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TRFCK Pty Ltd & Ors v O'Brien Holdings (Townsville) Pty Ltd & Ors
TRFCK Pty Ltd v O'Brien Holdings (Townsville) Pty Ltd
TRFCK Pty Ltd & Ors v O'Brien Holdings (Townsville) Pty Ltd & Ors [2012] QSC 203
TRFCK PTY LTD
(first plaintiff)
TREVOR ROSS RODDICK
(second plaintiff)
CKRT PTY LTD
(third plaintiff)
BELKER ART PTY LTD
(fourth plaintiff)
O'BRIEN HOLDINGS (TOWNSVILLE) PTY LTD
(first defendant)
TERRY O'BRIEN
(second defendant)
DLA PHILLIPS FOX (A FIRM)
(third defendant)
CRIDLANDS PTY LTD
(fourth defendant)
FILE NO:
ORIGINATING COURT:
Daubney J
The plaintiff has leave to file the amended statement of claim.
The costs of and incidental to this application are reserved.
The parties are directed to bring in the necessary orders.
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDESSESORS – PLEADING – STATEMENT OF CLAIM – where the first defendant owned a hotel property and business – where the second defendant was the sole director and shareholder of the first defendant – where the second defendant negotiated with the second plaintiff with the view of the first plaintiff acquiring an interest in the hotel – where the second plaintiff was the managing director of the first plaintiff – where the second defendant retained the third defendant to act on behalf of the first and second defendants with respect to the hotel acquisition – where the third defendant engaged the fourth defendant to act as its Darwin agent – where the plaintiffs contend that the third and fourth defendants breached legal and statutory duties in the course of the hotel acquisition – where the plaintiffs contend that the third and fourth defendants should have advised the first plaintiff that it was not bound to complete the sale and purchase contract – where the plaintiff suffered loss following the acquisition of the hotel – where the plaintiffs original statement of claim was struck out – where the plaintiffs seek leave to file an amended statement of claim – where the application is not opposed by the first and second defendants – where the third and fourth defendants contend that leave ought not be granted as the amended statement of claim is fundamentally defective – whether leave to file an amended statement of claim should be granted
Trade Practices Act 1974 (Cth), s52
Constantidins v Kehagiadis [2011] NSWSC 1974
HTW Valuers v Astonland Pty Ltd (2004) 217 CLR 640; [2004] HCA 54
Potts v Miller (1940) 64 CLR 282; [1940] HCA 43
J B Sweeney for the first to fourth plaintiffs
R S Ashton for the fourth defendant
B T Cohen (Sol) for the third defendant
G N Humphries (Sol) for the first and second defendants
McGillivray's Solicitors for the first to fourth plaintiffs
Sparke Helmore for the fourth defendant
Brian Bartley and Associates for the third defendant
Connolly Suthers for the first and second defendants
This is an application for leave to file an amended statement of claim, consequent upon an order by Applegarth J on 19 September 2011 striking out the plaintiffs' original pleading.
The present application was not opposed by the first and second defendants. Each of the third and fourth defendants, however, argued that leave ought not be granted.
To understand the bases for opposition, it is necessary to give some detail of the factual background, as alleged in the proposed amended statement of claim ("ASOC").
As at March 2005, the first defendant owned certain property at Borroloola in the Northern Territory, on which was constructed a hotel and accommodation complex known as the "Borroloola Inn" ("the Hotel"). The first defendant held a liquor licence for the Hotel; that licence contained a number of conditions relating to liquor sales and takeaway sales.
The second defendant was the sole director and shareholder of the first defendant.
In early 2005, the second plaintiff (the managing director of the first plaintiff) commenced negotiating with the second defendant with a view to the first plaintiff acquiring an interest in the Hotel premises.
The first defendant retained the law firm Dillons Lawyers ("Dillons") to represent its interests;
The second defendant, on his own behalf and on behalf of the first defendant, retained the third defendant "to act as their solicitors with respect to the Hotel acquisition" (ASOC, para 75).
In June 2005, the third defendant engaged the fourth defendant, a firm of solicitors in the Northern Territory, to act as its Darwin agent.
On 22 March 2005, Dillons sent the third defendant a proposed form of agreement for the sale of the Hotel property. This form of agreement provided for a sale of the real property for $1,850,000 and for settlement to be contemporaneous with completion of a transaction by which a third party, Cashcow Pty Ltd ("Cashcow") would become the tenant of the Hotel. A Mr Taylor and a Ms Khan were the principals of Cashcow.
On 6 April 2005, Dillons sent the third defendant a proposed form of the lease to Cashcow. This draft incorporated a particular long form of guarantee and indemnity ("long form guarantee") which was clearly contemplated to be executed by each of Mr Taylor and Ms Khan to secure the performance of Cashcow under the lease.
On 27 April 2005, the third defendant sent Dillons an offer to purchase, signed by the second plaintiff on behalf of the first plaintiff. That offer was subject to the lease to Cashcow.
Negotiations ceased, but were re-enlivened after the second plaintiff met with Mr Broderick (his solicitor at the third defendant) and gave him certain instructions as to the terms on which the first plaintiff would be prepared to purchase the Hotel premises. These instructions are pleaded in the ASOC (para 84) as follows:
"(a)that Mr Broderick received a copy of the lease in the terms which had been negotiated between Dillons and Phillips Fox, signed by Cashcow and Ms Kahn and Mr Taylor as guarantors;
(b)the contract had a provision where O'Brien Holdings affirmed that:
the trading figures which had been provided were accurate;
the building and improvements were lawful and that all planning and development permissions had been obtained;
O Brien had not given Cashcow any incentives other than as shown in the lease (collectively 'the warranted facts');
(c)in relation to planning and development permissions, Mr. Broderick 'made sure that everything was fully compliant'."
Mr Broderick then prepared a revised offer, on which he gave advice to the second plaintiff and which the second plaintiff then approved and signed. Mr Broderick then sent the revised offer to Dillons, and on 26 May 2005 Dillons notified Mr Broderick that the revised offer had been accepted.
On 3 June 2005, the third defendant asked Dillons to provide a "fully executed copy of the lease [to Cashcow], including directors' guarantees". On 4 June 2005, Dillons provided the third defendant with a copy of the signed lease, but the long form guarantee in the lease had not been signed by either of Mr Taylor or Ms Khan.
On about 8 June 2005, another firm of solicitors (Dickins Solicitors), which was acting for Mr Taylor and Ms Khan, provided Dillons with forms of guarantees (albeit not the long form guarantee) purportedly signed by Mr Taylor and Ms Khan. Dillons, however, did not provide these guarantees to the third defendant before settlement of the sale of the Hotel property was effected. The ASOC alleges:
"[99]As no time between 8 June 2005 and settlement of the sale and purchase agreement did Phillips Fox or Cridlands become aware of the purported existence of the Dickens guarantee.
[100]As no time between 8 June 2005 and settlement of the sale and purchase agreement did Phillips Fox or Cridlands make any further request to Dillons for provision of the guarantee referred to at clause 11.2(iii) of the sale and purchase agreement."
The ASOC further alleges, inter alia, that on the date of settlement (1 July 2005), neither the third defendant nor the fourth defendant advised the second plaintiff that Khan and Taylor had not provided the executed guarantees.
Separate factual allegations are made in the ASOC concerning building and other regulatory searches undertaken by the fourth defendant before settlement, and searches which the plaintiffs contend should have been, but were not, undertaken. In brief, it is said that:
certain planning searches which were performed should have been understood by the fourth defendant to reveal that the accommodation blocks (referred to as "dongas") did not comply with relevant development approvals, thereby raising questions as to the lawfulness of the use of the property;
certain planning searches which were performed should have been understood by the fourth defendant to reveal a lack of record of compliance for renovations to the hotel, thereby raising questions as to the lawfulness of the use of the property;
a search under s 65 of the Planning Act (NT) (which was neither recommended nor sought by the fourth defendant) would have shown whether all development permits had been complied with;
no advice was given by the fourth defendant as to the significance of the searches referred to in (a) and (b).
As noted, settlement of the purchase of the hotel occurred on 1 July 2005. Cashcow operated the hotel business until October 2006, when Taylor and Khan effectively abandoned the Hotel. In December 2006, the liquor licence for the Hotel (which had been held by Cashcow) was cancelled. The first plaintiff then took possession of the Hotel and operated it as a motel business while attempting to retrieve the liquor licence. In the course of so doing, the first plaintiff discovered that the dongas and other renovations were not compliant, and this had to be rectified to obtain the liquor licence.
In January 2008, the National Australia Bank appointed receivers to the first plaintiff. In late 2008, the receivers sold the hotel property (with a restaurant licence) for $320,000.
The total damages claimed to have been suffered by the plaintiffs exceed $2,600,000.
The proposed cases against the third and fourth defendants
The first of the cases proposed to be advanced against each of the third and fourth defendants arises out of the alleged failure on the part of both defendant firms to obtain the necessary guarantees or to advise on the consequences of not having the guarantees. The ASOC alleges:
"[103]A solicitor exercising the care, skill and diligence of a reasonably competent solicitor in the position of both Ms Reeves and Mr. Broderick would have, before proceeding to settlement:
advised Mr. Roddick that the guarantees referred to at clause 11.2(iii) of the sale and purchase agreement had not been provided;
advised Mr. Roddick that in those circumstances TRFCK was not bound to settle;
inquired as to what Mr. Roddick wished to do.
[104]By Cridlands and Phillips Fox staying silent as alleged, and not providing the positive advice as alleged ('the guarantee conduct'):
Phillips Fox was negligent and breached the retainer;
Cridlands was negligent and breached the agency retainer.
[105]Because Cridlands was Phillips Fox's agent, Phillips Fox:
a)is vicariously liable for Cridlands negligence;
b)thereby breached the retainer.
[106]By the guarantee conduct, Cridlands and Phillips Fox each impliedly represented to Mr. Roddick that Ms Khan and Mr. Taylor had provided the guarantees referred to at clause 11.2(iii) of the sale and purchase agreement ('the guarantee representation').
[107]As a result of the guarantee conduct and the guarantee representation Mr. Roddick:
mistakenly concluded that Ms Khan and Mr. Taylor had provided the guarantees referred to at clause 11.2(iii) of the sale and purchase agreement ('the guarantee assumption');
was not altered to the fact that TRFCK was not bound to complete the sale and purchase agreement."
It is further alleged that the conduct of each of the third and fourth defendants in inducing the alleged "guarantee assumption" contravened s 52 of the Trade Practices Act 1974.
The second of the cases proposed to be advanced against each of the third and fourth defendants arises out of the alleged failure to advise with respect to the planning searches. In that regard, the ASOC alleges:
"[123]In breach of duty to TRFCK and Mr. Roddick, and in breach of the agency retainer, in the period between 8 June and 1 July 2005, Cridlands provided Phillips Fox and Mr Roddick with no advice as to the significance of the Lot 407 notation or the Lot 772 notation.
is vicariously liable for Cridlands negligence;
thereby breached the conveyancing retainer.
[125]Further or in the alternative, in breach of duty to TRFCK and Mr. Roddick, and in breach of the retainer, in the period between 8 June and 1 July 2005 Phillips Fox provided Mr Roddick with no advice as to the significance or otherwise of the Lot 407 notation or the Lot 771 notation.
[126]The silence of Ms Reeves and Mr. Broderick concerning any matters of concern regarding planning and development issues ('the compliance conduct') mistakenly led Mr. Roddick to conclude that that all necessary planning and development permits pertaining to Lots 409 and 771 and particularly the six dongas had been obtained ("the mistaken compliance assumption").
[127]Because it induced the mistaken compliance assumption, the compliance conduct was misleading or deceptive or likely to mislead or deceive.
[128]Further, in the premises of the matters referred to above, Cridlands by its silence impliedly represented to Mr. Roddick on 1 July 2005 that it had carried out all standard searches appropriate to protect TRFCK's interests as purchaser and Mr Roddick's interest as guarantee under the sale and purchase contract ('the searches representation').
[129]The searches representation was misleading or deceptive, or likely to mislead or deceive, because the searches Cridlands and Phillips Fox had carried out had revealed areas of concern, and because Cridlands had not carried out a search under section 65 of the Planning Act to allay those concerns.
[130]Further, in the premises of the matters referred to above, Cridlands by its silence impliedly represented to Mr. Roddick on 1 July 2005 that all necessary planning and development permits pertaining to the current use of Lots 409 and 771 had been obtained, and in that regard, all buildings on Lots 409 and 771 complied with all applicable laws ('the compliance representation').
[131]The compliance representation was misleading or deceptive or likely to mislead or deceive as there was no reasonable basis for making it."
The third case proposed to be advanced against each of the third and fourth defendants is, in effect, that they breached the legal and statutory duties they owed the plaintiffs by allowing the first plaintiff to settle the acquisition of the Hotel. The ASOC alleges:
"[134]Had the said negligence, breach of contract and contraventions of the TPA not occurred, Phillips Fox and Cridlands would have undertaken a search under section 65 of the Planning Act, as a result of which the significance of the Lot 407 and 701 notations would have been revealed i.e. that the NT Department of Planning had no record:
that the six dongas complied with relevant development approvals, and thus that it could not be stated that the use of Lot 407 was lawful;
of compliance with DP95/10326 for the purpose of hotel renovations and that permit was no longer current in 2005, and thus that it could not be stated that the use of Lot 771 was lawful.
[135]A solicitor in the position of Cridlands and Phillips Fox would, by late June 2005, have known of the issues with the guarantee and the issues in relation to suspected planning non-compliance, and would have advised Mr Roddick that TRFCK was not bound to complete the sale and purchase contract, and why, and would have sought further instructions.
[136]In breach of duty:
Phillips Fox and Cridlands failed to carry out the further searches or provide any of that advice or seek the instructions;
Cridlands, at settlement, caused or permitted TRFCK to complete the sale and purchase agreement;
Phillips Fox permitted Cridlands to do so.
[137]By failing to advise to the contrary ("the completion conduct") Cridlands and Phillips Fox impliedly represented to Mr. Roddick on 1 July 2005 that TRFCK was bound to complete the sale and purchase contract on 1 July 2005 ("the completion representation")."
In respect of the issues of reliance and causation, the ASOC pleads:
"[142]TRFCK suffered loss by the said misleading conduct of Phillips Fox and Cridlands, and the negligence and breach of contract of Phillips Fox and Cridlands.
[143]The said loss and damage suffered by, or by reason of, or caused by, the matters pleaded hereunder.
[144]The said misleading conduct;
meant that Mr Roddick was not alerted to the significance of the Lot 407 notation or the Lot 771 notation;
meant that Mr Roddick was not, before completion, altered to the falsity of at least some of the warranted facts (the truth of which were very important to him) or alerted to the fact that the untruth of same afforded a ground for rescission or non-completion of the sale and purchase agreement;
led Mr. Roddick to mistakenly continue to believe:
that Ms Khan and Mr. Taylor had provided the guarantees referred to at clause 11.2(iii) of the sale and purchase agreement; and
that that all necessary planning and development permits pertaining to Lots 409 and 771 had been obtained ('the compliance assumption') ;
that TRFCK was bound to complete the sale and purchase contract on 1 July 2005.
[145]Had Phillips Fox and Cridlands taken the steps they ought to have taken, and given the advice they ought to have given, and not stayed silent as they did, and not engaged in the said misleading conduct:
the following would have been conveyed to, or have become apparent to, Mr. Roddick before completion:
that neither Ms Khan or Mr. Taylor had provided the guarantees referred to at clause 11.2(iii) of the sale and purchase agreement;
that the significance of the Lot 407 notation and the Lot 771 notation was that in the Department of Planning of the NT there was no record of compliance with permit 95/ 0326, and that this permit was no longer current, and that to maintain current planning approval for Lots 409 and 771, TRFCK might have to make application for a new development permit;
in those altered circumstances, Mr. Roddick would have instructed Phillips Fox and Cridlands not to complete, and to terminate, the sale and purchase agreement and the losses referred to below would have been averted.
[146]Because Mr Roddick was in the continuing, but mistaken, belief as to the truth of the contract representations, he took no steps to prevent the following acts ('the completion transactions') occurring on 1 July 2005:
TRFCK borrowed the sum of $1,295,000 from the National Australia Bank ('NAB') and became liable to repay the NAB that sum together with interest payments of $12,510 per month fixed for the first 5 years ('NAB loan facility');
TRFCK granted the NAB a registered mortgage over the Hotel premises and a fixed and floating charge over the assets of TRFCK to secure the amounts owing under the NAB loan facility;
A company related to TRFCK, called CRKT Pty Ltd lent TRFCK the sum of $586,217 and TRFCK became liable to repay CKRT that sum;
At about 3.00 pm, at the settlement of the sale and purchase contract, Cridlands participated in the settlement and by that means caused TRFCK to use the said borrowed funds to pay to O'Brien Holdings, or at its direction, the balance of the borrowed funds to pay to O'Brien Holdings, or at its direction, the balance of the purchase price of $1,850,000, in exchange for a transfer of the Hotel premises;
O'Brien Holdings transferred the liquor licence pertaining to the Hotel premises to Cashcow;
TRFCK entered into a lease to Cashcow for a period of five years commencing 1 July 2005 at an annual rental of $250,000 per annum ('the Hotel lease').
[147]The completion transactions led to the creation of a relationship between TRFCK as landlord and Cashcow as tenant, on the terms of the unguaranteed lease, in circumstances where TRFCK was not, and Cashcow was, the licensee, and Terina Khan the nominee, with Cashcow in occupation of the hotel premises as licensee.
[148]On 1 July 2005, what was acquired by TRFCK at a price of $1,850,000 plus $99,500 in stamp duty consisted firstly of its rights under the Hotel lease (in effect to payment of $4800 per week plus outgoings, by the tenant Cashcow) and secondly the value of the freehold in the hotel premises, at such time as the Hotel lease came to an end ('reversionary interest')."
Opposition by the third and fourth defendants
It is convenient to deal first with the grounds of opposition raised on behalf of the fourth defendant, as these were adopted and relied on by the third defendant.
In respect of the guarantee case, it was submitted that the case against the fourth defendant was fundamentally defective because:
(a)there was no term in the fourth defendant's agency agreement requiring it to collect the guarantees and no such term is pleaded;
(b)the pleading discloses no foundation for the existence of a duty on the fourth defendant to collect the guarantees;
(c)there was no term in the agency agreement requiring the fourth defendant to give any advice to any of the plaintiffs, and none is pleaded;
(d)the pleading discloses no foundation for the existence of a duty upon the fourth defendant to give advice to any of the plaintiffs.
As noted above, the scope of the duties alleged to have been owed are said to be those contained in the alleged implied term of the fourth defendant's retainer that it would exercise the care, skill and diligence of reasonably competent solicitors "acting as town agent in carrying out due diligence inquiries, providing advice in relation to NT laws, and acting generally in relation to the conveyance in accordance with [the third defendant's] instructions".
It is true, as pointed out by the fourth defendant, that it is not expressly pleaded that these duties were owed by the fourth defendant to the plaintiffs, but what is pleaded is that the third defendant is vicariously liable for the negligence of the fourth defendant.
The crux of this objection, however, was that the ASOC does not plead either specific terms of the retainer or specific duties which were breached by the failure to collect, or advise on the non-receipt of, the guarantees. It was submitted:
"42.How can it be a breach of any term of the written agreement between Cridlands and Phillips Fox for Cridlands to have failed to give advice to Phillips Fox's client? Quite aside from the absence of any term of the retainer obliging them to give such advice, it is typically what solicitors' town agents do not do i.e. take over the principal's client and presume to give advice to the client."
The difficulty with this submission is that, on the material before me, there are clearly factual issues to be determined with respect to the ambit of the fourth defendant's retainer, and therefore the ambit of the duties owed. In that regard:
(a)it is asserted that the second plaintiff told Ms Reeves (the relevant solicitor in the fourth defendant firm) on 9 June 2005 that he did not want the first plaintiff to be bound to complete the Hotel acquisition unless Mr Taylor and Ms Khan had both signed long form guarantees;
(b)there was direct contact between Ms Reeves of the fourth defendant and the second defendant in the days prior to settlement, in the course of which she wrote an email to the second defendant on 28 June 2005 in which she:
forwarded a "going concern" deed for GST purposes which that solicitor had prepared, and asked the second defendant to sign and return the document;
stated that "hopefully this is the last thing that needs to be done before settlement on Friday";
confirmed that she would be liaising with the plaintiffs' bank to organise the settlement proceeds;
(c)the fourth defendant had, on 8 June 2005, been supplied by the third defendant with copies of the contract of sale, the draft lease and copies of title searches;
(d)by 14 June 2005, the fourth defendant had not only perused the lease, but had given advice on its terms; so much is clear from the fourth defendant's letter to the third defendant dated 14 June 2005 in which the fourth defendant gave advice as to desirable provisions to be inserted in the lease with respect to the liquor licence.
The factual situation with respect to the extent of the fourth defendant's retainer and the scope of the tasks properly to be performed under that retainer are therefore not as cut and dried as the fourth defendant would presently have it. Whether the matters complained of by the plaintiff are found to fall within the ambit of the obligations arising from the term that the fourth defendant acted generally "in relation to the conveyance" in accordance with the instructions of the third defendant are, in my view, matters which will turn on the evidence about, and findings with respect to, the nature and extent of the legal work undertaken by the fourth defendant and the nature, content and circumstances of communications directly between the fourth defendant and the second plaintiff. I do not consider that these proposed claims against the fourth defendant are so manifestly groundless or so clearly untenable that they could not possibly succeed, nor that the cases sought to be advanced are so unarguable as to warrant a refusal of leave to file the ASOC.[1]
Counsel for the fourth defendant further submitted that these impugned allegations in the ASOC must fail because:
(a)guarantees were in any event provided by the identified guarantors;
(b)the plaintiffs were not, as a matter of law, entitled in any event to refuse to complete and to terminate the contract;
(c)in the absence of any duty, contractual or tortious, to collect the guarantees or advise the plaintiffs, they could not have had a reasonable expectation that they would receive advise from the fourth defendants;
(d)as a matter of proper inference from the pleaded facts, the purchaser of the Hotel would have produced guarantees in the form preferred by the plaintiffs if they had been requested, but those guarantees would not have enabled the plaintiff to achieve any better outcome.
Dealing with each of these points in turn:
(a)there is clearly a factual dispute as to what guarantees were provided and to whom;
(b)whether the contract required particular forms of guarantee to be provided prior to settlement will require the terms of the contract to be construed in the context of the facts as found at trial;
(c)the question of the existence of any duty on the part of the fourth defendant to collect the guarantees or advise the plaintiffs about the guarantees is, as I have found above, a question for trial; whether or not the plaintiffs had a reasonable expectation that they would receive such advice from the fourth defendant, particularly in light of the fact that the second plaintiff and the relevant solicitor at the fourth defendant were undoubtedly in direct contact to some degree, at least, is also clearly a matter which can only be determined at trial;
(d)the basis for asserting that the "proper inference" is that the long form guarantees would have been produced before settlement is not made clear; an inference can only proceed from facts as found. The inference contended for is not the only possible inference available. Whether it is the "proper" inference will be a matter of argument at trial.
The last of these submissions also raised an argument on behalf of the fourth defendants to the effect that the pleading did not properly address the question of causation. It was submitted:
"What is not explained and cannot be explained is what would then have occurred. In what way would the long form guarantees have saved TRFCK and the other plaintiffs from the events that occurred? In what way would the short form guarantees have been any less adequate to that purpose?"
The case in fact pleaded against the third and fourth defendants is that if, relevantly, the fourth defendant had taken steps the plaintiffs contends ought to have been taken, and given the advice the plaintiffs contend ought have been given, the second plaintiff would have instructed the third and fourth defendants not to complete the contract, and would have instructed them to terminate the sale and purchase agreement, as a consequence of which the losses claimed in the ASOC would have been averted.
The case proposed to be advanced by the plaintiff will necessarily involve the consideration of hypotheticals. The matters adverted to by the fourth defendant in the present argument will undoubtedly be raised as matters of defence, and considered in the mix of that hypothetical. At least to the extent that the ASOC discloses a case in which the allegation is that the fourth defendant failed to disclose and advise on matters which, in the circumstances, should have been disclosed, causation "can be found if disclosure would have caused inaction or action other than that which was taken".[2]
The fourth defendant also pointed to the plaintiffs' plea that Taylor and Khan had behaved criminally, irresponsibly and anti-socially, and had dissipated and/or hidden the funds. It was submitted that in these circumstances "it is surely idle to contend that guarantees in any form would have allowed the plaintiffs to achieve any better outcome". This submission refers to matters which may properly be raised in defence to the claim and which will fall to be considered on the facts as found at trial. It would, however, be inappropriate to make a summary determination in the absence of the opportunity for the plaintiffs to present its evidence it support of its claim.
The fourth defendant's second ground of opposition concerned the case sought to be advanced by the plaintiff with respect to the planning searches. It was submitted on behalf of the fourth defendant that the allegations must fail because:
(a)there was no term of the retainer which required the fourth defendant to carry out a s 65 Planning Act search nor to give advice to the plaintiffs;
(b)it is pleaded in the ASOC that the third defendant carried out the same searches as did the fourth defendant, and consequently "any failure to state their obvious content to [the third defendant] must therefore be irrelevant";
(c)it is pleaded that a s 65 Planning Act search would merely reveal that the relevant department had no record confirming compliance, but both the third defendant and the plaintiff were already on notices to that and compliance was therefore uncertain;
(d)It is pleaded that the second plaintiff had decided that, because he was not satisfied about planning and building compliance, he would require a warranty in the contract about those things from the purchaser and would rely upon that as his protection.
As to the first of these arguments, it seems to me that the position is similar to that in respect to the ambit of the retainer, as discussed above. Whether, in this case, this particular agent's obligations to provide advice in relation to Northern Territory laws and act generally in relation to the conveyance extended to the specific matters of breach alleged by the plaintiff will necessarily require a determination of the facts at trial.
As to the second argument, the fact that the third defendant had carried out the same searches does not, of itself, excuse any proven breach of duty on the part of the fourth defendant. Either, or neither, or both of the third and fourth defendants may have breached duties to the plaintiffs – whether either of them did will be a matter for trial.
By the third and fourth points, the fourth defendant raises issues with respect to reliance and causation. It is argued that, because the matters which are pleaded were within the knowledge or contemplation of the second plaintiff, these matters render it impossible for the plaintiffs to prove reliance and causation. For example, it is submitted that the pleading asserts, in effect, that the second plaintiff had sought to protect himself against a known risk by building into the relevant contract a warranty, the breach of which would enable him to claim damages, and further pleads that, on the strength of that warranty, he had decided not to take further steps to discover the true state of affairs in relation to the dongas and planning compliance generally. It is argued:
"This is entirely inconsistent with the contention that he only proceeded to settlement because he thought Cridlands had done a s 65 Planning Act search which, by his own pleading, he admits could have achieved no more than a confirmation of what was already known or believed – that there was no record of relevant compliance."
In fact, that is not the case which is pleaded. The pleaded case is that the fourth defendant should have, but failed to, give certain advice on these matters to the second plaintiff, that the fact that this advice was not given before completion led the second plaintiff "to mistakenly continue to believe" that all necessary planning and development permits had been obtained and, consequently, that the first plaintiff was bound to complete the purchase.
The matters raised by the defendant are factual matters which may, if proven, persuade a judge to make a finding of lack of reliance or absence of causation. But such findings will clearly need to be made on evidence at trial.
The third argument advanced on behalf of the fourth defendant was that the plaintiffs' case that the conduct of the third and fourth defendants relevantly amounted to a representation that the plaintiff was bound to complete the contract and that this led the first plaintiff to settle when it was not obliged to do so and that it would not have done so if correctly advised. The fourth defendant contends that these allegations must fail because of their dependence upon the first and second allegations. It is clear enough, however, that if I am of the view (as I am) that the first and second allegations are matters raising triable issues, then the same applies in respect of the third allegation.
Accordingly, whilst the fourth defendant has pointed to matters which may well constitute defences to the claims proposed to be brought by the plaintiffs as articulated in the ASOC, they seem to me to raise triable issues which are not amenable to the sort of summary determination contended for by the fourth defendant on the present application.
To the extent that the third defendant advanced cognate arguments, the same conclusion follows.
As a separate argument, the third defendant attacks the method of calculation of damages proposed in the ASOC. That approach can be summarised as follows:
(a)The first plaintiff contends that what it acquired for the purchase price of $1,850,000 (plus stamp duty) at the time of settlement consisted of:
(i)its rights under the lease of the Hotel to Cashcow, and
(ii)the value of the reversionary interest in the Hotel premises.
The plaintiffs then plead a range of matters on which they would rely to support the proposition that as at 1 July 2005 "there was an inherent probability that the loss of most of [the first plaintiff's] investment [in the Hotel] was inevitable". The matters referred to include, by way of example, the fact that the relationship between the first plaintiff as landlord and Cashcow as tenant was unsupported by guarantees in circumstances where the first plaintiff was not the licensee (i.e. the holder of the liquor licence) in occupation of the premises, and a range of facts and circumstances concerning the characters of Khan and Taylor and the way they ran the Hotel business, which led cumulatively to the cancellation of the liquor licence which, in turn, "destroyed the income earning capacity of the Hotel premises", and the subsequent financial demise of the Hotel. The first plaintiff, as I have said, points to these matters to support the proposition that the true value of what was acquired on 1 July 2005 was much less than the $1,850,000 which it paid. Specifically, it says that:
(a)the rights acquired under the Hotel lease were actually worth about $310,000, and
(b)the value of the reversionary interest was actually about $320,000.
The plaintiff contends, therefore, that on 1 July 2005 the first plaintiff suffered an immediate loss of about $1,195,000 plus the amount it paid in stamp duty and purchase costs when it settled on the acquisition of the Hotel.
The third defendant argues that this approach is flawed because what the first plaintiff is seeking to do is calculate its damages by reference to events which, as at 1 July 2005, had not yet occurred or were unknown to and unknowable by the third defendant. The third defendant says that in those circumstances, it is impossible, and impermissible, for such matters to be taken into account in making an assessment of true value in hindsight.
It is clear, in point of principle, that the Court, when assessing the true value of an asset sold, may take into account events which occurred after the date of sale for the purposes of ascertaining its true value. In HTW Valuers v Astonland Pty Ltd[3], the High Court observed:
"40Finally, although the court is entitled to take into account events after the date of acquisition, it must distinguish among possible causes of the decline in value of what has been bought. 'If the cause is inherent in the thing itself, then its existence should be taken into account in arriving at the real value of the shares or other things at the time of the purchase. If the cause be 'independent', 'extrinsic', 'supervening' or 'accidental', then the additional loss is not the consequence of the inducement.'"[4]
The difficulty with the argument sought to be advanced on behalf of the third defendant on a summary basis is that it is simply not possible, in the absence of evidence, to make an assessment as to whether some or all of the matters sought to be relied on by the plaintiffs are matters which can properly be taken into account, or whether they should properly be characterised as "independent, extrinsic, supervening or accidental", and therefore not possible causes of the claimed decline in value. This is particularly so in respect of the matters concerning the liquor licence. Whether rental levels were doomed from the outset or whether, in the circumstances of this transaction, there was at the date of settlement an inherent vulnerability of the liquor licence to cancellation are matters of fact for determination at trial. The matters identified by the third defendant can be pleaded in defence of the claim. It may be that the third defendant is successful in that argument, on the evidence accepted by the trial judge. But it is clearly inappropriate for me to make a summary determination in respect of these matters without the benefit of the necessary findings.
None of the arguments advanced by the third defendant or the fourth defendant persuade me that the cases sought to be advanced against them by the plaintiffs in the ASOC are so inarguable as to preclude the necessary leave from being granted.
Accordingly, there will be an order granting leave to file the ASOC.
The costs of and incidental to the present application ought properly be reserved.
I direct the parties to bring in the necessary draft order.
[1] Constantidins v Kehagiadis [2011] NSWSC 1974.
[2] Smith v Noss [2006] NSWCA 37, per Giles JA at [25].
[3] (2004) 217 CLR 640.
[4] Potts v Miller (1940) 64 CLR 282 at 298, per Dixon J; see also Gould v Baggelas (1985) 157 CLR 215 at 220, per Gibbs CJ.

redpajama_set_name: RedPajamaCommonCrawl


text:
Traditional Downsizing: SIG Sauer P224 Review
The SIG P224 is a throwback in terms of creating a smaller, easier to conceal self-defense pistol. James likes the fact that it retains an aluminum frame, not plastic.
February 28, 2013 By Frank W. James
For the past several years the term "downsizing" has had ominous connotations for most every industry and its employees. While the people running the company make claims to the stockholders about improved efficiencies and increased profits, the people below them who are responsible for making the big gears turn know all too well what the unofficial implication of the term means. Someone, often many and multiple someones, are soon going to be on the unemployment line.
Here, in this instance, however, I use the term not in such a negative manner, but as a means to describe the SIG Model P224.
Unlike many of the newer additions to the reduced size, lighter weight concealed carry pistol market, this new pistol from SIG, the P224, is a throwback in more ways than one to the more traditional means of creating a smaller, easier to conceal self-defense pistol.
They have mechanically "abbreviated" it and by that I mean the main features on this pistol are the shortened slide and the reduced grip length when compared to SIG's classic pistols like the SIG P226, whether the latter pistol was chambered for the 9x19mm cartridge or the .40 S&W/.357 SIG round. Another more traditional aspect of the SIG 224 is the fact it is an all metal gun and not one made from a polymer compound.
These characteristics are not the norm today and to really appreciate them, a brief examination of this pistol's heritage will offer an explanation why I think it is worthwhile.
SIG's Classic Pistols
I've long been a fan of the SIG P226 in 9x19mm. My personal SIG P226 is an aged one having been made in West Germany — it says so on the right side of the slide — and was imported into the USA when SIG was located in Herndon, Va. — marked on the left side of the slide. That was a long time ago. This gun has digested a large number of rounds over the decades and years, but to be truthful I have absolutely no idea as to how many.
It was sent back to SIG for an overhaul a few years ago that was needed more in terms of cosmetic enhancement as opposed to any true mechanical overhaul. I've owned the gun for more than three decades, so I can say with honesty that I'm familiar with the design, its operation and it remains one of my favorite 9x19mm caliber semi-auto pistols.
Yet, it is also a dated design because my old SIG P226 features the two-piece mandrel slide as opposed to the one-piece examples machined today totally from stock at the SIG plant in Exeter, N.H. Additionally, as sweet as the double action/single action trigger pull is on my personally owned P226, it is not the latest in terms of what's being offered to those in law enforcement or those civilians needing a personal protection handgun.
That would be the "DAK" trigger system like that found on the test SIG P224. DAK in this instance stands for "Double Action Kellerman," with Kellerman being the man responsible for this new-age SIG trigger system.
One of the reasons why I'm a big fan of SIG's Classic line of semi-auto pistols can be traced directly to the shape of the trigger found on most any SIG pistol using the traditional double action/single action trigger system. I've learned the hard way that pistols featuring a safety blade in the middle of the trigger face have a tendency to wear more than blisters on my somewhat fore-shortened trigger finger during intensive high round count training sessions.
In fact, it gets worn raw and being the wimp that I am, I migrated to a pistol that was accurate, held up well to extensive use and didn't remove layers of skin off the trigger finger pad during high round count training sessions. In many ways, the smooth SIG trigger face reminds one of the well-tuned double action revolvers that I cut my teeth on during the majority of my shooting career and it's easy on my trigger finger.
The DAK trigger found on the sample P224 is just an extension of that success, but it was designed with a more real world application as opposed to those of us who routinely punch holes in brown cardboard with pistol fire. The DAK trigger system changes things from the traditional SIG layout in that there is no tab or lever at the front of the left grip panel to safely drop the hammer when shooting is completed and the firearm remains cocked.
That's because it is a version of a commonly seen double-action-only system, but here the system relies upon a somewhat lengthy trigger pull. It's not difficult to manipulate nor could it be classified as heavy, but the situation does get somewhat complicated when you add in the reduced grip length of the SIG P224 into the equation because there isn't a whole lot for the shooter's hand to grasp and control during that lengthy trigger pull.
As for the management of the trigger pull, I found that slowly staging the double-action DAK trigger yielded the best groups in terms of accuracy, but for me that took exceptional concentration because I am so used to the old trigger system.
Still, like my much beloved SIG P226, the trigger face is smooth and attention has been paid all over the gun to remove any sharp edges so its outside surface and edges fall into that "well-worn-bar-of-soap" category that so many manufacturers of concealed carry pistol claim membership in, but few really understand the secret handshake that comes with it.
James calls the P224 grip a 'two finger ' grip because that's about as many as anyone is going to be able to use. The checkering on the front of the grip frame helps a little.
A key feature of the DAK trigger system is even though the gun remains a hammer fired design, there is no hammer spur, nor is there any single-action semi-auto capability.
SIGLITE night sights have two tritium powered dots positioned on either side of the U-notch on the substantial rear sight blade.
The front sight is dovetailed at the slide front.
James noticed the P224's ejection port was noticeably smaller than the one on his P226, yet the gun ran flawlessly throughout testing. 9x19mm or .357 SIG versions will be made.
The .40 S&W and the .357 SIG magazines hold 10 rounds, while the 9x19mm magazine will hold 11. Witness holes make it easy to see how many rounds remain in the magazine.
Once the slide is locked to the rear, the take-down lever can be rotated downward and the slide removed from the frame. Everything after that is simple and easy.
James achieved his best groups in testing with the milder recoiling loads like these 165-grain FMJ loads from Remington. This five-shot group was shot at a distance of seven yards.
P224 Models
There are four specific models of the SIG P224 and the one received for testing is the sole example of the four offered with a nickel-finished slide. In comparison to my aged P226, the sample P224 had a slide that measured 6.25 inches in length versus 7.125 inches for my older gun. The gun only weighs 25.4 ounces with an empty magazine.
You can see the reduction in slide length really isn't that great, but the reduction in grip length on the aluminum frame was noticeable. Measuring from the bottom of the slide to the bottom of the magazine (empty, but in the gun) the distance was 3.375 inches. The same measurement on the P226 was a full inch longer.
That missing inch is noted when shooting robust loads, rapidly, as I had a terrible time shooting good groups with some of the hotter loads I tried. I did shoot a couple of decent groups with yellow box 165-grain Remington FMJ loads, but they were pretty much the mildest loads I used in testing the sample pistol and the distance was a short 7 yards.
It's a Metal Gun
The introduction of the P224 has in one sense made a liar out of me because I've been saying over the last few years we would probably never see a new pistol made completely out of metal. Well, the SIG P224 is an all metal gun and not one made with polymer in the frame, but it's not a completely new gun in that it is a modification of an existing and extremely successful design, so maybe I'm half-right.
In comparing it to my old reliable P226, slide thickness was pretty much the same. There were differences in the frames in a couple of areas, but on the P224 that was because someone paid attention to potential sharp edges and they were eliminated by removing corners.
One of the more interesting dimensional differences I discovered was the much smaller ejection port on the new gun. The SIG P224 has an ejection port that measured 1.050 inches in length on the right outside while the older gun has a port that measures 1.200 inches in approximately the same location. On top of the slide the ejection port on the old P226 measures 1.354 inches while the same location on the new P224 measures only 1.195 inches and it is important to note the older gun is chambered for the 9x19mm round while the new gun is in .40 S&W caliber.
The front of the short grip section is checkered on the front, and the grip panels have deep scallops on the sides and the back. Still, the shortened grip allows only a two-finger grip at best, and any increase in grip control is one that is deeply appreciated with this design.
The sights are SIG's SIGLITE night sights with the tritium powered dots; two on either side of the U-notch on the rear blade and a single dot on the ramp back face of the dovetailed installed front sight. They worked extremely well in the limited light of the indoor range I used for testing the SIG P224.
Magazine capacity for the SIG P224 is 10 rounds of .40 S&W and 11 rounds when chambered in 9x19mm. These short magazines drop free and consist of metal tubes with a synthetic follower and baseplate. There are witness holes on the back of the magazine tube to verify the number of rounds loaded. Of course, the beauty to this design is in its role as a back-up gun as it can utilize the full length and full capacity magazines normally associated with the SIG P229, P226 and P228 designs if the both guns are the same caliber.
The SIG P224 is a downsized self-defense concealed carry pistol of the old school. The major components are all metal and the downsizing that took place here were reductions in slide length and grip length, not some total redesign of the gun to be used with a polymer frame. The beauty of the gun lies in the fact it will use the same magazines as its larger brethren and that is a big bonus. Plus it also comes with a trigger system built and developed for today's real world environments, not just the formal target range.
No, in this instance, downsizing was not a bad thing at all.
The SIG P224 is available in 9x19mm, .357 SIG and .40 S&W chamberings. MSRP is $1,125.


text:
Q: Deserializing json to C# list with existing items Given the following classes:
class Report {

    public Report() {
        this.Fields=new List<Field>();
    }

    [JsonProperty("fields")]
    public IList<Field> Fields { get; private set; }
}

class Field {

    [JsonProperty("identifier")]
    public Guid Identfier { get;set; }

    [JsonProperty("name")]
    public string Name { get;set; }
}

and the following test method set up:
var report = new Report();
report.Fields.Add(new Field { Identifier = new Guid("26a94eab-3d50-4330-8203-e7750abaa060"), Name = "Field 1" });
report.Fields.Add(new Field { Identifier = new Guid("852107db-b5d1-4344-9f71-7bd90b96fec0"), Name = "Field 2" });

var json = "{\"fields\":[{\"identifier\":\"852107db-b5d1-4344-9f71-7bd90b96fec0\",\"name\":\"name changed\"},{\"identifier\":\"ac424aff-22b5-4bf3-8232-031eb060f7c2\",\"name\":\"new field\"}]}";

JsonConvert.PopulateObject(json, report);

Assert.IsTrue(report.Fields.Count == 2, "The number of fields was incorrect.");

How do I get JSON.Net to know that the field with identifier "852107db-b5d1-4344-9f71-7bd90b96fec0" should apply to the existing field with the same identifier?
Also, is it possible to get JSON.Net to remove items that do not exist within the given JSON array, (specifically the field with identifier "26a94eab-3d50-4330-8203-e7750abaa060" should be removed because it does not exist in the given json array.
If there is a way to manually code or override the way that JSON analyses a list then that would be better because I could write the code to say "this is the item you need" or "use this newly created item" or just "don't do anything to this item because I have removed it".  Anyone know of a way I can do this please?

A: You can use the option ObjectCreationHandling = ObjectCreationHandling.Replace.
You can do this for your entire data model using serializer settings, as is shown in Json.Net PopulateObject Appending list rather than setting value:
    var serializerSettings = new JsonSerializerSettings {ObjectCreationHandling = ObjectCreationHandling.Replace};
    JsonConvert.PopulateObject(json, report, serializerSettings);

Or, you can set the option on the JsonProperty attribute you are already using if you don't want to do this universally:
class Report
{
    public Report()
    {
        this.Fields = new List<Field>();
    }

    [JsonProperty("fields", ObjectCreationHandling = ObjectCreationHandling.Replace)]
    public IList<Field> Fields { get; private set; }
}

redpajama_set_name: RedPajamaStackExchange


It's never nice to see a fellow super saver make a howler. But Brad Guzan, hang your head in shame! If you haven't seen his costly error, it is well worth a wee Google (other search engines are available). Guzan (pictured) may have just cost his team their place in the Premier League. They now must win every game just to reach 40 points, the magic number to achieve survival, usually. And despite winning the shots on target battle against Swansea, Villa remain stranded at the foot of the table.
Meanwhile, Premier League stalwart and top super saver Tim Howard has announced he will move on from Everton at the end of the season. He's off to join the Colorado Rapids! And while he hasn't always been a fan favourite for the Toffees, he sure has helped his team this season – so far helping his side to be three places better off in the Premier League. If it weren't for the big American at times, Everton would be facing a real battle with relegation. Tim Howard, Bob Friendly salutes you!
As we head into the international break, here is how our alternative league table looks.


text:
2017/12/02 – Mud Creek I
Checking out the former upper reaches of Mud Creek from Yonge and Eglinton. Documents and local grading suggest Mud Creek skirted the southwest corner of Canada Square.
Another ravine infilled for a recreation park. Shame.
After following Rosewell Avenue on the eastern tableland of the former ravine, you come to Lytton Park. South of the road, apparently it used to be some guy's garden. Private property still occupies a space between the park and Cortleigh Boulevard.
North of the road, it's lawn bowling and tennis courts. Nice steps though.
Eventually there's a swale and a ravine. Most of it is thick vegetation, and you have a hard time knowing where public property boundaries are. As shrouded as it is, it's painfully obvious after arriving at another park.
North of Lawrence, it's reminiscent of stormwater management seen in North York Centre. Surface ditches drain into the storm sewer.
I've run into a series of continuous ditches and culverts. Whether this is original or not is always hard to say, but chances are good.
I found this fenced off linear parcel of land northwest of Bathurst at Prince Charles. Walking on the other side of it, appeared to be some sort of tiny wetland. But completely lost it after that, presume it's the headwater anyway.
This walk concluded by walking under a wall.
Length: 8.0 km
Metroscapes Walks
Related Walks
Mud Creek south of Mt Pleasant Cemetery
Scarb Utility
Beaches Creeks


Lunch orders are available once a week on a Friday. These orders are prepared by the Geographe Primary School Canteen and delivered to our school. Parents can register for this service and manage their orders online at https://quickcliq.com.au/.
The current canteen menu can be viewed below.


The bass player of Berlin indie pop outfit Britta on their spontaneous 20th-anniversary tour.
We always talked about how fun it would be to play together again. Only this year, on Christiane [Rösinger]'s birthday in January, her grandson constantly sang our song "Lichtjahre voraus", and he knew all the lyrics. It was so cool that we thought, 'Our fans long for us.' We just had to do it, it's been too long. Britta is unrivalled anyway, there's no female band like us. Christiane is one of the funniest and, at the same time, profound lyricists; ironic and serious. We have plenty of songs that we're eager to revive and which are still relevant today.
I miss our drummer Britta, though, and I always will. Touring won't be the same without her. In our 20-year band history her death [in 2004] was, of course, the biggest change. She was so unique. To have drummer Sebastian Vogel around, who had already played with us before, was maybe one of the reasons we could continue at all. It will always be a sad part of our history, but we do cherish the moments with her, reminiscing about our good times on the tour bus, just talking.


Modern magnetic disks are, as is well known, dramatically slower at random reads than sequential reads. Technological progress has exacerbated the problem; disk throughput has increased by a factor of 60 to 85 over the past twenty-five years, but seek times have decreased by a factor of only 15. Disks are less and less like random access devices in terms of performance. Although flash memory reduces the cost differential of random accesses, disks continue to offer vast amounts of inexpensive storage. For the foreseeable future, it will remain important to optimize the performance of applications that access disk like devices that is, devices with much faster sequential than random access. The best solution to this performance problem is to avoid critical path disk access altogether and reading unneeded data as sequential access and discarding it later.
Infill, Libprefetch, Seek, Readahead, StridedAccess ,Sqlite .
In application-directed prefetching systems, the application informs the storage system of its intended upcoming reads. (Databases, scientific workloads, and others are easily able to calculate future accesses. Previous work on application-directed caching and prefetching demonstrated relatively low speedups for single-process, single-disk workloads (average speedup 26%, maximum 49%). However, this work aimed to overlap CPU time and I/O fetch time without greatly increasing memory use, and thus prefetched relatively little data from disk (16 blocks) just before a process needed it. Our system, aims solely to minimize I/O fetch time, a better choice given today's widened gap between processor and disk performance. The prefetching system is aggressive, fetching as much data as fits in available memory. It is also relatively simple, fitting in well with existing operating system techniques; most code is in a user-space library. Small, but critical, changes in kernel behaviour help ensure that prefetched data is kept until it is used. A contention controller detects changes in available memory and compensates by resizing the prefetching window, avoiding performance collapse when prefetching applications compete for memory and increasing performance when more memory is available. Our measurements show substantial speedups on test workloads, such as a 20x speedup on a SQLite table scan of a data set that is twice the size of memory. Running concurrent instances of applications with libprefetch shows similar factors of improvement.
Disk ModelingRuemmler and Wilkes is the classic paper on disk performance modeling. Our seek time observations complement those of Schlosser et al; like them, we use our observations to construct more effective ways to use a disk.
Predicting Accesses Operating systems have long employed predictive read-ahead algorithms to speed up sequential file access. This improves performance for many workloads, but can retard performance if future accesses are mispredicted. As a result, read-ahead algorithms usually don't try to improve less predictable access patterns, such as sequential reads of many small files or non-sequential reads of large files.
Application-Directed Accesses Cao et al. and Patterson et al present systems like libprefetch where applications convey their access patterns to the file sys-tem to increase disk read performance.
Inferred Accesses Rather than requiring the application to explicitly supply a list of future reads, a prefetching system can automatically generate the list either from application source code, using static analysis , or from the running application, using speculative execution .
Disk prefetching algorithms aim to improve the performance of future disk reads by reading data before it is needed. Since our prefetching algorithm will use precise application information about future accesses, we need not worry about detecting access patterns or trying to predict what the application will use next. Instead, the chief goal is to determine the fastest method to retrieve the requested data from disk.
This section uses disk benchmarks to systematically build up a prefetching algorithm that takes advantage of the strengths, and as much as possible avoids the weak-nesses, of modern I/O subsystems. The prefetching algorithm must read at least the blocks needed by the application, so there are only a few degrees of freedom available. The prefetcher can reorder disk requests within the window of memory available for buffering, it can combine disk requests, and it can read non-required data if that would help. Different disk layout or block allocation algorithms could also lead to better performance, but these file system design techniques are orthogonal to the issues we consider.
Conventional disk scheduling algorithms do not know what additional requests will arrive in the future, leading to a relatively small buffer of requests that can be reordered. In contrast, a prefetching algorithm that does know future accesses can use a reorder buffer as large as available memory. A larger buffer can substantially reduce average seek distance. In this section, we measure the actual cost of various seek distances on modern disks, aiming to determine where seek distance matters and by how much. We measured the average time to seek various distances, both forward and backward. Because the seek operation is below the disk interface abstraction, it is only possible to measure a seek in conjunction with a read or write operation. Therefore, the benchmarks start by reading the first block of the disk to establish the disk head location (or the last block, if seeking backward), then read several blocks from the disk, each separated by the seek distance being tested. With this test methodology, a seek distance of zero means that we read sequential disk locations with multiple requests, and a seek distance of 1 block re-reads the same block repeatedly. All the tests in this section use Direct I/O to skip the buffer cache, ensuring that buffer cache hits do not optimize away the effects we are trying to measure Seek time increases by roughly a factor of five from around 112KB to roughly 1 to 4MB, shown as in the graphs. In contrast, seek times for distances above 2.7MB increase slowly, by about a factor of one.Not considering the disk geometry effects visible as oscillations, a disk scheduling algorithm should minimize seek distance; though not all seek reductions are equal, reducing medium seeks far below 2MB will have more impact than reducing very large seeks to 2MB or more. Figure 1 shows the unexpected result that for distances up to 2.7MB, it may be cheaper to read that amount of data than to seek. This suggests that adjacent requests with small gaps might be serviced faster by requesting the entire range of data and discarding the uninteresting data.
Figure 2 suggested that reading and discarding small gaps between requests might be faster than seeking over those gaps.We modified the previous benchmark to add infill, varying the maximum infill allowed. Figure shows that in fill of up to 32KB reduces runtime on Disk 2. This corresponds to the region of Figure 1 where seeks take longer than similarly-sized maximum-throughput reads. Infill amounts between 32KB and 2MB have no additional effect, corresponding to the region of the seek graph where seek time is equal to read time for an equivalent amount of data. When infill is allowed to exceed 2MB, runtime increases. Itconfirming that reads of this size are more expensive than seeking. For the 16MB reorder buffer dataset, infill has very little effect: as Figure 2 shows, the average seek distance for this test is 128KB, above the threshold where we expect infill to help. On Disk 1, however, infill was performanceneutral. Apparently its firmware makes infill largely redundant.
An analysis of the performance characteristics of modern disks led us to a new approach to prefetching. Our prefetching algorithm minimizes the number of expensive seeks and leads to a substantial performance boost for nonsequential workloads. Libprefetch, a relatively simple library that implements this technique, can speed up real-world instances of non-sequential disk access, including image processing and database table scans, by as much as 4.9x and 20x, respectively, for workloads that do not fit in main memory. Furthermore, a simple contention controller enables this new prefetching algorithm to peacefully coexist with multiple instances of it as well as other applications. An analysis of the performance characteristics of modern disks led us to a new approach of infilling. Our infill algorithm minimizes seek time of the substantial expensive seeks and leads to performance boost for non-sequential workloads. Although it need average of 3 MB of dedicated memory for operation but provides 1.049 xs-1.084 x improvements in seek time.
1. Chris Ruemmler and John Wilkes, "An introduction to disk drive modelling.",IEEE Computer 27(3):17-28, 1994.
2. http://fox.wikis.com/wc.dll? Wiki~ Modern Hard Disk Specifications.
3. Thomas M.,Kroeger and Darrell D. E. Long, "The case for efficient file access pattern modeling." In Proc. 7th Workshop on Hot Topics in Operating Systems (HotOS-VII), pages 14-19, Rio Rico, AZ.
4. Steven W., Schlosser, Jiri Schindler, Stratos Papadomanolakis, Minglong Shao, Anastassia, Ailamaki, Christos, Faloutsos, and Gregory, R.
Ganger, "On multidimensional data and modern disks. ", In Proc. 4th USENIX Conference on File and Storage Technologies (FAST '05), pages 225-238, San Francisco, CA, December.
5. James Griffioenand Randy Appleton, "Reducing file system latency using a predictive approach", In Proc. USENIX Summer 1994Technical Conference, pages 197-207, Boston, MA.
7. Seung Woo Son, SaiPrashanthMuralidhara, OzcanOzturk, MahmutKandemir, Ibrahim Kolcu,Mustafa Karakoy, "Profiler and Compiler Assisted Adaptive I/O Prefetching for Shared Storage Caches" , PACT'08,October 25–29, 2008, Toronto, Ontario, Canada.


The term 'impact' is used increasingly, not least in research. What is research impact? How is research impact measured? What does research impact mean for researchers? Why is the impact of research an important consideration for those working in universities? In this informative seminar, Liz Bonnett, DMU's Research Excellence Framework (REF) Officer for Research Impact will explain research impact and why it matters to you.
The Institute of Health and Wellbeing are holing a lunchtime seminar on Wednesday 10 February in Cottesbrooke room C328. The seminar is presented by Dr. Sheila Hardy and titled Mental Health Training for Primary Health Practitioners. Read on for full details.


Mom's Life at Northwood Church is a ministry for moms with kids from birth–5th grade.
We want to encourage, equip, and connect you in this wonderful season of life! Come and join other women just like you, drink coffee, eat dessert, and be refreshed.
This event will be held in The Extension this month.
Childcare works a little differently this year—watch the video below to see how to sign up for childcare.


text:
Indian Numismatic, Historical and Cultural
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec 2020 2019 2018 2017 2016 2015 Older
Spread of Buddhism at the time of King Asoka. (3rd Century BCE to 1st Century BCE)
© Utkarsha Thakur, 27 Jul 2021
Dhamma sadhu, kiyam cu dhammeti? Apasinave, bahukayane, daya, dane, sace, socaye.
Dhamma is good, but what constitutes Dhamma? (It includes) little evil, much good, kindness, generosity, truthfulness and purity.
With the rediscovery and translation of Indian literature by European scholars in the 19th century, it was not just the religion and philosophy of Buddhism that came to light, but also its many legendary histories and biographies. Amongst this class of literature, one name that came to be noticed was that of Asoka, a good king who was supposed to have ruled India in the distant past. Stories about this king, similar in outline but differing greatly in details, were found in the Divyavadana, the Asokavadana, the Mahavamsa and several other works. They told of an exceptionally cruel and ruthless prince who had many of his brothers killed in order to seize the throne, who was dramatically converted to Buddhism and who ruled wisely and justly for the rest of his life.
But in 1837, James Prinsep succeeded in deciphering an ancient inscription on a large stone pillar in Delhi. Several other pillars and rocks with similar inscriptions had been known for some time and had attracted the curiosity of scholars. Prinsep's inscription proved to be a series of edicts issued by a king calling himself "Beloved-of-the-Gods, King Piyadasi." In the following decades, more and more edicts by this same king were discovered and with increasingly accurate decipherment of their language, a more complete picture of this man and his deeds began to emerge. Gradually, it dawned on scholars that the King Piyadasi of the edicts might be the King Asoka so often praised in Buddhist legends. However, it was not until 1915, when another edict actually mentioning the name Asoka was discovered, that the identification was confirmed. Having been forgotten for nearly 700 years, one of the greatest men in history became known to the world once again.
King Asoka-
His given name was Asoka but he assumed the title Devanampiya Piyadasi which means "Beloved-of-the-Gods, He Who Looks On With Affection." There seems to have been a two-year war of succession during which at least one of Asoka's brothers was killed. In 262 B.C., eight years after his coronation, Asoka's armies attacked and conquered Kalinga, a country that roughly corresponds to the modern state of Orissa. The loss of life caused by battle, reprisals, deportations and the turmoil that always exists in the aftermath of war so horrified Asoka that it brought about a complete change in his personality. It seems that Asoka had been calling himself a Buddhist for at least two years prior to the Kalinga war, but his commitment to Buddhism was only lukewarm and perhaps had a political motive behind it. But after the war Asoka dedicated the rest of his life trying to apply Buddhist principles to the administration of his vast empire. He had a crucial part to play in helping Buddhism to spread both throughout India and abroad and probably built the first major Buddhist monuments. Asoka died in 232 B.C. in the thirty-eighth year of his reign.
Measures taken by Asoka to spread Buddhism-
It is also very clear that Buddhism was the most influential force in Asoka's life and that he hoped his subjects likewise would adopt his religion. He went on pilgrimages to Lumbini and Bodh Gaya, sent teaching monks to various regions in India and beyond its borders, and he was familiar enough with the sacred texts to recommend some of them to the monastic community. It is also very clear that Asoka saw the reforms he instituted as being a part of his duties as a Buddhist. But, while he was an enthusiastic Buddhist, he was not partisan towards his own religion or intolerant of other religions.
Scholars have suggested that because the edicts say nothing about the philosophical aspects of Buddhism, Asoka had a simplistic and naive understanding of the Dhamma. This view does not take into account the fact that the purpose of the edicts was not to expound the truths of Buddhism, but to inform the people of Asoka's reforms and to encourage them to be more generous, kind and moral.
Society during Asoka-
The contents of Asoka's edicts make it clear that all the legends about his wise and humane rule are more than justified and qualify him to be ranked as one of the greatest rulers. The first was what he based his administration upon and what he hoped would lead to a more just, more spiritually inclined society, while the second was what he recommended and encouraged individuals to practice. Both these types of morality were imbued with the Buddhist values of compassion, moderation, tolerance and respect for all life The judicial system was reformed in order to make it more fair, less harsh and less open to abuse. State resources were used for useful public works. To ensure that these reforms and projects were carried out, Asoka made himself more accessible to his subjects by going on frequent inspection tours and he expected his district officers to follow his example. Hunting certain species of wild animals was banned, forest and wildlife reserves were established and cruelty to domestic and wild animals was prohibited. The protection of all religions, their promotion and the fostering of harmony between them, was also seen as one of the duties of the state. It even seems that something like a Department of Religious Affairs was established with officers called Dhamma Mahamatras whose job it was to look after the affairs of various religious bodies and to encourage the practice of religion.
The individual morality that Asoka hoped to foster included respect (susrusa) towards parents, elders, teachers, friends, servants, ascetics and brahmans — behavior that accords with the advice given to Sigala by the Buddha (DighaNikaya, Discourse No. 31). He encouraged generosity (dana) to the poor (kapanavalaka), to ascetics and brahmans, and to friends and relatives. Not surprisingly, Asoka encouraged harmlessness towards all life (avihisabhutanam). In conformity with the Buddha's advice in the AnguttaraNikaya, II:282, he also considered moderation in spending and moderation in saving to be good (apavyayataapabhadata). The qualities of heart that are recommended by Asoka in the edicts indicate his deep spirituality. They include kindness (daya), self-examination (palikhaya), truthfulness (sace), gratitude (katamnata), purity of heart (bhavasudhi), enthusiasm (usahena), strong loyalty (dadhabhatita), self-control (sayame) and love of the Dhamma (Dhammakamata).
We have no way of knowing how effective Asoka's reforms were or how long they lasted but we do know that monarchs throughout the ancient Buddhist world were encouraged to look to his style of government as an ideal to be followed. King Asoka has to be credited with the first attempt to develop a Buddhist polity. Today, with widespread disillusionment in prevailing ideologies and the search for a political philosophy that goes beyond greed (capitalism), hatred (communism) and delusion (dictatorships led by "infallible" leaders), Asoka's edicts may make a meaningful contribution to the development of a more spiritually based political system.
Edicts of Asoka-
Asoka's edicts are to be found scattered in more than thirty places throughout India, Nepal, Pakistan and Afghanistan. Most of them are written in Brahmi script from which all Indian scripts and many of those used in Southeast Asia later developed. The language used in the edicts found in the eastern part of the sub-continent is a type of Magadhi, probably the official language of Asoka's court. The language used in the edicts found in the western part of India is closer to Sanskrit although one bilingual edict in Afghanistan is written in Aramaic and Greek. These pillars in particular are testimony to the technological and artistic genius of ancient Indian civilization. Originally, there must have been many of them, although only ten with inscriptions still survive. Averaging between forty and fifty feet in height, and weighing up to fifty tons each, all the pillars were quarried at Chunar, just south of Varanasi and dragged, sometimes hundreds of miles, to where they were erected. Each pillar was originally capped by a capital, sometimes a roaring lion, a noble bull or a spirited horse, and the few capitals that survive are widely recognized as masterpieces of Indian art. Both the pillars and the capitals exhibit a remarkable mirror-like polish that has survived despite centuries of exposure to the elements. Some, like the Lumbini pillar, mark the Buddha's birthplace, while its inscriptions commemorate Asoka's pilgrimage to that place. Others are to be found in or near important population centers so that their edicts could be read by as many people as possible.
There is little doubt that Asoka's edicts were written in his own words rather than in the stylistic language in which royal edicts or proclamations in the ancient world were usually written in. Asoka's style tends to be somewhat repetitious and plodding as if explaining something to one who has difficulty in understanding. Asoka frequently refers to the good works he has done, although not in a boastful way, but more, it seems, to convince the reader of his sincerity. Asoka tells his subjects that he looked upon them as his children, that their welfare is his main concern; he apologizes for the Kalinga war and reassures the people beyond the borders of his empire that he has no expansionist intentions towards them.
The Edicts of Asoka are a collection of 33 inscriptions on the Pillars of Asoka as well as boulders and cave walls made by the Emperor Asoka of the Mauryan Empire during his reign from 269 BCE to 232 BCE. These inscriptions were dispersed throughout the areas of modern-day Bangladesh, India, Nepal, Afghanistan and Pakistan and represent the first tangible evidence of Buddhism. The edicts describe in detail the Asoka's view about dhamma, an earnest attempt to solve some of problems that a complex society faced. According to the edicts, the extent of Buddhist proselytism during this period reached as far as the Mediterranean, and many Buddhist monuments were created. The Edicts are divided into:
Pillar Edicts
Major Rock Edicts: 14 Edicts (termed 1st to 14th) and 2 separate ones found in Odisha
Major Rock Inscriptions: Minor Rock Edicts, the Queen's Edict, Barabar Caves inscriptions and the Kandahar bilingual inscription.
These inscriptions proclaim Asoka's adherence to the Buddhist philosophy which, as in Hinduism is called dharma, "Law". The inscriptions show his efforts to develop the Buddhist dharma throughout his kingdom. Although Buddhism and the Gautama Buddha are mentioned, the edicts focus on social and moral precepts rather than specific religious practices or the philosophical dimension of Buddhism. These were located in public places and were meant for people to read.
In these inscriptions, Asoka refers to himself as "Beloved servant of the Gods" (Devanampiyadasi) The identification of Devanampiyadasi with Asoka was confirmed by an inscription discovered in 1915 by C. Beadon, a British gold-mining engineer, at Maski, a village in Raichur district of Karnataka. Another minor rock edict is found at the village Gujarra in Datia district of Madhya Pradesh. This also shows the name "Asoka" in addition to usual "Devanampiyadasi". The inscriptions found in the eastern part of India were written in Magadhi Prakrit using the Brahmi script. These edicts were deciphered by British archaeologist and historian James Prinsep.
The inscriptions revolve around a few recurring themes: Asoka's conversion to Buddhism, the description of his efforts to spread Buddhism, his moral and religious precepts, and his social and animal welfare program. The edicts were based on Asoka's ideas on administration and behaviour of people towards one another and religion.
Map of Asoka's Rock Edicts in India-
Geographical distribution of known capitals of the Pillars of Asoka. These are all thought to have been commissioned by Asoka
Stupa-
Stupa of Sanchi. The central stupa was built during the Mauryas, and enlarged during the Sungas, but the decorative gateway is dated to the later dynasty of the Satavahanas.
Asoka also invited Buddhists and non-Buddhists for religious conferences. He inspired the Buddhist monks to compose the sacred religious texts, and also gave all types of help to that end. Asoka also helped to develop viharas (intellectual hubs) such as Nalanda and Taxila. Asoka helped to construct Sanchi and Mahabodhi Temple. Asoka also gave donations to non-Buddhists. As his reign continued his even-handedness was replaced with special inclination towards Buddhism.[62] Asoka helped and respected both Shramanas (Buddhists monks) and Brahmins (Vedic monks). Asoka also helped to organise the Third Buddhist council (c. 250 BCE) at Pataliputra (today's Patna). It was conducted by the monk Moggaliputta-Tissa who was the spiritual teacher of Asoka.
Asoka's proselytism-
In order to propagate the Buddhist faith, Asoka explains that he sent emissaries to the Hellenistic kings as far as the Mediterranean, and to people throughout India, claiming they were all converted to the Dharma as a result. He names the Greek rulers of the time, inheritors of the conquest of Alexander the Great, from Bactria to as far as Greece and North Africa, displaying a clear grasp of the political situation at the time.
Proselytism beyond India-
Buddhist proselytism at the time of king Asoka (260–218 BCE).
Now it is conquest by Dhamma that Beloved-Servant-of-the-God considers to be the best conquest. And it [conquest by Dhamma] has been won here, on the borders, even six hundred yojanas away, where the Greek king Antiochos rules, beyond there where the four kings named Ptolemy, Antigonos, Magas and Alexander rule, likewise in the south among the Cholas, the Pandyas, and as far as Tamraparni. Rock Edict Nb13 (S. Dhammika)
The distance of 600 yojanas corresponds to the distance between the center of India and Greece, roughly 4,000 miles.
Amtiyoko refers to Antiochus II Theos of Syria (261–246 BCE), who controlled the Seleucid Empire from Syria to Bactria in the east from 305 to 250 BCE, and was therefore a direct neighbor of Asoka.
Turamaye refers to Ptolemy II Philadelphos of Egypt (285–247 BCE), king of the dynasty founded by Ptolemy I, a former general of Alexander the Great, in Egypt.
Amtikini refers to Antigonus II Gonatas of Macedon (278–239 BCE).
Maka refers to Magas of Cyrene (300–258 BCE).
Alikasudaro refers to Alexander II of Epirus (272–258 BCE).
The Khalsi rock edict of Asoka, which mentions the Greek kings Antiochus, Ptolemy, Antigonus, Magasand Alexander by name (underlined in colour)
In the Gandhari original Antiochos is referred to as "Amtiyoko nama Yona-raja" (lit. "The Greek king by the name of Antiokos"), beyond whom live the four other kings: "param ca tena Atiyokena cature 4 rajani Turamaye nama Amtikini nama Maka nama Alikasudaro nama" (lit. "And beyond Antiochus, four kings by the name of Ptolemy, the name of Antigonos, the name of Magas, the name Alexander"
It is not clear in Hellenic records whether these emissaries were actually received, or had any influence on the Hellenic world. Some scholars, however, point to the presence of Buddhist communities in the Hellenistic world from that time, in particular in Alexandria (mentioned by Clement of Alexandria). The pre-Christian monastic order of the Therapeutae may have drawn inspiration for its ascetic lifestyle from contact with Buddhist monasticism, although the foundation and Scriptures were Jewish.A possible Buddhist gravestone from the Ptolemaic period has been found by Flinders Petrie, decorated with a depiction of what may be Wheel of the Law and Trishula. Commenting on the presence of Buddhists in Alexandria, Robert Linssen pointed out that "It was later in this very place that one of the most active centres of Christianity was established".
The philosopher Hegesias of Cyrene, from the city of Cyrene where Magas ruled in Cyrenaica, is sometimes thought to have been influenced by the teachings of Asoka's Buddhist missionaries, given the similarity of some of his teachings with Buddhism.
Proselytism within Asoka's territories-
Inside India proper, in the realm of Asoka, many different populations were the object of the King's proselytism:
Here in the king's domain among the Greeks, the Kambojas, the Nabhakas, the Nabhapamkits, the Bhojas, the Pitinikas, the Andhras and the Palidas, everywhere people are following Beloved-Servant-of-the-Gods' instructions in Dhamma. Rock Edict Nb13 (S. Dhammika)
Greek communities-
Greek communities lived in the northwest of the Mauryan Empire, currently in Pakistan, notably ancient Gandhara, and in the region of Gedrosia, nowadays in Southern Afghanistan, following the conquest and the colonization efforts of Alexander the Great around 323 BCE. These communities therefore seem to have been still significant during the reign of Asoka. A notable mention references aspects of Greek society.
There is no country, except among the Greeks, where these two groups, Brahmans and ascetics, are not found, and there is no country where people are not devoted to one or another religion. Rock Edict Nb13 (S. Dhammika)
Two edicts in Afghanistan have been found with Greek inscriptions, one of these being a bilingual edict in Greek language and Aramaic. This edict, found in Kandahar, advocates the adoption of "Piety" (using the Greek term Eusebeia for Dharma) to the Greek community:
Ten years (of reign) having been completed, King
Piodasses (one of the titles of Asoka: Piyadassi or Priyadarsi, "He who is the beloved servant of the Gods and who regards
everyone amiably") made known (the doctrine of)
Piety (Greek:εὐσέβεια, Eusebeia) to men; and from this moment he has made men more pious, and everything thrives throughout the whole world. And the king abstains from (killing) livingbeings,another men and those who (are) huntsmen and fishermen of the king have desisted from hunting. And if some (were) intemperate, they have ceased from their intemperance as was in their power; and obedient to their father and mother and to the elders, in opposition to the past also in the future, by so acting on every occasion, they will live better and more happily. (Trans. by G. P. Carratelli).
The Kandahar Edict of Asoka, a bilingual inscription (Greek and Aramaic) by king Asoka, from Kandahar. Kabul Museum.
Other communities-
Kambojas are a people of Central Asian origin who had settled first in Arachosia and Drangiana (today's southern Afghanistan), and in some of the other areas in the northwestern Indian subcontinent in Sindhu, Gujarat and Sauvira.
The Nabhakas, the Nabhapamkits, the Bhojas, the Pitinikas, the Andhras and the Palidas are other people under Asoka's rule.
Conclusion-
The tragedy of Kalinga and Asoka's response to warfare was his inspiration for the formulation of the concept of dhamma. Dhamma derives from the concept, originally set down by Hinduism of dhamma (duty) which is one's responsibility or purpose in life but, more directly, from Buddha's use of dharma as cosmic law and that which should be heeded. Asoka's dhamma includes this understanding but expands it to mean general goodwill and beneficence to all as "right behaviour" which promotes peace and understanding. Asoka embarked on pilgrimages sites sacred to Buddha and began to disseminate his thoughts on dramas after he had embraced Buddhism. He ordered edicts, many referencing, dhamma or explaining the concept fully, engraved in stone throughout his empire and sent Buddhist missionaries to other regions and nations including modern-day Sri Lanka, China, Thailand, and Greece; in so doing, he established Buddhism as a major world religion. These missionaries spread Buddha's vision peacefully since, as Asoka had decreed, no one should elevate their own religion over anyone else's; to do so devalued one's own faith by supposing it to be better than another's and so lost the humility necessary in approaching sacred subjects. Buddha's remains, before Asoka's reign, had been placed in eight stupas (tumuli containing relics) around the country. Asoka had the relics removed and is said to have decreed the construction of 84,000 stupas throughout the country, each to have some part of the Buddha's remains inside. In this way, he thought, the Buddhist message of peace and harmonious existence between people and the natural world would be encouraged further. The number of these stupas is considered an exaggeration but there is no doubt that Asoka did order construction of a number of them, such as the famous work at Sanchi.
After reigning for nearly 40 years, Asoka died. His reign had enlarged and strengthened the Mauryan Empire and yet it would not endure for even 50 years after his death. His name was eventually forgotten, his stupas became overgrown, and his edicts, carved on majestic pillars, toppled and buried by the sands. When European scholars began exploring Indian history in the 19th century, the British scholar and orientalist James Prinsep came across an inscription on the Sanchi stupa in an unknown script which, eventually, he came to understand as referencing a king by the name of Devanampiya Piyadassi who, as far as Prinsep knew, was referenced nowhere else.
In time, and through the efforts of Prinsep in deciphering Brahmi Script as well as those of other scholars, it was understood that the Asoka named as a Mauryan king in the Puranas was the same as this Devanampiya Piyadassi. Prinsep published his work on Asoka in 1837 CE, shortly before he died, and the great Mauryan king has since attracted increasing interest around the world; most notably as the only empire-builder of the ancient world who, at the height of his power, renounced warfare and conquest to pursue mutual understanding and harmonious existence as both domestic and foreign policy.
Bibliography-
https://en.wikipedia.org/wiki/Ashoka
https://en.wikipedia.org/wiki/Edicts_of_Ashoka
https://www.accesstoinsight.org/lib/author
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December 3, 2014 December 2, 2014 This Day in Music Leave a comment Adam SandlerBob MarleyOzzy OsbourneRudolph. Ray Charles
This Day in Music History — December 3
1948 : Ozzy Osbourne is born John Michael Osbourne in Birmingham, England. He would become the lead singer of Black Sabbath.
1964 : The animated TV special "Rudolph The Red-Nosed Reindeer" debuts on CBS, with Burl Ives as the voice of Sam the Snowman. The special is based on the 1949 song, which has become a perennial favorite.
1966 : Having been convicted of heroin and marijuana possession, Ray Charles is given a five-year suspended sentence and fined $10,000.
1976 : Bob Marley is shot in the upper arm when intruders storm his house in Kingston, Jamaica attempting to assassinate the singer. The attack was motivated by politics, as elections in Jamaica were days away and Marley was seen as supporting the ruling party. Marley made a full recovery and never had the bullet removed, as he was told that the operation could cause him to lose movement in his fingers.
1994 : Adam Sandler performs "The Chanukah Song" on the Weekend Update segment of Saturday Night Live, enlightening us to the fact that Harrison Ford, Paul Newman and David Lee Roth (among many others) are, in fact, Jewish. Released as a single the following year, the would reach #10 US and become a seasonal favorite.


The rumors we've been hearing for weeks are true: Data protection provider Symantec, which swallowed storage company Veritas four years ago and has had indigestion ever since, is weeding out its staff and is in the process of laying off a number of longtime employees.
A substantial number of these, The Station has learned, are from the Veritas side of the company. No specific numbers have been given, but company spokeswoman Sherri Walkenhorst confirmed the "restructuring" of the company this morning to eWEEK.
News of layoffs in major Silicon Valley corporations -- or in any corporation, for that matter -- is always a downer, no question. However, often they are not a surprise, either. In this case, several sources for The Station have said that they are not surprised about this news.
"EMC, NetApp, HP -- even Dell -- have been eating Symantec's lunch on the storage side for months," one key source told us. "I'm not surprised in the least."
"They're also having problems with their products on the security side," another observer said. "I know more than a few people who junked their Norton stuff over the last year or so."
Our best wishes go with those people who have been deposed from their jobs at the Cupertino, Calif., company. Now it's time for CEO John Thompson to get his act together and cook some good results or get out of the kitchen; he's had four years to bring the merger together and it looks as though it's not ever going to work.
We'll keep our eyes peeled on this one.