JIANGANG XU v JIN LIU (AKA DANIEL HU) [2017] NZHC 1689

JIANGANG XU v JIN LIU (AKA DANIEL HU) [2017] NZHC 1689 [20 July 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2015-404-002384[2017] NZHC 1689BETWEEN JIANGANG XUFirst PlaintiffYOUZHI ZHUSecond PlaintiffAND JIN LIU (AKA DANIEL HU)First DefendantPING WANG (AKA SHERRY WANG)Second DefendantHearing: 23 November 2016 and 20 March 2017Counsel: G Blanchard QC for applicants (defendants)A Sharp for respondents (plaintiffs)Judgment: 20 July 2017JUDGMENT OF KATZ JThis judgment was delivered by me on 20 July 2017 at 4.30 pmPursuant to Rule 11.5 High Court RulesRegistrar/Deputy RegistrarSolicitors: Jesse & Associates, AucklandNorthern Legal Lawyers, AucklandCounsel: A Sharp, Chancery Chambers, AucklandG Blanchard QC, Shortland Chambers, AucklandIntroduction[1] The plaintiffs are a married couple living in Hangzhou, China. The defendants are also a married couple, who formerly lived in Hangzhou but now reside in New Zealand.[2] The plaintiffs claim to have loaned the defendants more than RMB 58 million (over $12 million), which has not been repaid. The alleged loans fall into two categories. The first category, comprising loans totalling RMB 24,810,000 (about $5 million), relates to funds that the plaintiffs deposited into the defendants'bank account for them to use for overnight deposits with commercial banks in China("the overnight loans"). The second category, comprising loans totalling RMB34,230,000 (about $7 million), relates to funds that the plaintiffs understood thedefendants would loan to third parties to enable them to purchase shares ("the daytime loans"). The plaintiffs rely (in part) on a written loan agreement between the parties, allegedly entered into on 23 April 2014 at Hangzhou ("Loan Agreement").[3] The plaintiffs' case is that, unbeknownst to them, rather than using the loanedfunds for their intended purpose, the first defendant used them to purchase stock futures. While the market ran in his favour, all was well. However, when the market turned he suffered heavy losses. As pressure mounted to repay the loans, the defendants fled to New Zealand and assumed new identities.[4] After the defendants had left Hangzhou, the plaintiffs obtained judgmentagainst them in the Hangzhou People's Court in respect of the daytime loans, in thesum of RMB 34,230,000 plus interest and costs. In their first cause of action the plaintiffs seek to enforce that judgment in New Zealand. In their second and third causes of action they seek to recover the total sums owed to them pursuant to both the daytime and overnight loans. In relation to the daytime loans, those causes of action are in the alternative to the first cause of action. If the Hangzhou judgment is enforced in New Zealand, it will only be necessary to pursue the second and third causes of action in respect of the overnight loans.[5] The defendants have filed two applications in response, which are before me for determination:(a) First, the defendants apply for summary judgment or strike-out of the first cause of action. They say the Hangzhou judgment cannot be enforced in New Zealand because the Hangzhou Court did not have jurisdiction over the defendants, and because the judgment was obtained in breach of natural justice and by fraud.(b) Second, the defendants apply for a stay or dismissal of the second and third causes of action on forum non conveniens grounds. They say Hangzhou is clearly the more appropriate forum for the resolution of the parties' disputes.Should the first cause of action (enforcement of the Hangzhou judgment) be struck out or dismissed?Relevant legal principles[6] A plaintiff who has obtained judgment in a foreign court may either seek to enforce that judgment or sue on the original cause of action (for example, breach of contract).1 Both options can be pursued, in the alternative.[7] Here, the plaintiffs seek to enforce the Hangzhou judgment. The defendants, however, say that the Hangzhou judgment is unenforceable in New Zealand and that the first cause of action should be struck out or dismissed. They rely primarily onthis Court's summary judgment jurisdiction and alternatively on its strike-out jurisdiction. The key difference between the two is that a summary judgment application has a more expansive approach to affidavit evidence. Summary judgment can be obtained based on material other than that contained in the pleadings. However, summary judgment will be refused if there are material disputes of fact that cannot be resolved by affidavit evidence.21 Smith v Nicolls (1839) 5 Bing NC 208 at 220, 132 ER 1084 at 1089; Barber v Lamb (1860) 8 CBNS 95 at 99-100, 141 ER 1100 at 1102; Black v Yates [1992] QB 526 at 550; and Kohnke v Karger [1951] 2 KB 670 at 675.2 Andrew Beck and others McGechan on Procedure (looseleaf ed, Thomson Reuters) at [HR12.2.07(1)]; Ferrymead Tavern Ltd v The Christchurch Press Co Ltd [1999] NZAR 539[8] The defendants say that the Hangzhou judgment is unenforceable in New Zealand, because:(a) the Hangzhou Court did not have jurisdiction over the defendants;(b) the judgment was obtained in breach of natural justice (because the proceedings were served by way of public notice only); and/or(c) the judgment was obtained by fraud.Have the defendants established that the Hangzhou Court did not have jurisdiction over them?[9] The defendants have not appealed the Hangzhou judgment and the time for doing so has now passed. The judgment is accordingly a final and conclusive judgment in respect of the daytime loans.[10] The Hangzhou judgment has no direct operation in New Zealand. To enforce it in New Zealand the plaintiffs must establish (amongst other things) that the jurisdiction of the Hangzhou Court to give the judgment is recognised by New Zealand law.3 The Hangzhou Court must have had jurisdiction over the defendantsaccording to New Zealand's conflict of laws rules, rather than according to the foreign court's own law. In Von Wyl the Court of Appeal4 (drawing on well recognised principles of private international law) identified the following circumstances where such jurisdiction will arise:(a) If the judgment debtor was, at the time the proceedings were instituted, present in the foreign country.(b) If the judgment debtor was a plaintiff, or counterclaimed in the proceedings in the foreign court.(HC) at [11]; and Jones v Attorney-General [2004] 1 NZLR 433 (PC) at [11].3 Reeves v One World Challenge LLC [2006] 2 NZLR 184 (CA) at [36]. See also Lord Collins of Mapesbury (ed) Dicey, Morris & Collins on the Conflict of Laws (15th ed, Sweet & Maxwell, London, 2012) vol 1 at [14-021].4 Von Wyl v Engeler [1998] 3 NZLR 416 (CA) at 420-421.(c) If the judgment debtor (being a defendant in the foreign court) submitted to the jurisdiction of that court by voluntarily appearing in the proceedings.(d) If the judgment debtor, being a defendant in the original court, had before the commencement of the proceedings agreed, in respect of the subject matter of the proceedings, to submit to the jurisdiction of that court or of the courts of that country (the agreement must be express not implied).[11] The plaintiffs' pleadings rely on grounds (a) and (d) above. However, theirsubmissions are primarily focussed on ground (d).[12] Proceedings were filed in Hangzhou on 8 January 2015. It is not entirely clear to me, on the evidence before the Court, whether the defendants had left China (including Hong Kong) by then. It seems probable, however, that they left the previous day. I will therefore focus on ground (d).[13] The plaintiffs rely on an express submission to jurisdiction clause, in favour of the Hangzhou courts, that is included in the Loan Agreement. Accordingly, the Hangzhou courts will have had jurisdiction if the Loan Agreement is valid. Thedefendants' evidence, however, is that the Loan Agreement is fraudulent.[14] As I have noted above, if there are material issues of fact then summary judgment is inappropriate. There is extensive evidence on whether or not the Loan Agreement is fraudulent, and the parties' evidence on that issue is conflicting. This is not therefore an issue that can be determined "on the papers" in a summaryjudgment context. The evidence will need to be tested via cross-examination before factual findings can be made as to the validity of the Loan Agreement. The defendants have therefore failed to establish, on the basis of materially undisputed evidence, that the Hangzhou Court did not have jurisdiction in relation to the daytime loans.Was the Hangzhou judgment obtained in breach of natural justice?[15] The defendants' next argument was that the Hangzhou judgment isunenforceable in New Zealand because it was obtained in breach of natural justice.[16] A foreign judgment will not be recognised or enforced in New Zealand if the proceedings in which it was given were contrary to New Zealand conceptions of natural justice. As Lord Bridge of Harwich famously observed in Lloyd v McMahon,"the so-called rules of natural justice are not engraved on tablets of stone".5 The precise requirements depend on the context.6 There will generally be a breach of natural justice, however, where a defendant receives insufficient notice of proceedings to be able to defend them.7 "Notice" does not necessarily equate topersonal service of proceedings, however. People may receive notice of proceedings in various ways including, for example, where documents are left with a family member.[17] In Ali v Deportation Review Tribunal, Elias J (as she then was) noted that"surprise and potential prejudice" are key elements to a breach of natural justice:8If, therefore, there is no surprise in an allegation or if, even if there is surprise, there could be no prejudice because further notice would not have assisted the person affected to meet the allegation, then there is no unfairness in process.In terms of the right to be heard, her Honour said:9Fundamental to the principles of natural justice is the requirement that where the circumstances of decision making require that someone affected by it be given an opportunity to be heard, that person must have reasonable opportunity to present his case and reasonable notice of the case he has to meet. The more significant the decision the higher the standards of disclosure and fair treatment.5 Lloyd v McMahon [1987] AC 625 (HL) at 702.6 Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) at 141; cited with approval in Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355 at [120].7 SHC v O'Brien (1991) 3 PRNZ 1 (HC) at 19 and 23-24; and Hangzhou Shengzhe Trade Co Ltd v He [2012] NZHC 3536 at [29]-[30]. And see the commentary in Laws of New Zealand Conflict of Laws: Jurisdiction and Foreign Judgments (online ed) at [75]; and Dicey & Morris, above n 3, at [14-169].8 Ali v Deportation Review Tribunal [1997] NZAR 208 (HC) at 220.9 At 220.[18] The Hangzhou proceedings were initially issued not only against thedefendants, but also against the second defendant's (Ms Wang's) parents (in theircapacity as guarantors). However, the claims against Ms Wang's parents were laterwithdrawn. The plaintiffs say this was because they discovered that the defendants had forged their signatures on the relevant documents. The defendants, on the otherhand, assert that the claims against Ms Wang's parents were dropped because the guarantees had been obtained by duress. In particular, they give (hearsay) evidencethat Ms Wang's parents were attacked, held hostage, and forced to sign the relevantdocuments.[19] The defendants were not personally served with the Hangzhou proceedings, because their whereabouts were unknown when the proceedings were commenced. The Hangzhou Court therefore ordered substituted service, by way of notice in thePeople's Court Daily. That notice stated that the defendants would be deemed served 60 days from the publication of the notice.[20] The defendants claim that the notice in the People's Court Daily did not come to their attention as they were "hiding" in New Zealand at the time, as a result ofthreats and intimidation by the plaintiffs. The plaintiffs, on the other hand, say thatthe reason the defendants fled to New Zealand, like the "proverbial thieves in the night", was to avoid the pressure building on them to repay their debts. Thedefendants say that, because they were in New Zealand, they did not become aware of the Hangzhou proceedings until they were served with the present proceedings in New Zealand in October 2015, which annexed a copy of the Hangzhou judgment.[21] The plaintiffs submit that the defendants' claim of ignorance of the Hangzhou proceedings is implausible. Rather, they submit that the defendants made a conscious decision to keep a low profile, confident (or hopeful) that their new location and identities would not be discovered by the plaintiffs. In this context, MrSharp noted Mr Liu's evidence that, after he moved to New Zealand, he found out that Mr Xu had:held my wife's parents and her brother ransom, physically assaulted them, and forced them to sign documents in the plaintiffs' favour.Mr Sharp submitted that it "stretches credibility to its utmost limits" for the defendants to suggest that Ms Wang's parents would have conveyed this informationto the defendants in New Zealand, but not also that they had become involved in related proceedings concerning the first defendant, their son-in-law.[22] Mr Sharp also referred to evidence indicating that another family member, a sister, entered into a lease arrangement for a property the defendants rented in Greenhithe. She also appears to have entered into the internet agreement for that property. Mr Sharp submitted that this shows that the defendants were certainly not"in hiding" from their own families. On the contrary, members of their extendedfamilies were assisting them to hide from their creditors in China. Given this context, he submitted that it is likely that the defendants were informed of the Hangzhou proceedings.[23] Ultimately, the issue of whether the defendants received notice of the Hangzhou proceedings or not is a factual issue. Mr Liu and Ms Wang carry the burden of establishing a breach of natural justice. It is not sufficient, on the facts of this case at least, to simply point to evidence that shows that they were not personally served with the Hangzhou proceedings. The natural justice inquiry does not end there. Mr Sharp has pointed to evidence that potentially casts doubt on thecredibility of the defendants' assertions that they were unaware of the Hangzhouproceedings and therefore did not have the opportunity to defend them. It is therefore possible that, rather than being unaware of them, the defendants simply made a conscious decision not to participate in the proceedings. If so, that couldwell impact on the Court's assessment of whether there has been a breach of naturaljustice.[24] Given that the requirements of natural justice are context-specific, the evidence will need to be explored and tested at a full hearing. Discovery may also cast some light on the issue. The issue is not so clear-cut that summary judgment is appropriate.Was the Hangzhou judgment obtained by fraud?[25] Both parties have filed extensive affidavit evidence regarding the circumstances in which the Loan Agreement was entered into. The defendants assert that it is fraudulent. The plaintiffs strenuously deny that. Extensive cross- examination will be required to resolve the disputed issues of fact. This is not an issue that can be determined in a summary judgment context, as Mr Blanchard QC accepted.Conclusion on application to dismiss or strike out first cause of action[26] The defendants have failed to establish that the plaintiffs cannot succeed on their first cause of action. Their application to strike out or dismiss that cause of action must accordingly fail. Cross-examination will be required in order to determine the disputed factual issues I have outlined.Should the second and third causes of action be stayed or dismissed on forum non conveniens grounds?[27] I now turn to consider whether the plaintiffs' second and third causes ofaction should be stayed or dismissed on forum non conveniens grounds.[28] The second cause of action alleges unjust enrichment. The plaintiffs seek to recover the monies advanced to the defendants in relation to both the overnight loans and the daytime loans, totalling RMB 59,440,000. In their third cause of action the plaintiffs allege that a constructive trust has arisen over the relevant funds, and they seek recovery on that basis.[29] In respect of the daytime loans, the second and third causes of action are presumably in the alternative to the first cause of action (seeking enforcement of the Hangzhou judgment). The plaintiffs would obviously also be able to sue (again in the alternative, in respect of the daytime loans) on the original loan agreements, whether written or oral. For reasons that are not entirely clear they have elected not to do so, at this stage at least.Relevant legal principles[30] Under the doctrine of forum non conveniens, a court that has jurisdiction over a defendant in accordance with its own laws (as is the case here) may decline to exercise that jurisdiction on the basis that it is not the appropriate venue for the litigation and considerations of justice require that the plaintiff litigate in anotherjurisdiction. In New Zealand the relevant power is found in the Court's inherentjurisdiction and the High Court Rules.10[31] A stay will only be granted on forum non conveniens grounds where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the more appropriate forum for the trial of the action. In other words, there must be an available and competent forum in which the case may be tried more suitably for the interests of all the parties and the ends of justice.11 The following additional principles apply:12(a) The applicant has the onus of persuading the court to exercise its discretion.(b) The natural or appropriate forum is that with which the action has the most real and substantial connection. In assessing this, the court will have regard to connecting factors such as relative convenience and expense (particularly in relation to witnesses), the location and availability of documents and witnesses, the governing law, and the places where the parties reside and carry on business.(c) The court will ordinarily refuse a stay if it concludes that there is no other available forum that is clearly more appropriate for the trial.(d) The court will ordinarily grant a stay if it concludes that there is another forum that is prima facie clearly more appropriate for the trial,10 Rules 6.29(3) and 15.1.11 Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 (HL) at 476; adopted in Schumacher v Summergrove Estates Ltd [2014] NZCA 412, [2014] 3 NZLR 599 at [28].12 Schumacher v Summergrove Estates Ltd, above n 11, at [29]; and Oilseed Products (NZ) Ltd v H E Burton Ltd (1987) 1 PRNZ 313 (HC) at 316-317.although it still has a discretion not to grant the stay, in the interests of justice.[32] Other factors that may be relevant to the exercise of the court's discretioninclude:13(a) the strength of the plaintiff's case;(b) where any judgment will be enforced;(c) whether the application or stay is brought to gain a tactical advantage and not because trial in the other forum is genuinely desired; and(d) whether there are any procedural advantages in one of the jurisdictions.[33] No one factor is determinative. The court can take into account all the circumstances of the case. Even if an overseas forum is prima facie more appropriate, the courts have recognised that there may be special circumstances by reason of which justice requires that the trial should nevertheless take place in New Zealand.14Discussion[34] For the reasons outlined above, I have declined to strike out or dismiss the first cause of action. It will therefore need to proceed to a full hearing in New Zealand. In such circumstances the inefficiency of staying the second and third causes of action, in favour of proceedings in Hangzhou, are obvious. All three causes of action arise out of the same factual matrix. Indeed, to the extent that the second and third causes of action relate to the daytime loans, they are necessarily alternative to the first cause of action. It would be contrary to common sense and the13 Schumacher v Summergrove Estates Ltd, above n 11, at [30]. For a list of further factors, seeBomac Laboratories Ltd v Life Medicals (MSDN BHD) HC Auckland CIV-2010-404-4654, 5 August 2011 at [13].14 Exportrade Corp v Irie Blue New Zealand Ltd [2013] NZCA 675, [2014] NZAR 495 at [53]- [57].interests of justice to have parallel proceedings in New Zealand and China in such circumstances.[35] Wallace J in Oilseed Products (NZ) Ltd v H E Burton Ltd observed that courts should lean against a multiplicity of actions where the claims could more conveniently be heard together, with real costs savings. This would also avoid the risk of conflicting factual or legal findings in each jurisdiction.15 Similarly, the Court of Appeal in Americhip Inc v Dean observed that where part of a claim will need to be heard and determined in one jurisdiction, that will support the case that that jurisdiction is the most appropriate forum to hear the entire claim.16 InAmerichip it was necessary for the plaintiff's constructive trust claim to bedetermined (and enforced) by a New Zealand court, because the subject of the claim was land situated in New Zealand. The key issue was whether the remaining causes of action should also be heard in New Zealand. When the matter subsequently came before the High Court, I observed that:17 considerations of justice, fairness and common sense all support theentire claim being heard in New Zealand, rather than Americhip (and Mr Dean) being put to the expense and inconvenience of sequential proceedings in China and New Zealand. Litigating in two jurisdictions is likely to be significantly less cost effective and efficient than litigating in one. It is also likely to lead to lengthy delays in the final resolution of the matters in dispute.[36] In my view this factor, on its own, is determinative in this case. Given that the first cause of action will proceed here, it would be inefficient and contrary to the interests of justice for the second and third causes of action to be stayed in favour of proceedings in Hangzhou.[37] There are several other factors, however, that also support this Court being the appropriate forum for the determination of the second and third causes of action.[38] First, I am not persuaded that the Hangzhou Court is an available forum in relation to either the daytime loans or the overnight loans. The Hangzhou Court15 Above n 12, at 318-319. See also Americhip Inc v Dean [2014] NZCA 380, [2014] NZAR 1137 at [22].16 Above n 15, at [20].17 Americhip, Inc v Dean [2015] NZHC 700, [2015] 3 NZLR 498 at [77].has already issued a judgment in respect of the daytime loans. If that judgment proves to be unenforceable in New Zealand, and this Court has meanwhile stayed or dismissed the second and third causes of action, then the plaintiffs will have no option but to try and get a second (hopefully enforceable) judgment from the Hangzhou Court. This would require them to set aside the existing Hangzhou judgment so that the underlying issues could be re-litigated.[39] The defendants' expert legal witness, Yuqiong Pei, deposes that the defendants could apply for a retrial if they believe there is an error in the Hangzhoujudgment. She refers to Article 200 of the Civil Procedure Law of the People'sRepublic of China, which sets out the circumstances in which such an application can be made. These include that there is new evidence, that the evidence relied on in the original judgment was forged, or that there was an error of law. I note that, to date, the defendants have taken no steps to seek a retrial in China, or indeed to appeal the Hangzhou judgment (which appears to have come to their attention prior to the appeal period expiring).[40] The plaintiffs' expert legal witness, Zhixiong Liao, deposes that there is no "right" to a retrial, but in "extremely special and uncommon circumstances", for example where there has been a "huge mistake" of law, it may be possible to obtain aretrial. Ultimately, however, it is entirely a matter for the discretion of the court, asin New Zealand. In Mr Liao's view a retrial would not be likely to be granted on the facts of this case.[41] In light of the (at times conflicting) expert evidence, the most that can be said for certain is that the Hangzhou Court might be an available forum for determining the disputes relating to the daytime loans, if this Court were to decline to enforce the current Hangzhou judgment. The defendants have therefore failed to discharge the onus on them of establishing that the Hangzhou court is an available forum, in relation to the daytime loans.[42] The same difficulty arises in relation to the overnight loans. A claim was previously brought in Hangzhou in relation to those loans but subsequently withdrawn, for reasons that are not entirely clear. It appears that the issues raisedmay have been at the interface of Chinese civil and criminal law. Mr Liao'sevidence indicates that, in such circumstance, civil proceedings can only be brought in conjunction with criminal proceedings. Ms Pei suggests otherwise.[43] Whatever the reasons for the withdrawal of the previous civil claim in relation to the overnight loans, it is not clear that the Hangzhou Court is now available to determine the dispute relating to those loans. The challenges appear to be exacerbated by the absence of the defendants from that jurisdiction.[44] Chinese law must be determined as a question of fact in these proceedings. The expert evidence is conflicting and neither expert was cross-examined. Given the conflicting expert evidence, the defendants have failed to discharge the onus on them of establishing that the Hangzhou Court is an available forum to resolve the dispute relating to the overnight loans. The fact that it has not been established that Hangzhou is an available forum in relation to either the daytime loans or the overnight loans is fatal to the defendants' stay application.[45] If Hangzhou had been a clearly available forum, a number of factors present in this case would have favoured the Hangzhou Court as the natural and appropriate forum for this litigation. For example, the relevant contracts were entered into and breached in China. Most of the witnesses (other than the defendants) will be basedin China. Significantly, the law that governs the parties' contractual relationship isChinese law. The situation in relation to the constructive trust cause of action is more complex, but that in itself would not have been an impediment to the dispute being resolved in China.[46] Factors that would have favoured New Zealand, on the other hand, would have been that the defendants are resident here, that discovery is available here (and this is likely to be a document-intensive case) and that any Hangzhou judgment will have to be enforced here.[47] Another factor that would have favoured New Zealand is that there appears to be a real possibility that the stay application was brought for tactical or strategic reasons. Stay applications on forum non conveniens grounds are usually, althoughnot invariably, brought by defendants living overseas. Understandably, such defendants generally prefer to litigate in their home country. Here, however, it is the plaintiffs who reside overseas. It is they, not the defendants, who will incur the cost and inconvenience of litigating in a foreign country. The defendants will be litigating in their country of residence. Although they seek to have the proceedings transferred to Hangzhou, they appear to have no wish to return there themselves. Indeed they say that their personal safety is at serious risk in China. Further, warrants for their arrest were issued in Hangzhou on 17 February 2015. This is no doubt an additional disincentive to return.[48] The defendants are therefore seeking that proceedings in their country of residence be stayed, in favour of proceedings in a country that they have no apparent desire to return to. This necessarily raises real concerns regarding their bona fides in seeking a stay.Conclusion on whether second and third causes of action should be stayed[49] For the reasons outlined, the defendants have not discharged their onus of satisfying the court that Hangzhou is an available forum to determine the disputes between the parties regarding the daytime and overnight loans.[50] Further, given that the first cause of action (enforcement of the current Hangzhou judgment) will proceed to a full hearing in New Zealand, the inefficiency of staying the second and third causes of action, in favour of proceedings in Hangzhou, is obvious. All three causes of action arise out of the same factual matrix. It would be contrary to common sense and the interests of justice to have parallel proceedings in New Zealand and China in such circumstances.[51] The application to stay the second and third causes of action, on forum non conveniens grounds, is accordingly dismissed.Result[52] The defendants' application:(a) for summary judgment or strike-out of the first cause of action is dismissed; and(b) for a stay or dismissal of the second and third causes of action is dismissed.[53] The parties are urged to endeavour to resolve any issues as to costs directly between counsel. In the event that that is not possible, leave is reserved for the plaintiffs to file a memorandum by 11 August 2017 and the defendants by 25 August 2017.____________________________Katz J