an offer to pay $953,523); and
    2. by letter dated 14 October 2024, an offer of $1,200,000 (inclusive of the $190,000 advance, so in effect, an offer to pay $1,010,000).
  4. [21]
    The 19 January 2023 letter included an offer of an additional $5,000 for the Robkes to obtain independent legal advice in relation to the without prejudice offer.  It is not clear whether the Robkes took that up.
  5. [22]
    The Robkes make no submissions about why the respondents should not get their costs.[5]
  6. [23]
    The Robkes claim no costs.  That is surprising because the reasons of 30 January 2025 identified particular expenses sought by the Robkes which could only be claimed as costs of the litigation.[6] 
  7. [24]
    As to the respondents’ arguments set out at paragraph [19] above, it is my view that:
    1. the Robkes’ claim for $4,094,625 was more than just enthusiastic, it was exaggerated.  In this respect, I accept the respondents’ point that an indication of that is that the value of the entire cane farm before the resumption was $1,780,000.  The Robkes lost about 3.945 hectares of land.  Before the resumption the cane farm was 65.7445 hectares in total.  That means that they lost about 6% of the farm.  Their claims for compensation (including substantial disturbance costs) totalled more than twice the value of the entire farm.  It was also exaggerated for the Robkes to claim disturbance costs for 25 years into the future.
    2. I agree the respondents did not engage in any disqualifying conduct;
    3. I agree the respondents assisted the Court by calling expert evidence in flooding, agriculture and civil/structural engineering, where the Robkes put those areas in issue;
    4. I agree the respondents were successful in the proceedings.
  8. [25]
    Set against those conclusions is the negative impact on the Robkes of a costs order.  To make a fixed costs order for $335,000 would significantly erode their compensation of $978,527.86 for the unavoidable loss of their land.[7]  There needs to be a strong justification for awarding costs against an applicant where the effect of making that order is to erode the benefit of the just compensation recovered as a consequence of the Court’s determination.[8]
  9. [26]
    In New South Wales, there is authority for the principle that:
  1. a person who has had their land taken by way of compulsory acquisition should not bear their own costs, but rather should be allowed to access the Court to present an arguable and well organised case without being deterred by the prospect of being ordered to pay costs if the case proves unpersuasive[9]
  1. [27]
    That principle makes clear sense.  The New South Wales cases that support it were decided under statutory regimes where there was no equivalent to section 27 of the ALA.  Similar principles appear in the Queensland authorities.[10]
  2. [28]
    The relevant principles for this application are stated in the Land Appeal Court decisions in:
    1. Yalgan v Shire of Albert (1997-1998) 17 QLCR 401 at 406-408;
    2. Mentech Resources Pty Ltd v MCG Resources Pty Ltd (2012) 33 QLCR 43 at [4];[11]
    3. Vass and Lambert v Coordinator-General (No. 2) (2015) 36 QLCR 21 at [15]-[56].
  3. [29]
    In Yalgan, the Land Appeal Court distilled 11 propositions from earlier cases, including:
  1. (j)
    Section 27(2) of the Acquisition of Land Act 1967 should not be regarded as a legislative suggestion that, where the claim is substantially more than the amount awarded, and the amount put in evidence by the constructing authority is not substantially less than the amount awarded, the Court should not merely refrain from awarding any costs to the claimant but should award costs to the authority but should award costs to the authority (Moyses at p. 274).
  1. (k)
    Where the Land Court is considering whether it should award costs to a constructing authority, it could be wrong to have regard merely to the amounts of the claim and of the award and of the value put into evidence by the authority. Usually it would be more relevant to enquire whether the conduct of the complainant (such as, for example, making an exorbitant claim) has been such as to force the authority, unreasonably and unnecessarily, into litigation (Moyses at p. 274) or whether the claimant has pursued a vexation, dishonest or grossly exaggerated claim or presented his case in such a way as to impose unnecessary burdens on the constructing authority or the Court (Banno at p. 53).[12]
  1. [30]
    Vass and Lambert stated that section 27 of the ALA requires the application of a two stage process:[13]
    1. first, determine whether the party claiming costs is eligible for an award of costs under section 27(2) of the ALA;
    2. second, determine, in the exercise of the Court’s discretion, whether costs should be awarded to the eligible party, in the circumstances of the case (s 27(1)).
  2. [31]
    Here, the respondents satisfy the first stage – the determination of compensation was nearer to the amount that they put in evidence.[14] 
  3. [32]
    As to the second stage, my view is:
  1. (a)
    I give weight to the matters set out in paragraph [24] and [25] above;
  1. (b)
    the Robkes claim was not vexatious or dishonest;
  1. (c)
    while the Robkes did not call expert evidence in each of the contentious fields of expertise, they did not conduct themselves at the hearing in such a way as to impose unnecessary burdens on the constructing authority or the Court (that is, their submissions and the questions they asked of the witnesses were reasonably confined and to the point);
  1. (d)
    that their claim was grossly exaggerated ought to have become clear to the Robkes upon receiving the final versions of the respondents’ evidence.  The respondents’ final reports – which they relied on at trial – were filed:
  1. (i)
    Mr Williams’ valuation report – 9 September 2024;
  1. (ii)
    Mr Daly’s flood reports – 29 August 2024 and 5 September 2024;
  1. (iii)
    Mr Thompson’s report about farm operations and re-arrangement – 5 September 2024;
  1. (iv)
    Mr Lunn’s accounting report – 4 September 2024; and
  1. (v)
    Mr Pinkney’s civil engineering report – 18 September 2024.
  1. (e)
    the Robkes had received earlier versions of the Thompson, Daly and Williams reports in July, August and October 2023.  The distinction between the earlier and later versions is that the final reports contained responses to the Robkes’ evidence and arguments.  Having the entire package of the respondents’ evidence – ie. the final reports and the new reports of Mr Lunn and Mr Pinkney – put the Robkes in a position in September 2024 to have a clear picture of the case against them;
  1. (f)
    when the respondents’ without prejudice save as to costs letter of 14 October 2024 arrived,[15] the Robkes were well placed to assess the prospects and consider that offer;
  1. (g)
    for the Robkes to litigate past 14 October 2024 – equipped as they were with full details of the case against them – was unreasonable.
  1. [33]
    On the evidence, I am not prepared to make a fixed costs order.  I do not doubt the correctness of the figures in Ms Pollard’s affidavit.  There is, however, no detailed information about what those headline costs involved, nor is there a breakdown of the costs incurred before and after each without prejudice letter.
  2. [34]
    The order will be that the Robkes pay the respondents’ costs incurred on and after 14 October 2024, assessed on the standard basis.  The costs assessor ought to decide whether to conduct the assessment on the Supreme Court scale or the District Court scale.
  1. Costs – Mackay Sugar Limited
  1. [35]
    Section 68 of Sugar Industry Act 1999 says the Court can decide “the amount of any compensation payable” for the claim against Mackay Sugar Limited.  It does not say anything about costs.
  2. [36]
    The respondents submit that Mackay Sugar Limited is entitled to costs because the Court has been willing to make costs orders under earlier, similar, legislation.[16]  They also cite Ross v Dale [2022] QLC 13.  That case concerned a dispute under the SIA, but resulted in an order for costs made pursuant to section 27A of the Land Court Act 2000
  3. [37]
    It is my view that where the SIA is silent about costs, it is appropriate to default to the Land Court Act.  Under section 27A, Mackay Sugar Limited ought to have 10% of the total costs assessed in accordance with my conclusion at paragraph [34] above.
  1. Orders
  1. [38]
    The orders are:
  1. (a)
    The amount of compensation determined by Order on 30 January 2025 be paid to the applicants as follows:
  1. (i)
    $950,567.86 by the Chief Executive, Department of Transport and Main Roads; and
  1. (ii)
    $27,960 by Mackay Sugar Limited.
  1. (b)
    The respondents pay to the applicants interest in the amount of $119,748.42 as follows:
  1. (i)
    $116,258.42 by the Chief Executive, Department of Transport and Main Roads; and
  1. (ii)
    $3,490 by Mackay Sugar Limited.
  1. (c)
    The applicants pay the respondents’ costs incurred on and after 14 October 2024, to be assessed on the standard basis.

Footnotes

[1]  Letter of 26 February 2025 addressed to the Land Court of Queensland and others, filed 26 February 2025.

[2]  The Court concluded in Ellwood v Mackay Sugar Co-operative Association Ltd [2007] QLC 52 at [55] that interest is implicitly included in the term “compensation” in section 68 of the Sugar Industry Act 1999.

[3]  Affidavit of Majella Pollard, page 8.

[4]  Reduced from the total amount the respondents incurred.

[5]  However, they say they would have no option but to appeal the 30 January 2025 decision in the event the Chief Executive seeks costs and the court awards those costs.

[6] Robke & Anor v Chief Executive, Department of Transport and Main Roads; Robke & Anor v Mackay Sugar Ltd [2025] QLC 3, [155]-[156], [158].

[7]  On this point, I am not taking into account the disparity in the positions of the parties: Westpac Banking Corporation v Jamieson [2015] QCA 84 at [16]-[18].

[8] Pastrello v Roads and Traffic Authority (NSW) (2000) 110 LGERA 223 at [17], approved of in Lonergan & Anor v Friese (No. 2) [2020] QLAC 4 at [28].

[9]Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2010] NSWLEC 27 at [35], cited with approval in Dillon v Gosford City Council (2011) 184 LGERA 179 at 63 (Basten JA).  Basten JA cited other authorities in support of the same principle at [61]-[65], including the comprehensive review of authorities in Halley v Minister Administering the Environmental Planning and Assessment Act 1979 [2011] NSWLEC 94 at [43]-[46].

[10]Yalgan v Shire of Albert [1997-1998] 17 QLCR 401 at 407, point (e) on that page; Barns v Director-General, Department of Transport (1997-1998) 8 QLCR 133 at 135-136.

[11]  The decision was about the Land Appeal Court’s power to award costs, but the principle has been applied by the Land Court: Caseldan Pty Ltd v Moreton Bay Regional Council (No. 2) [2015] QLC 7

[12]Yalgan v Shire of Albert (1997-1998) 17 QLCR 401 at 408.

[13]  At [32].

[14]  Noting that for the amount finally claimed by the Robkes and the amount of the valuation put in evidence by the respondents, disturbance costs are relevant: Vass and Lambert at [45].

[15]  That offer was set to lapse at 4pm on 23 October 2024.  It is unclear from the evidence when the Robkes rejected the offer.

[16] Denar Pty Ltd v Mackay Sugar Co-Operative Association Ltd [2002] QLC 33.

Close

Editorial Notes

  • Published Case Name:

    Robke & Anor v Chief Executive, Department of Transport and Main Roads; Robke & Anor v Mackay Sugar Limited (No 2)

  • Shortened Case Name:

    Robke v Chief Executive, Department of Transport and Main Roads; Robke & Anor v Mackay Sugar Limited (No 2)

  • MNC:

    [2025] QLC 6

  • Court:

    QLC

  • Judge(s):

    ND Loos

  • Date:

    31 Mar 2025

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Caseldan Pty Ltd v Moreton Bay Regional Council (No. 2) [2015] QLC 7
2 citations
Denar Pty Ltd & Shepherd v Mackay Sugar Co-Operative Association Ltd [2002] QLC 33
1 citation
Ellwood v Mackay Sugar Co-Operative Association Limited [2007] QLC 52
2 citations
Haber v Chief Executive, Department of Main Roads [2005] QCA 123
2 citations
Lonergan v Friese (No 2) [2020] QLAC 4
1 citation
Mentech Resources Pty Ltd v MCG Resources Pty Ltd (in liq) (No 2) (2012) 33 QLCR 43
2 citations
Pastrello v Roads and Traffic Authority (NSW) (2000) 110 LGERA 223
2 citations
Robke v Chief Executive, Department of Transport and Main Roads; Robke & Anor v Mackay Sugar Ltd [2025] QLC 3
2 citations
Ross v Dale [2022] QLC 13
2 citations
Vass and Lambert v Coordinator-General (No. 2) (2015) 36 QLCR 21
2 citations
Westpac Banking Corporation v Jamieson [2015] QCA 84
2 citations
Yalgan Investments Pty Ltd v Council of the Shire of Albert (1997-1998) 17 QLCR 401
3 citations

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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