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Welcome to Peter Merity Building and Construction Law Reform Website. This is a website for solicitors who are interested in Building and Construction Law Reform. This has been converted from an old website of my practice and is a work in progress so please be patient if you come across chunks of my old website here.
LATEST NEWS
Flyer regarding high rise unit reforms
Dear Colleagues
A SOLUTION TO THE PROBLEMS WITH HIGH RISE RESIDENTIAL APARTMENT BUILDINGS – MAKE SURE THE DEVELOPERS HAVE SKIN IN THE GAME
The recent furore with respect to the resignation of Mr David Chandler the Building Service Commissioner has brought to light again the unhealthy degree of power the developers have over this State and how difficult it will be to achieve better building standards by enforcement activity alone.
Once upon a time all owners of residential buildings received the protection of the House Purchaser’s Insurance under the Builder’s Licensing Act 1971 which insured them against defective and incomplete work performed by a licensed builder.
The insurance coverage arose when a fully licenced builder performed residential building work. Although a premium was payable by the builder it could be chased up retrospectively and was not necessary for the coverage to exist. Each residential building unit was given an insurance coverage equivalent to one half of the coverage given for a freestanding house. This meant that there was a quite substantial amount available to a body corporate to fix defects. The insurance was provided by the NSW State Government and underwritten by overseas reinsurers. The insurance was a first resort scheme where the owners applied to the insurer, the Builders Licensing Board, and were paid direct and the Board would then recover the payment from the builder responsible.
The State Government politicians eventually made it obvious that they could not be trusted to run such a scheme (the recent ICare scandal is nothing new) and the reinsurers were getting upset. As a result it was proposed that the insurance would be provided by commercial insurance companies and that it would be compulsory for a builder to insure in order to claim monies under a building contract. The problem is that, after the scheme was in place, the insurers refused to insure high rise unit buildings (I wonder why?) the government just acquiesced, and so the most expensive and technologically challenging structures, the high rise unit buildings, were the ones left uninsured.
As a band aid fix to an amputated leg, the developers of high-rise buildings are now required to pay a bond of 2% of the contract value, which is held in a trust. It is used to pay for the costs of rectifying any defects identified by an independent building inspector between 15 months and 18 months after the completion of the building work. This is substantially less than the coverage period provided by the Home Building Compensation Fund, which is up to six years for major defects. Any building rectification works should be completed within three years, and the unspent bond is refunded to developers. However, in very many cases the bond amount is less than the value of the rectification works required. The statistics would be interesting but I have been informed that when the problems are serious and structural, you are looking to about 68% of the contract value. Remember too that the 2% is not paid into an insurance fund, it is only to be used for the building in question. This is completely inadequate.
THE SOLUTION
The solution is to make good building practices in the interests of the developers. The way to do that is to ensure that they have “skin in the game” by requiring them to retain 20% by value of the block of units for six years after the occupation certificate is issued. They will then have an interest in ensuring that the units are built to a good standard, or at least good enough to be able to be trouble free for six years.
If you agree with me please approach your local Member of Parliament and/or your local government councillors to advocate reform along these lines.
Regards
Peter Merity
Older News
My presentation to the Sutherland and St George Regional Law Society.
Overview of recent and ongoing reform in the home building industry in NSW
by Peter Merity.
As the newspaper reports coming up on the powerpoint reflect, we are, in New South Wales, facing a crisis in residential building the like of which we have never seen before. There are actually 3 basic legal reforms which I would like to see happen in the building industry to deal with that crisis. Those reforms are:
·reforms related to high rise buildings
·reforms related to flammable cladding
·reforms related to home building contracts
Today, however, I propose to concentrate on just one reform which is probably the most important, and certainly the most topical. The reform of the law relating to high rise residential developments.
The Importance of the Problem
There have been more than 114,000 high rise residential building units built in Sydney in the past five years. Many of these buildings are defective and these problems are now coming to light. NSW Government forecasts released in May 2019 predicted another 190,000 units would be built over the next five years.
The Problem
In order to purchase a home unit in a high rise development the majority of purchasers must commit the greater part of their future earing capacity for the next thirty years to purchase a unit in a building which is highly likely not to last that thirty ears, leaving the purchasers without either a home or those earnings, just the balance of the mortgage debt.
The Reason for the Problem
The real reason for that and many of the problems we are now facing is a lack of exposure of the property developers, who have the ability to control outcomes, to the consequences of careless building practices.
Outline of The Solution to The Problem
My proposed solution is that developers be required to retain some 25 percent by value of the lots in any development they undertake, for a period of six years. The lots so retained would be encumbered by a first charge to provide a source of funds if any defects in the buildings come to light in the six years after the issue of the occupation certificate.
This will, hopefully, have the effect of restoring the faith of the housing consumers in the finished product of the development, that is, the lots they purchase. Without that restoration in faith you cannot expect housing consumers to enter into home loans equal to a large part of their future earnings, as they have done in the past, if those loans are secured on something which may lose most or all of its value, as has apparently happened with the Mascot Towers development.
The suggestion that anything less would change the developer?s cavalier attitude to building and engineering standards is just laughable.
The History of Building Regulation in New South Wales
Long ago, under the New South Wales Builders Licensing Act, house purchasers, as they were called, were protected by a House Purchasers Insurance Scheme which covered both low rise and high rise residential buildings. Under the scheme in its final years, the residents of a building such as Mascot Towers, if they claimed on the insurance within the six year insurance period, could get a payout of $110,000.00 per unit, which would have amounted, in a 132 unit development, to a total of some $14.5 million.
The law was then changed to remove all insurance from any high rise building over three residential stories high so that, even if the defects came to light within six years, the owners now cannot make an insurance claim.
It should be note that, in those days, builders were also required, as a condition of their licence, to have a minimum asset backing for their business.
The law was then changed so that these days a builder can operate through a $2.00 company.
These things have given rise to a number of abuses in the residential home building industry.
Reform Proposals - The Shergold-Weir Report
There have been 18 reports urging reform in the NSW building industry over the past two decades. So far almost nothing has been done.
The Shergold-Weir report was commissioned by the State Governments following the 2017 Grenfell Tower tragedy in London and with concerns mounting about the quality of construction in Australia.
The Shergold-Weir report was delivered to governments in February 2018 ? and it came with a recommendation that its 24 proposals be implemented together within three years.
In March 2019, former minister Matt Kean, of the NSW Government, which was battling concerns about the scale of high-rise residential construction across Sydney, said in the Government would adopt the ?vast majority of the Shergold-Weir report's recommendations.” Under the current climate of interest in the industry it is quite likely that this will indeed happen.
The Shergold-Weir Report focusses on building standards and the qualifications of people engaged in the building and construction industry. As such it proposes a large number of desperately needed reforms, but it does not address the main problem, the enormous and malign influence of developers and their money, which all the best regulation in the
world will not defeat.
The Current State of the Law with Respect to Developers
The current state of the law with respect to developers? exposure to risk can be illustrated in a recent case in the Corporations List:
In the matter of Cresco Opus Fund No. 4 Pty Ltd (Administrator Appointed) [2018] NSWSC 941 (24 July 2019)
A Mr Tino Carusi was the owner and sole director of the developer, Cresco, and a Mr Danny Masri was its secretary. At the time of the judgment these gentlemen had, the Court noted, ?recently relocated to the Middle East?.
Cresco had purchased the land for $6.1M and built 13 town houses which it then sold for $28M, the cost of building was not disclosed but say $4M (my guestimate) resulting in an apparent net gain of some $18M.
All the money has gone, the builders, Mono Constructions, are owed $700,000 and the taxation office is owed probably $6M.
The company was put into voluntary administration and a Deed of Company Arrangement was proposed giving a rather small payout to those creditors who had provided proofs of debt.
The development company had over the project apparently incurred substantial debts to related parties ? ie. their relatives, such that the related parties dominated the administrators meetings and tried to get the Deed of Company Arrangement accepted. If it was accepted, there would be no likelihood of there being any criminal or civil action against Mr Carusi and Mr Masri and, presumably, they could both come back to Australia and do it again.
Rees J rejected the claims of the related creditors and ordered that the company go from administration into liquidation, the liquidator expressly not to be the then administrator.
As one reads the case one gets the feeling nobody is going to get very much out of this exercise. This is typical.
Hypothetical - What Happens if There are Serious Defects in the Work and the Builder goes Broke?
There was no reference to any defective work in Cresco, and I have not heard of anything of the kind from any other source, but all that has to happen to make this typical situation the perfect storm is that major defects are discovered in the building work and the unpaid builder, Mono Constructions goes broke. (Remember 27% of all participants in the building industry in NSW become insolvent every year.) and, finally, the property is not insured under the HBCF Scheme.
This would mean that the only source of funds to go to for the rectification work is the developers? deposit of 2% of the construction cost of $4 million. This means that there is probably only $80,000.00 available to rectify the defective work. It is in no way unusual for the cost of rectifying defects in a high rise building to amount to over one half of the construction cost. That is $2 million. This means, in this hypothetical, that the 13 lot owners, could each have to pay levies of $150,000 to cover these repairs. I confirm again my reference to defects is purely hypothetical but these would be the consequence were they to come to light.
The point is that this is the situation which all current owners of lots in high rise residential buildings in New South Wales find themselves in.
This is also the situation which all prospective purchasers of lots in high rise residential buildings in New South Wales will find themselves in unless the law is radically changed.
Solutions?
I can offer no solutions to the crisis facing current owners of such properties. That is something which the State Government must address. I can however suggest a simple legislative enactment which will make this situation less likely to occur again hopefully saving future owners of such properties.
Require the Developer to Retain 25% of the Development for Six Years
The benefit of requiring that the developer retain 25% by value of the development, subject to a first charge in favour of the body corporate to provide funds for repairs of any defects, is that it will have the direct effect of securing the value of the unsold units to the body corporate and the owners.
The indirect effect is that to protect a significant part of their investment the developers are going to be motivated to ensure that the buildings are well built. There will be extra energy and focus on quality control in all aspects of the project which may simply prevent disasters such as Mascot Towers from happening at all.
Finally, there will be a backup fund for other debts left behind by the developers to builders and others. That is the unused part of the value of those 25% of the units which will be available to pay, if belatedly, debts owing to builders and others at the end of those six years. That may be an incentive on the developers not to leave the builders, or indeed the Taxation Commissioner, unpaid.
How Should We Attempt to Bring this About?
Lobbying governments or politicians is worse than useless.
The parties are not going to be able to make any positive reforms in this area. Any genuine attempts at reform will simply be stymied in the party room. Worse still the practice of both parties in the past when pressured to do something is to pass ineffective legislation, not really understood by the public, and then starve the body charged with the enforcement of that legislation of funds which then allows this kind of abuse to continue. We should note on the other hand however, that as soon as developers have an interest in ensuring their buildings are well built, they will be staunch advocates for these reforms.
What Has the NSW State Government Done?
As a result of the political pressure arising from the Opal Towers and Mascot Towers matters the NSW State Government has passed two acts:
·The Design and Building Practitioners Act 2020
·The Residential Apartments Buildings (Compliance and Enforcement Powers) Act 2020 (NSW).
The Design and Building Practitioners Act 2020. It is very tough legislation. It imposes registration and insurance requirements on builders and building designers and imposes a duty of care for economic loss on building practitioners which is retrospective in that the duty is deemed to have existed for the last ten years.
The problem is however that it does not impose any liability on developers. This is not to say that the things imposed by the proposed legislation are wrong, merely that they do not address the root cause of the problems, which is that developers who have the power of the purse and really decide the standards to which buildings are built in NSW have no incentive to ensure that those buildings are well built.
The Residential Apartments Buildings (Compliance and Enforcement Powers) Act 2020 is
intended to affect developers and seems to involve the idea that the New South Wales State
government will effectively inspect and supervise the construction of buildings.
The legislation enables the Secretary of the Department of Customer Service to:
∙ Issue a stop work order if building work is being carried out
in a manner that could result in a significant harm or loss to the public or current or future occupiers of the building, or
∙ Issue a building work rectification order to require developers to rectify defective building works, or
∙ prohibit the issuing of an occupation certificate in relation to building works in certain circumstances,
The problem is that the NSW Government is not going to be able to pay for such a scheme, which, if it is to be effective will require very highly qualified people carrying out regular inspections on building sites. The developer’s position is unchanged. The developer will just make sure that any defects are not such as to be evident before the issue of the occupation certificate and the sale of the units, which will occur usually very shortly thereafter. Since most major building defects such as foundations, footings and pilings are rapidly covered up by other building work any problems there will remain hidden until they come to light perhaps years down the track. It is currently in the developer’s interests merely to ensure that the premises are looking cosmetically good at the time of sale and these provisions will not in any way motivate them to change their behaviour.
The Problems I Foresee with Getting Things to Change
The only way to actually change things is to have a very simple and easily understood reform proposed by the public at large with the kinds of pressure which caused the passing of the marriage equality legislation.
A law requiring the retention of 25% of the value of the development under a first charge in favour of the body corporate to cover the cost of necessary repairs, is easily understood by the public and they will also be able to see, for themselves, if it has been passed.
What I am asking is not that you lobby the politicians, but that you lobby your own solicitor members who will then lobby their own clients.
The thing is that our clients trust us. Even though a person, in answering a poll may give lawyers in general a low rating for trustworthiness, that person then says ?But MY lawyer is a trustworthy person?.
The promotion of a simple piece of legislation, with obvious advantages, by a person that they trust, will, I hope, induce them to put great pressure on the politicians to pass it, particularly in the current situation.
Should We Do Nothing?
If so, we are abandoning our clients to these politically protected predators and we will end up with clients who have no money to pay us and we will sink along with them.
Remember Tank Man.
There are times when you have to make a stand, no matter what.
REFORMS RELATED TO FLAMMABLE CLADDING
In May this year a NSW Parliamentary Inquiry into the Regulation Of Building Standards, Building Quality And Building Disputes said in its Final Report that the State Government should pay for replacement of flammable cladding on buildings. As you may be painfully aware, After the Grenfell Tower disaster in the UK the NSW State Government created a register of 463 high risk buildings across NSW which were clad in similar flammable aluminium cladding. Of those 271 are four storeys or more. That register has not been made available to the public, nor to the occupants of the buildings in question, on the grounds that to release that information will encourage terrorists to engage in acts of arson. The NSW State Parliament Report into the Regulation of building standards, building quality and building disputes has recommended that the State Government pay for the replacement of flammable cladding on residential and other buildings.
"Flammable cladding requires urgent attention. To date the NSW Government has not recognised the seriousness of the situation, or acted quickly enough. Flammable cladding has been responsible for fires spreading quickly through a number of buildings around the world and for loss of homes and lives. It is only a matter of time before New South Wales experiences something similar. It should not take a building fire here for the NSW Government to act comprehensively to address this problem."
"There are a significant number of strata homeowners out there today dealing with the costs of rectifying major defects in their buildings, who have nowhere to turn. These problems were created by decades of deregulation by the State Government, which has stepped away from its responsibilities to ensure homes are built to an acceptable standard and are safe for occupation. It is not right that the whole of this liability is left in the hands of the innocent homeowners in strata buildings who bear no responsibility for defective building work. Homeowners who are not able to claim under the statutory warranties scheme or the Home Building Compensation scheme have been given no assistance and many face extreme financial pressure for rectifying a defective building. Given this, we have recommended that the NSW Government explore additional financial assistance measures for homeowners of strata properties in this position to assist them to rectify defects."
The Final Report includes a dissenting statement by two of the Government members of the PAC. In particular, they oppose the recommended expanded role for the NSW Building Commissioner and the deployment of government funding for flammable cladding rectification. Instead, the Government members preferred the "driving cultural change" approach to expanding the Commissioner role, a position advocated by Commissioner David Chandler OAM himself, and stated that "the NSW taxpayer should not foot the bill for the practices of others" in relation to potential rectification funding.
NSW STRATA BUILDINGS AND BIOWOOD FLAMMABLE CLADDING
As if the above situation was not bad enough, in 2019 in SP92888 v Taylor Construction Group and Frasers Putney [2019] NSWCAT, the NCAT Tribunal decided that Biowood, a popular cladding material, is a fire risk and that its presence as cladding for a building constitutes a major building defect within the meaning of the Home Building Act. That decision has now been confirmed by the NCAT Appeal Panel Taylor Construction Group Pty Ltd v The Owners - Strata Plan No 92888 [2020] NSWCATAP 163 in a decision handed down on 4 August 2020. The decision of the Tribunal in the above case will no doubt result in Biowood clad buildings being included and will considerably increase the numbers of at risk buildings in the register.
Biowood, is made 70% of wood and 23% of PVC. The material has been used to clad buildings in NSW for some time. At the moment I cannot give statistics of its use but it has been a very popular cladding material for some time as evidenced by its use, in the past, on many McDonalds outlets. Get your clients to check if their homes are clad in this material .
For buildings less than four storeys, the owners can claim against the builders and developers, and the home warranty insurance. For buildings four storeys or over, that is, unit blocks, the owners can only claim against the builder and the developers.
Who will pay for this?
One of the problems the NSW State Government faces in this matter is that, in many cases, the lot owners simply cannot afford the costs of replacing the cladding on their buildings. With the number of catastrophic fire danger days increasing each year, this is a problem which must be tackled, and soon. Some type of government assistance from either the Commonwealth or the State Governments, or both, is needed. Both levels of Government should be pro active about this and not just wait for a disaster to occur.
In between times the NSW State Government should pass legislation requiring the occupants of all strata unit buildings which are even conceivably at risk to engage in compulsory fire drills in which the occupants must evacuate the buildings to the nearest safe place. Remember that a major cause of the Grenfell death toll was that people were not told to evacuate the building in a timely way. We are Australians and we will treat such fire drills just like we do compulsory voting in elections. We will put up with it, do the job, and have a sausage sizzle when it is all over.
Remember the firestorms of earlier this year. They will be returning, if not this summer, then shortly thereafter. We cannot ignore this risk.
Please have your Regional Law Societies put pressure on the State Government to do this.
Is it Hopeless?
I can understand you thinking that there appears to be no hope of success in this proposal.
This is a picture of one of the most decent men in history. He was called William the Silent, because he was a man of few words. He was the George Washington, or perhaps the Ho Chi Minh, of Holland. He liberated a country of poor farmers from the then global super power, Spain in a long and terribly bloody religious war. He never gave up. In his darkest hour, when his cities were starving and under siege from the vast Spanish armies, he was asked how he was able to keep going and he said these few words: ?One does not have to hope in order to act nor does one have to succeed in order to persevere?.
He acted. He took the dreadful step of breaching the dykes holding back the sea and flooded the land around the cities, causing the Spanish armies to have to withdraw or be drowned.
He persevered. He then fought on and freed the Northern two thirds of the country. Eventually, 30 years after his death, his descendants finally pushed the Spanish out of Holland altogether. A historian has described it as: ?an astonishing victory?.
As you may have gathered, William is one of my heroes, he was courageous and determined. He was also a very tolerant man in an intolerant age, and when the times called for it he showed great mercy and compassion. The Dutch national anthem is named after him. It is called The Wilhelmus. If you have a spare few minutes, read about him. Not Wikipedia however, as it does not do him justice.
REFORMS RELATED TO HOME BUILDING CONTRACTS.
The Need for Fair Standard Form Home Building Contracts
Background - the Vulnerable Nature of Home Owners
Most home owners enter into home building contracts without legal advice despite the often huge amounts of money involved. When I have asked home owners who have later had to come to me for assistance why they entered into these contracts without obtaining legal advice, they has said such things such as: “Since the builder was not legally represented we did not feel we needed legal assistance ourselves, and after all, it was a Standard Form Contract!”
It seems an article of faith with home owners that if a building contract is a “Standard Form Contract” the contract will be perfectly fair and everything will be all right. This is so even where the “Standard Form Contracts” are the standard form contracts of the builder’s industry associations!
The idea that they may safely enter into such contracts no doubt reflects the enormous success that such legislative expedients as the New South Wales Fair Trading Act and the Commonwealth Trade Practices Act have had over the past 40 years. Home owners just cannot believe that, in relation to having a house built, which is the largest consumer transaction of their lives, the law does not adequately protect them.
Home owners are even more at risk when they enter into the builder’s own home building contract. A builder’s “home made” home renovation contract which I once came across perfectly illustrated this problem. It was imposed on a young couple who later became clients of mine. By that time they and their children had been sleeping on mattresses on the floor for some 18 months longer than the contract contemplated. The work was still incomplete and the builder went to the site only when he wished to do so. He claimed an extension of time for every day in which the weather bureau reports showed even the smallest amount of rain fell, even days when he was not on site and on days after the roof was on and rain would not have affected the progress of the work. He believed that the contract allowed him to do this. Inserted into the definitions was a definition of inclement weather which said that “inclement weather means any weather that, in the opinion of the builder, prevents the work being carried out in the usual manner.”(my italics). This was only one of many such clauses in the contract which gave an unfair advantage to the builder. Although the draftsman of the contract clearly not heard of the contra proferentum rule, these clauses still created a thicket of problems and dealing with them in the ordinary way with litigation was going to generate huge legal costs, costs totally beyond the means of the young couple in question. It would have been much easier to protect the home owners, and indeed the builder might not have “tried it on”, if the contract had not contained these clauses. In dealing with such matters I have often fervently wished that the clients had taken legal advice before contracting.
I have proposed the Office of Fair Trading Home Building Contract as the basic template for the government standard form contracts because it has the following advantages:
·It has been around for many years and so is familiar to all participants in the building industry.
·It was originally drafted with the input of the two industry associations, the HIA and the MBA, and so it is not easy to argue that it is not fair to both owners and builders.
·It is a good contract, needing only some minor amendments by way of fine tuning.
The problem is that home owners will not take legal advice before contracting. They view it as expensive and unnecessary because they have a naive faith in printed forms.
The solution is to give them what they want - a reasonably fair standard form contract which the government makes available for free and which they can amend if they wish but only after they have been made aware of the dangers of leaving the safety shield of the standard form.
THE COSTS OF HOME BUILDING LITIGATION
The first thing to say about home building litigation is that it is fundamentally, structurally, unfair to the home owner, for the reason that the builder can deduct the costs of litigation from its tax, indeed can deduct the payment of any verdict against it from its tax, whereas the homeowners must pay their legal bills out of after tax income. To sum it up, the owners pay their own legal costs but the Federal Government pays the builder’s legal costs.
What Has Been Done in the Past.
Every time a specialist tribunal is set up with the intention of providing cheap and simple dispute resolution the participants and their legal advisors tend to demand that the process be as fair and reasonable as possible, which in the end results in its procedure and determinations being exactly like a Court with all the costs that that entails. Without any criticism of the Members intended, this is what has happened with the Consumer Trader and Tenancy Tribunal Home Building Division and continues with NCAT. This is a universal trend and is because all the participants are pursuing perfect justice. Unfortunately this has given rise to the legal aphorism that “a building matter is not complete until the legal costs generated by it equal the contract price of the structure in question.” The one exception to this rule is the Security of Payment scheme. Despite the fact that adjudications under that scheme were “quick and dirty”, as one Supreme Court Justice approvingly described them, the results tended to be acceptable to the parties and the dispute very seldom went on to full scale litigation. Indeed the fact that the Security of Payment scheme made rapid justice available to the less powerful participants in the industry seems to have resulted in a change of behavior in the more powerful participants, such that disputes are now, it seems to the writer, far less frequent and the adjudicators are looking for work.
Can the current dispute resolution processes be improved?
I recommend a very structured adjudication process for home building matters. Either party can approach an adjudication authority which then nominates the adjudicator who then, if expert evidence of defective work is required, will appoint appropriate an expert or experts who must investigate and report within ten business days, after which the parties have five business days to provide written submissions and a further five days to answer those submissions, after which the adjudicator has a further five business days to issue his or her determination. The whole process can be completed in twenty five business days. If it has the same effect as the Commercial Security of Payment scheme, that will save huge amounts of legal costs and Court or Tribunal time.
I recommend that it be an entirely non government process as it currently is under the security of payment scheme. Indeed the current adjudication authorities would be the ideal bodies to run the scheme. They have the experience, the administrative machinery and the personnel required to do this. Taking this approach will mean that the establishment of the scheme will cost the State Government almost nothing.
WHAT ARE OUR CHANCES OF ALTERING THINGS IN THIS AREA?
Buckley?s or None
By the way, does anyone know what the Australian expression Buckley’s Chance means? It means little or no hope of success.
It was coined after a convict William Buckley escaped and was assumed to have perished in the Australian bush. Stories of Buckley being seen alive were greeted with disbelief and derision, and the term ?Buckley’s or None? became part of the Australian idiom and, still today, means no hope at all.
Buckley, however, survived 30 years in the bush with the Aborigines and then was pardoned and he was over eighty years old when he died in an accident.
The, second, and, to me, correct, meaning of Buckley?s Chances is therefore: ?Never Give Up.?
Let us make this exercise an example of that second meaning.
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