RE MOULIN GLOBAL EYECARE HOLDINGS LTD

HCCW 470/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES (WINDING-UP) NO 470 OF 2005

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D E C I S I O N

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1.  In both sets of HCCW proceedings, the respondent Liquidators apply (A) to strike out an affirmation filed by a Mr Xie on behalf of the applicants; and (B) for an order for cross-examination of Mr Xie.

THE BACKGROUND

2.  Moulin Global Eyecare Holdings Limited (“Moulin”) used to be a listed company and the ultimate parent of a group of companies and a substantial multi-national group engaged in manufacturing, marketing and sales of optical products.  Leadkeen Industrial Limited (“Leadkeen”) was its wholly owned subsidiary.  Moulin and Leadkeen are in liquidation.  The respondents have been appointed as their Liquidators.

3.  The applicants (“BOC”) sought to recover debts based on the Guarantees executed by Moulin and Leadkeen respectively.  Relying on Mainland judgments against Moulin and Leadkeen (upheld on appeal) in their favour, BOC lodged proofs of debt, but they have been rejected by the Liquidators. 

4.  BOC lodged appeals under Rule 95 of the Companies Winding-up Rules (Cap 32H) (“Rule 95”), supported by the affirmation of Mr Xie Wei (“Xie-1^st”).  In that affirmation, the sole question for the appeal was whether the Mainland judgments gave rise to res judicata which bound the Liquidators to admit BOC’s proofs of debt in the respective liquidation.

5.  The Liquidators contest the appeal on the grounds, amongst others, that it is necessary to go behind the Mainland judgment to investigate the genuineness or otherwise of the purported BOC loans/Guarantees.  Moreover, since BOC refused to cooperate with the investigations, the Liquidators seek an order for discovery against BOC to provide the documents in support of their proofs of debt.  An affidavit of Mr Batchelor was filed on behalf of the Liquidators.

6.  The evidence of the Liquidators showed that there was no record of the Moulin Guarantee, the Leadkeen Guarantee, the Moulin Minutes and the Leadkeen Minutes authorising execution of the Guarantees.  The nature of dealings between the Moulin Group and the Borrower of the loans and the reasons why Moulin and Leadkeen had chosen to guarantee the debts of the Borrower were also not known to the Liquidators.

7.  The Mainland court appointed expert concluded that the signature of Ma Bo Kee (former Chairman) and the stamp of Lead Keen (not Leadkeen) Industrial Limited on the Leadkeen Guarantee was different from the samples of genuine signatures and chops provided by BOC.  However, Ma Bo Kee made a declaration on 21 July 2006 that he had in fact signed the Leadkeen Guarantee, without condescending upon particulars.  Ma Bo Kee did not attend the Mainland hearings.  His lawyer represented to the court that all of the signatures of Ma Bo Kee on the Moulin Guarantee, Leadkeen Guarantee, the Moulin Minutes and Leadkeen Minutes were genuine.  The Mainland judgments relied upon Ma Bo Kee’s evidence, especially his declaration in rejecting the findings of the court appointed expert.

8.  The Liquidators’ enquiries with BOC met with unforthcoming responses and refusal to provide documents.  Upon the evidence then available to it, the Liquidators adjudicated upon and rejected BOC’s proofs of debt. 

9.  The Liquidators now claim that “new evidence” had emerged which called into question the bases of the Mainland judgments. That was the conviction of Ma Bo Kee and other key officers on charges of conspiracy to publish a false statement and conspiracy to defraud.  The findings of the criminal court in the Court of First Instance showed that the fraudulent conduct of Ma Bo Kee, his family members and associates included the presentation of false or forged documents to banks for the purpose of raising funds; unauthorized execution of loan and security documents on behalf of Moulin by Ma Bo Kee and Cary Ma; and unauthorized execution of false board minutes by Ma Bo Kee and Cary Ma.  During the criminal trial, Ma Bo Kee lied to the court.  The Liquidators’ interviews with one Ma Wu Bei showed that he would sign documents on behalf of Leadkeen for use in the Mainland without authority to do so and at the direction of Ma Bo Kee.  The “new evidence” was said to demonstrate that the evidence of Ma Bo Kee upon which the Mainland judgments were premised was at least unreliable and the Mainland judgments were unsafe.

10.  The opinions of experts obtained by the Liquidators also showed that the signatures on the Moulin Guarantee and Leadkeen Guarantee were not made by Ma Bo Kee.  There were no board meetings actually held to approve execution of the Guarantees.  BOC had notice of possible irregularities but failed to properly confirm the authority of the person giving the Guarantees.  The evidence of Ma Bo Kee’s evidence was false and misleading. The Liquidators also suggested that the Leadkeen Guarantee might have been procured after the borrower had defaulted on the loans and improperly backdated.  The Liquidators took the view that the Mainland judgments were procured by fraud/collusion.

11.  On 18 October 2013, the 2^nd affirmation of Mr Xie (“Xie-2^nd”) was filed in reply.  This affirmation is the subject of the strike-out application.

12.  The substantive hearing of the appeal has been set down for 21 January 2014.  The Liquidators seek to cross-examine Xie at that hearing.

A.  STRIKING OUT OF XIE-2^ND

Legal principles governing the strike out of an affidavit or parts of it

13.  An affidavit should only contain facts as the deponent is able of his own knowledge to prove: Order 41, rule 5(1) of the Rules of the High Court.  The contents should be relevant to the dispute before the court.

14.  Under Order 41, rule 6, the court may order to be struck out of any affidavit any matter which is scandalous, irrelevant or otherwise oppressive.

15.  An affidavit should not contain objectionable hearsay and exposition of the views of his solicitor on forensic matters: Robert Lee Flickinger v Director of Immigration [1988] 1 HKLR 81, Clough JA, at 94E.

16.  In Chan Woon Fui v Chan Wing Suen, HCCW 350/2004,Barma J (as he then was) summarized the principles as follows:

“(1) Scandalous has the same meaning in Order 41 rule 6 as it does in Order 18 rule 19 dealing with the striking out of pleadings. Thus, degrading, indecent and offensive charges made in an affidavit will be regarded as scandalous if they are irrelevant or inadmissible in evidence to prove any material allegation in the petition (see e.g. Cashin v Cradock (1877) 3 Ch 376; Christie v Christie (1873) LR 8 Ch App 499, in the context of striking out a pleading);

(2) Matters which are material will not generally be struck out even if they are offensive, although where unnecessary detail is given, that may be susceptible to being struck out (see e.g. Blake v Albion Assurance Society (1846) 45 LJCP 663, also in the context of striking out of pleadings).

(3) Irrelevant matter may be struck out even if not scandalous (Re J (An Infant) [1960] 1 All ER 603).

(4) It is wrong to include argumentative material in affidavits and such material may be struck out (see e.g. Deak v Deak Perera Far East Limited [1991] 1 HKLR 551).

(5) The court may take one of three approaches to an affidavit in which there is scandalous, irrelevant or oppressive matter:-

(a) It may decline to strike the matter out, on the basis that it is capable of excluding such material from its mind when deciding the issues which arise for decision; or

(b) It may think it appropriate to strike out some or all of the material complained of; or

(c) It may, in an extreme case, order the entire affidavit to be taken off the court file.

Which of these courses is adopted will depend on the circumstances of the case, regard being had to the nature and extent of the objectionable material.”

17.  Specifically on legal arguments, comments and opinions rather than factual matters,  Lam J has this to say in Oh Jae-hoon Eugene v Richdale [2003] 4 HKC 318, at para 15-16,

“15. I confess that I have great difficulties about this affidavit. It is not because of its length or the choice of emotional languages in its contents. Rather it is because it contains a lot of irrelevant material, matters which could not possibly have any bearing on this striking out application. The most objectionable parts in my view are that in many places the affidavit consisted of comments, opinions and submissions rather than deposition of factual matters. There are clear authorities that these had no place in an affidavit and should have been struck out. Obviously, the observations of Fuad JA in Nelson Delivery Service v Wong Kan Civ App No. 136 of 1986, were not heeded.

“Before I take leave of this case, I would draw the attention of those who advised Mr Wong Kan in drawing up his affirmation, of the necessity to avoid contentions and arguments in affirmations of the kind that we have before us, and to limit their contents to evidence. I have in mind the remarks of Roskill, L.J. and Megaw, L.J. in Alfred Dunhill Limited and another v. Sunoptic S.A. and another [1979] F.S.R. 337. At page 352, Roskill, L.J. said, this:

‘I hope it is not out of place to say at this stage that the affidavits filed on both sides are in at least two cases very much too long. Affidavits are designed to place facts, whether disputed or otherwise before the tribunal for whose help they are prepared. They are not designed as a receptacle for or as a vehicle for legal arguments. Draftsmen of affidavits should not, as a general rule, put into the mouths of the intended deponents legal arguments of which those deponents are unlikely ever to have heard. Legal arguments, especially in interlocutory proceedings, should come from the mouths of those best qualified to advance them and not be put into the mouths of the deponents. There has been much unnecessary paper in this case brought about by the inclusion of legal arguments in affidavits.’

Megaw, L. J. had this to say at page 373:

‘There is one feature of this barrage and counter-barrage of affidavits on which I think that comment ought to be made. Some of the affidavits, in particular the second defendant's first affidavit, have been made the vehicle for numerous submissions of law and for forensic argument, wholly out of place in an affidavit, as it would be in the oral evidence of the witness.’ ”

16. Clough JA in Robert Lee Flickinger v Director of Immigration [1988] 1 HKLR 81 at p. 94E to F and Cons VP in R Leslie Deak v Deak Perera Far East Ltd [1991] 1 HKLR 551 at p. 560-1 gave similar warnings. The evil of the inclusion of such material in an affidavit is well demonstrated by this affidavit of the Plaintiff. The presentation of material in this affidavit makes it very difficult for this court to identify factual evidence which could properly be included in an affidavit from other improper material. Judicial time should not be wasted on winnowing the chaff from the wheat. I take this opportunity to remind practitioners of the principles set out in those cases and in the future, this court would have no hesitation in following the course suggested by Cons VP in appropriate cases.”

Identification of the offending paragraphs

18.  Mr Dentice of Messrs Reed Smith Richards Butler (“RSRB”) acting for the Liquidators deposed to the fact that the allegations in Xie-2^nd “raised a broad range of factual disputes, including scandalous and crudely argumentative attacks upon the integrity, competence and credibility of the Liquidators and their other deponents, plus an illegitimate attempt to adduce inadmissible, incorrect and misleading purported expert evidence on Mainland law without expert directions or tendering the expert for cross-examination”.  Ironically, his affidavit made lots of comments and submissions about Xie-2^nd.

19.  The subject matter of attack by the Liquidators can be found in paragraphs 7 to 23 of Xie-2^nd:

(i) Paragraphs 7 and 8: these paragraphs contained no facts but merely criticized and expressed surprise at the manner in which the Liquidators handled the Mainland litigation (para 7); or commented that they actually knew much more than was suggested in Mr Batchelor’s affidavit (para 8).

(ii) Paragraph 9: Mr Dentice commented that paragraph 9 contained almost entirely crude arguments, supposition and assertion and comprised further arguments based upon various sources including 2 Hong Kong court judgments.  I disagree.  Paragraph 9 purports to show by further documents that the Liquidators knew much more than they represented in Mr Batchelor’s affidavit.  The 2 Hong Kong court judgments were not put forth as “authorities” but to show the knowledge of the Liquidators.  This paragraph clearly contained facts relevant to the appeal.

(iii) Paragraph 10: Xie expressed surprise at the Liquidators’ suggestion that at the hearing of the Mainland litigation, they were not in possession of evidence of fraud within the Moulin Group.  Xie in turn suggested that the Liquidators could have at least informed the Mainland courts of what they had observed within the Moulin Group (eg its destruction of evidence), their investigations, findings or suspicions leading to the eventual arrest of Ma Bo Kee and others to bolster their argument that the signatures were not genuine.  Xie commented that the Liquidators’ choice not to raise those matters was nothing but a litigation strategy.  Mr Dentice commented that this was crude argument, supposition and assertion.

 In my view, a prudent draftsmen of Xie-2^nd could not be blamed for raising issues as to what the Liquidators failed to do before the Mainland court, just in case the Liquidators may wish to explain their failure.  Viewed in context, I do not regard paragraph 10 as falling within the description of being “scandalous, irrelevant or oppressive”.

(iv) Paragraph 11: This contained no factual evidence but only Xie’s argument that the Liquidators’ rejection of the proofs of debt had been rebutted by evidence and that evidence of conviction of Ma Bo Kee of misleading auditors of Moulin by false accounting had no bearing on the Mainland judgments.

(v) Paragraph 12: Sub-paragraph (1) first commented on Mr Batchelor’s evidence.  Out of prudence, Xie then proceeded in sub-paragraph (2) to adduce expert evidence to rebut the Liquidators’ assertions.  Sub-paragraphs (3) and (4) were conclusions following from sub-paragraph (2).

 In my view, though paragraph 12 was longer than was necessary, and parts of it clearly contained Xie’s comments than evidence, the expert evidence appeared to be relevant.  In fact, at the directions hearing for the appeal, the Liquidators’ skeleton submission envisaged expert evidence.  The fact that expert directions have not been obtained is a separate issue but it cannot be said that this paragraph was “scandalous, irrelevant or oppressive”.

(vi) Paragraphs 13 to 16: These paragraphs clearly did not contain any factual evidence but only comments or submissions.  They were Xie’s purported refutation of the Liquidators’ explanation that there had been no delay in their handling of the proofs of debt (para 13);  comments on the Liquidators’ “lame excuses” in having to conduct a lot of investigations and having to struggle with different priorities in liquidation (para 14); statement of legal advice Xie received or expression of surprise as to the way the Liquidators treated the Mainland judgments (para 15); and comments on the relevance of the Hong Kong judgments involving Moulin (para 16).

(vii) Paragraphs 17, 18 and 19: In paragraph 17, Xie expressed doubt as to relevance of a meeting held on 24.9.2007 as deposed to by one Lam.  Paragraph 18 contained a factual matter, namely, that Xie could not confirm the accuracy of that meeting as BOC did not take part. As for paragraph 19, Xie appeared to be commenting on the quality of the evidence when he stated that no explanation has been given as to the timing of this meeting and why the Liquidators did not see fit to meet earlier with one Ma Wu Bei. 

 Again, in my view, this could be seen as prudence on the part of the draftsman of Xie-2^nd to raise an issue just in case the Liquidators might have evidence to explain further or strengthen their evidence.  I do not regard these 2 paragraphs as “scandalous, irrelevant or oppressive”.

(viii) Paragraph 20: This was the only paragraph in Xie-2^nd which questioned the relevance of one Kan’s affirmation and pointed out that the Liquidators did not rely on matters in Kan’s affirmation in the Mainland litigation.  Again, I can see the prudence of the draftsman seeking to refute Kan’s affirmation briefly to avoid any suggestion that the applicants had accepted the truth therein.  I do not regard this paragraph as “scandalous, irrelevant or oppressive”.

(ix) Paragraphs 21-23: These paragraphs concern the Liquidators’ discovery summonses which have not even been set down for call-over.  In addition, Xie stated, as a matter of fact, that the Mainland litigation aside, from 2005 to 2009, the Liquidators had not approached BOC regarding the proofs of debt, much less purported to ask for more information and/or documents.  He then questioned the relevance of the documents sought.  For the same reasons given in respect of paragraph 20, I do not regard this paragraph as “scandalous, irrelevant or oppressive”.

20.  In summary, paragraphs 7, 8, 11, 13-16 (“the offending paragraphs”) do fall foul of Order 41, rules 5(1) and 6.

21.  Mr Pao submits that this is a case of extreme double standards in that the Liquidators committed similar errors as Xie.  For example,

(i) The Liquidators referred to the litigation procedure in the Mainland (para 27 of Batchelor-1^st) without identifying the legal expert;

(ii) They referred to advice by its own legal advisers: paras 38 and 39 of Batchelor-1^st; 

(iii) They gave statements of legal principles on Order 41, rule 5 in paras 9 and 10 of Mr Dentice’s affidavit.

22.  I agree with Mr Pao.  However, one party’s non-compliance with the Rules does not justify the other party’s breach. Subject to proper justification, the Liquidators’ affidavit evidence is open to the same attack under Order 41, rule 6 at the appeal.

Exercise of discretion to strike out

23.  The offending paragraphs are clearly identifiable and the appeal judge can easily exclude them from his/her mind with proper assistance from the Liquidators’ counsel.  The Liquidators can make application for disallowing part of the costs for preparing Xie-2^nd.

24.  I can hardly see the substantive benefit of the strike out to the Liquidators.  The filing of evidence has closed.  There was no suggestion that if the offending paragraphs were not struck out, the Liquidators needed to file a supplemental affirmation in opposition. 

25.  Engaging 2 counsel to argue this application was simply not procedurally proportionate in the light of the tight timetable or conducive to the swift disposal of the appeal.   

26.  The time spent on the striking out summonses could have been better spent on the expert directions, or the discovery summons had the Liquidators been minded to pursue it.  The hearing of the Order 41 summonses was fixed urgently with only 30 minutes reserved for argument on 2 applications.  Regrettably, with 22 authorities just from the Liquidators (for both applications), other court sittings and an intervening duty outside Hong Kong, this court has been unable to produce a faster decision.  There is now only one month left before the appeal to tie up any loose ends. 

27.  Considering all circumstances, I decline to strike out the offending paragraphs.  Even if I were to strike out, I would have considered the same factors in paragraphs 25-26 above and declined to order costs in favour of the Liquidators.

B.  CROSS-EXAMINATION OF DEPONENT

Legal principles applicable

28.  The test for permitting cross-examination of a deponent is whether it is in the “interests of justice” to do so.  Permission will be given when good and sufficient reasons are shown.  Permission is more often given where a final order is to be made or where the substantive relief sought has an element of finality:  Wenta Sung Yuen v Park Yiu Yuen [1984] HKLR 431.  For example, where there is an issue as to the motive or truthfulness of the account of a deponent: Re Smith and Fawcett Ltd [1942] Ch 304 at 308 per Lord Greene MR.

29.  The court will of course consider the delay and expense that will arise as a result of the need to cross-examine a deponent, but that consideration should not lightly take away a party’s right to cross-examine.

Nature of the appeal proceedings

30.  Although the proceedings are termed as an “appeal”, it is in substance a new hearing before the court, not limited to reviewing the correctness of the Liquidators’ decision.  The “appeal” will result in a final order whereby the court may reverse the Liquidators’ decision and admit BOC’s proof of debt: Rule 95.

31.  In Active Base Ltd v Roderick John Sutton & Desmond Chung Seng Chiong, Joint and Several Liquidators of Moulin Global Eyecare Holidngs Ltd, HCCW 470/2005, 4 June 2008 (upheld by the Court of Appeal and the Court of Final Appeal), Kwan J (as she then was) directed, pursuant to Rule 95, that an appeal be heard de novo with the filing of evidence and cross-examination of deponents.  She described the role of the Liquidators, the court and the procedure to be adopted as follows:

“The approach on appeal against the adjudication of a proof of debt

50. In determining whether to admit or reject a proof of debt, it has been said that a liquidator acts in a quasi-judicial capacity (Tanning Research Laboratories Inc. v O’Brien (1990) 169 CLR 332 at 388 to 389). An appeal against the liquidator’s adjudication under rule 95 of the Companies (Winding-up) Rules is a hearing de novo. In such a proceeding, a liquidator who defends his decision to reject a proof is no longer acting in a quasi-judicial capacity but is cast in the role of an adversary, defending the assets available for distribution against a liability which, according to the view he formed when acting quasi-judicially, is not legally enforceable. He is a party litigant though he is required to act fairly in conducting the litigation (Tanning Research Laboratories, supra. at 341).

51. In hearing the appeal, the court is bound to decide the rights of the claimant in the light of all the evidence before it, and not merely to express a view whether the liquidators were right or wrong in rejecting the proof of debt on the evidence then available before them. The onus of proof is on the claimant to show on a balance of probabilities that a real debt is due to him (Alan C.W. Tang, joint and several [trustee] in bankruptcy of the estate of Lo Siu Fai Louis v. John J. Toohey, joint and several liquidator of Global March Ltd. [2005] 4 HKC 51, paras. 11 and 12).

52. Insofar as the claim of Active Base is resisted on the ground that the liability to which the proof relates is not enforceable against Moulin under the general law and are grounds of defence available to the company, the liquidators stand in the same position vis-à-vis Active Base as does Moulin (Tanning Research Laboratories, supra. at 342).

53. It is otherwise if a liquidator supports his rejection of a proof of debt in reliance on a ground which allows him, and him alone, to go behind a judgment, an account stated, a covenant or an estoppel on which the company’s liability is founded (In re Van Laun; Ex parte Chatterton [1907] 2 K.B. 23 at 31; In re Exchange Securities Ltd. [1988] Ch. 46 at 59 to 60). In these instances, the liquidator is armed with grounds for rejecting a proof of debt additional to any grounds available to the company under the general law. As stated by the majority of the High Court of Australia in Tanning Research Laboratories, supra. at 339:

‘The principles which determine enforceability of the liability to which a proof of debt relates are, in the main, the same as the principles which would be applied in an action brought directly against the company to enforce that liability. … But this general rule is qualified. As the parties whose interests are affected by admission of a proof of debt are the general body of creditors and the contributories rather than the company in liquidation, there are some liabilities which would be enforceable against the company but which a liquidator is not bound to admit to proof of debt lest the interests of creditors and contributories may be unjustly affected. A liquidator may properly reject a proof of debt if the liability, though enforceable against the company, is not a true liability of the company but is founded merely on some act or omission on the part of the company which unjustly prejudices the interests of the creditors or contributories in the assets available for distribution.’

54. The occasions when it is right to reject a proof in respect of what is not a true liability of the company may not be susceptible of exhaustive definition (Tanning Research Laboratories, supra. at 340).”

32.  Mr Barlow SC submits that an estoppel (arising from res judicata) cannot operate so as to prevent the Liquidators from performing their statutory functions: In re Exchange Securities & Commodities Ltd [1988] Ch 46 at 60.

33.  On the other hand, Mr Pao contends that the Liquidators are unable to show an authority enabling them to re-open a judgment given after trial.  Moreover, the rationale for estoppels not to binding the liquidators (as opposed to the company) is that they were not privy to representation.  However, the Liquidators here were privy to the Mainland litigation: In re Exchange Securities & Commodities Ltd, at page 59D-F.

34.  Mr Pao’s submission will form the subject of the appeal.  However, in the light of the authorities which Mr Barlow SC draws to my attention, I cannot agree with Mr Pao that the January hearing is not a full-blown appeal.  The Rule 95 summonses or Xie‑1^st were not prepared for a preliminary issue.  Neither did the order made on 27 August 2013 frame an issue.  Even if it was a preliminary issue to be tried, that would still not be an interlocutory matter in the scheme of Rule 95, but is intended to be a final order dispositive of the appeal.  Mr Barlow SC also rightly pointed out that there was no application for split trial of issues. How BOC has chosen to conduct their case could not tie the hands of the Liquidators.  The application for cross-examination was not pre-mature.

Necessity for cross-examination

35.  Xie (the only witness for the applicants) claimed that given how he understood Moulin to have operated, Ma Bo Kee did in fact sign on most if not all of Moulin’s crucial documents. The Liquidators disputed his evidence and challenged his credibility.  It is in the interests of justice that his evidence be tested in cross-examination so that the court can make findings of fact. 

36.  Mr Pao complains about the delay of the Liquidators in raising the question of cross-examination (a) after the trial date has been fixed; (b) when the only reference to concrete examples which the Liquidators wish to cross-examine on were contained in Xie-1^st filed on 25 July 2013. 

37.  In my view, whilst the Liquidators could have acted more promptly, taking out this application soon after filing of affidavits has been closed was not an unacceptable delay in the overall scheme of things.

38.  Accordingly, I will give leave to cross-examine Mr Xie.  I will add that the Liquidators’ cross-examination should not be limited to that on Xie-1^st.

39.  Mr Barlow SC indicated that the time for cross-examination would be half a day.  Given the limited time available in the court’s diary, 20 January 2014 will also be reserved for the appeal, to commence at not earlier than 11 am.  Three hours will be assigned for the Liquidators’ cross-examination and the rest for re-examination and submission.

CONCLUSION

40.  I dismiss the applications for striking out Xie-2^nd.  I give leave for cross-examination of Xie and hence an order in terms of para 2 of the summonses.

COSTS

41.  The summonses have been disposed of at the first hearing.  The applicants have successfully resisted the strike out of Xie-2^nd but they did breach Order 41, rules 5(1) and 6.  Their resistance to the application for cross-examination failed.  I make an order nisi that each party do bear its own costs.  Any application for variation shall be by summons returnable for arguments on 20 January 2014.

42.  I thank counsel for their assistance.