Commonwealth of Australia v Cappelleri

[2013] VCC 1266

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE Revised
(Not) Restricted

COMMERCIAL LIST
GENERAL CASES DIVISION

Case No. CI-11-03692

COMMONWEALTH OF AUSTRALIA	Plaintiff
v
FRANK CAPPELLERI	Defendant

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	10 September 2013
DATE OF JUDGMENT:	4 October 2013
CASE MAY BE CITED AS:	Commonwealth of Australia v Cappelleri
MEDIUM NEUTRAL CITATION:	[2013] VCC 1266

REASONS FOR JUDGMENT

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Catchwords:              Limitation of actions – Recovery of social security overpayments – Date when an officer became “aware of the circumstances that gave rise to the debt” – Whether in relation to action for the recovery of the debt, there was a “review of a file” or “other internal Departmental activity” – Section 1232 Social Security Act 1991 (Cth).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A. Di Pasquale	DLA Piper
For the Defendant	Mr F. Scully	Sabelberg Lawyers

HIS HONOUR:

1Frank Cappelleri was in receipt of social security benefits from 1991 to 2009. In 2009, the payments were discontinued because it was considered that the extent of Mr Cappelleri’s assets did not entitle him to receive the benefits.

2The Commonwealth of Australia has sued Mr Cappelleri for the amount of $138,281.73 which it alleges was overpaid between 4 October 1991 and 1 August 2005. Mr Cappelleri, by way of defence, has raised section 1232(2) of the Social Security Act 1991 (Cth) (“the Act”) alleging that the recovery of the benefits is statute barred.

3Section 1232(2) provides that:

“(2)      … legal proceedings for the recovery of debt are not to be commenced after the end of the period of 6 years starting on the first day on which an officer becomes aware, or could reasonably be expected to have become aware, of the circumstances that gave rise to the debt”.

4Section 23 of the Act defines “officer” as relevantly meaning “a person performing duties, or exercising powers or functions, under or in relation to the social security law”. The Commonwealth relies upon section 1236(6) which provides that:

“(6) If:

(a)subsection (2) applies so that action under this section for the recovery of a debt must be commenced within a particular period; and

(b)within that period:

…

(ii)a review of a file relating to action for the recovery of the        debt occurs; or

(iii)other internal Departmental activity relating to action for         the recovery of the debt occurs;

action under this section for the recovery of the debt may be commenced within the period of 6 years after the end of the activity or action referred to in paragraph (b)”.

5The questions for determination in the proceeding are:

a.On what date did an officer become aware, or could reasonably be expected to have become aware, of the circumstances that gave rise to the debt sought to be recovered in the proceeding?

b.If the date in paragraph (a) was more than six years before the writ was issued on 2 August 2011, prior to that date, did either:

i.a review of a file relating to action for the recovery of the debt occur; or

ii.other internal Departmental activity relating to action for the recovery of the debt occur?

c.If such action or activity did occur, upon what date did the action or activity end?

d.Is the plaintiff’s claim for recovery of the debt alleged to be owing by the defendant, or any part thereof, statute barred?

Officer’s awareness of the circumstances that gave rise to the debt

6The Commonwealth claims in the proceeding that since October 1991, Mr Cappelleri has been overpaid social security benefits. In June and July 1994, an officer of the Department of Human Services (“DHS”) received information that Mr Cappelleri and his wife were the only shareholders of a company Olado Pty Ltd (“Olado”) which was the owner of four properties in Footscray: at 8 Gordon Street, 27 Gordon Street, 94 Gordon Street and 482 Barkly Street.

7Mr Scully, of counsel, on behalf of Mr Cappelleri, contends that for the purposes of section 1232(2), an officer of the Department became aware, or could reasonably be expected to have become aware of the circumstances that entitled the Commonwealth to recover overpayments of social security benefits, no later than in November 1994 or, alternatively, November 2001 or January 2002. In November 1994, an officer of the Department had received anonymous information about the renting of the property at 94 Gordon Street, Footscray. In November 2001, an officer of the Department had received company searches concerning F&L Pty Ltd (“F&L”) and land data searches in relation to four properties in the Footscray area. In January 2002, Centrelink had comprehensive information about the property holdings of the companies and Mr Cappelleri, and the fact that substantial assets and income had not been declared.

8Counsel for the Commonwealth, Mr Di Pasquale, submitted that it was not until 1 March 2010, when the report of a complex assessment officer had been prepared, that a Departmental officer could have reasonably been expected to have the required knowledge of the circumstances of the debt in order for the limitation period to commence to run. Alternatively, the relevant date was 18 January 2002, when a Centrelink officer received complete information from ASIC about Mr Cappelleri’s shareholdings and directorships in Olado and F&L.

9The overpayments sought to be recovered in the proceeding were as follows:

Period	Benefit	Amount
4 October 1991 – 15 October 1992	Newstart allowance	$15,247.80
16 October 1992 – 4 May 1995	Newstart allowance	$30,241.89
8 November – 14 November 1995	Special Benefit (Disability Support Pension)	$310.50
15 November 1995 - 15 January 2002	Newstart allowance	$50,651.21
21 January 2002 – 3 February 2009	Newstart allowance	$87,478.93
27 April 2009	Newstart allowance	$115.00
Total Amount	$184,045.33

On 2 May 2013, judgment was entered for the sum of $45,763.60 upon the plaintiff’s summary judgment application in respect of the part of the debt to which the limitation defence could not apply.

10At regular intervals, Mr Cappelleri was required to complete an “Application for payment of Newstart Allowance”. Twenty-three applications between 18 March 1994 and 13 November 2007 were in evidence. Each was signed by Mr Cappelleri with a declaration by him that “the information I have given on this form is complete and correct”. In the first application, dated 18 March 1994, Mr Cappelleri answered “no” to the question, “Did any of the things listed below happen to you between 4 March 1994 and 17 March 1994?

…

·     you or your partner got any money from investments

·     there was a change in your investments

…

·     you or your partner’s assets changed …”

Similar answers were given in the other applications, including the last application on 13 November 2007.

As at November 1994

11In June 1994, DHS received a copy of the title to the property at 94 Gordon Street, Footscray, owned by Olado and mortgaged to a bank. In response to an enquiry by DHS, the Footscray City Council advised on 12 July 1994 that since July 1991 no properties were held by Mr Cappelleri or his wife in their names. However, four properties in Footscray were owned by Olado and Mr and Mrs Cappelleri were the only shareholders of the company.

12Mr Cappelleri was called into the social security office at Footscray for an interview.  He attended on 8 September 1994. Mr Cappelleri denied he had any involvement in Olado or F&L and said that the companies were now in the name of his mother, Rose Cappelleri. A compliance officer requested further information from Mr Cappelleri and his accountant about his involvement with the companies. A letter was sent to Mr Cappelleri on 21 September 1994. The letter sought further information, although it noted that Mr Cappelleri’s accountant “has confirmed that you have not been a director [of F&L or Olado] since 23 July 1993”. The letter noted that a person who was self-employed or involved in any business would usually not qualify for the benefit. Mr Cappelleri was requested to provide “full details of your involvement past and current in any business of company or similar”.

13On 22 November 1994, information was received by the department anonymously from a member of the public. A Public Information – Recording Sheet notes: “Rents out house, 27 Gordon Street…Receives $700 pcm rental income. Won’t issue lease/receipts. Advised tenants never to let DSS or inspectors enter property (5 boarders occupy property)”.

14On 24 November 1994, Mr Cappelleri completed an entitlement review.  He said that he was separated from his wife, they were both unemployed and there had been no change in his or his wife’s income details and assets.

15The plaintiff had also discovered in the proceeding an undated memorandum of Ms Shannahan. It was listed in the Affidavit of Documents between other documents dated 24 November 1994 and 26 July 1995, and therefore was likely to have been created between those dates. The memorandum records about Mr Cappelleri, “Frank builds houses and he owns them in Footscray and other places around Footscray; caller doesn’t know exactly where. He doesn’t tell Social Security”.

As at November 2001

16On 26 March 1997, Mr Cappelleri completed a form, “Real Estate Details”. The form recorded that he was the sole owner of 46 Kellaway Street, Maidstone, that the “mortgagor” (sic) was F&L and that the rental income was $160 per week and the monthly repayment (presumably to F&L as mortgagee) was $800. An electronic file note on 12 May 1997 recorded that the final mortgage payment on the property had been made in April 1996 and that Mr Cappelleri had volunteered that, “rental income never declared while on NSA” [Newstart allowance]. Handwritten notes on the file recorded a calculation of Mr Cappelleri’s financial position in accordance with Departmental guidelines showing a “net loss” and included the comment, “No overpayment as no income derived from property”.

17On 8 November 2001, a search of F&L disclosed that the directors were Mr Cappelleri’s wife and Arra Rose Cappelleri and the shareholders were Mr Cappelleri and his wife. A land data search on 21 November 2001 showed that F&L was the proprietor of four properties: 27 Gordon Street, Footscray; 48 Kellaway Street, Maribyrnong; 422 Barkley Street, Footscray, and the property with Certificate of Title Volume 4737 Folio 238. On 4 January 2002, Centrelink obtained a copy of the 1995 Annual Return of F&L which disclosed an operating loss of $224, total assets of $333,313 and current and non-current liabilities totalling $286,005.

18Two reports by Complex Assessment Officer, Mr Vince Lo Giusto, disclosed that the two companies had been deregistered – Olado on 11 October 2000, and Vincap Pty Ltd on 10 July 1999, and “no action was necessary” to ascertain the earlier effect upon Mr Cappelleri’s receipt of Centrelink payments.

As at January 2002

19On 7 January 2002, Centrelink received copies of tax returns for F&L for the years 1993 to 2000. The returns disclosed either operating losses or that no income tax was payable because losses in previous years had been carried forward to that year. A land data search that day disclosed that F&L was the proprietor of six properties – the four properties shown on the search on 22 November 2001 and two further properties at 8 Gordon Street, Maribyrnong and 27 Gordon Street, Footscray. It is likely that the property at 8 Gordon Street is also known as 8 Gordon Street, Footscray or North Footscray, and is the same property the City of Footscray said was owned by Olado in July 1994, although the actual owner then was F&L. A land data search that day also showed that a property at 46 Kellaway Street, Maribyrnong, was jointly owned by Mr Cappelleri and his wife.

20On 7 and 8 January 2002, Centrelink also obtained from the Australian Taxation Office copies of Mr Cappelleri’s tax returns for the years 1997 to 2000.  They revealed the following:

Year	Total Income	Income from Benefits	Income from other sources	Income from Net Rental	Wife’s Income
2000	$10,602	$7,686	Nil	$2,916	$13,533
1999	$10,466	$7,591	Nil	$2,875	$9,738
1998	$12,422	$7,688	Nil	$4,734	$9,254
1997	$11,875	$7,937	Nil	$3,938	Not stated
1996	$5,166	Not stated	Nil	Not stated	Not stated
1995	$8,677	$6,685	$265	$1,727	Not stated

21On 18 January 2002, Centrelink received from ASIC returns which disclosed the following information:

a.the 1995 annual return for Olado showed a net operating loss of $63 and liabilities exceeding assets;

c.Mr Cappelleri and his wife had been the sole directors and shareholders, of Vincap Pty Ltd at the time it was deregistered in July 1999;

d.Mr Cappelleri and his wife had been the sole shareholders, and Mrs Cappelleri one of the directors, of Olado at the time it was deregistered in October 2000.

A land data search received that day showed that F&L was the proprietor of a property at Saltau Street, Keilor East.

22The Centrelink file contains a number of handwritten notes by unknown authors that are located in the file between other documents dated January 2002. The notes appear to analyse and tabulate the information that was provided to Centrelink at about that time. These documents included the following information:

a.“rental income” between 1995 and 2000 had been extracted from Mr Cappelleri’s income tax returns;

b.notes from taxation records about the income of F&L, apparently for the year ending 2000, showing gross rental income of $41,827, other income of $20,640 and total profit of $21,544. The notes include the comment, “definitely doing something else through the company”;

c.a sheet noting the details for F&L for 1999/2000 and that, for the year 1998/1999, the gross income was $18,725 and the gross rent was $40,755;

d.an analysis of a number of properties owned by Mr Cappelleri and his wife, Mrs Cappelleri, solely or by F&L as follows:

Property	Owner	Mortgagee
97 Ballarat Road, Footscray	F&L	Bank of Melbourne
422 Barkly Street, Footscray	F&L	St George Bank
8 Gordon Street, Footscray	F&L	Challenge Bank
27 Gordon Street, Footscray	F&L	St George Bank
15 Saltau Street, Keilor East	F&L	No mortgagee
48 Kellaway Street, Maribyrnong	F&L	No mortgagee
46 Kellaway Street, Maribyrnong	Mr and Mrs Cappelleri	F&L
73 Ballarat Road, Maidstone	Mrs Cappelleri	ANZ Bank

e.two sheets summarised the information and attempted to determine the financial consequences for Mr Cappelleri. However, no conclusion is stated other than the comment noted earlier, “definitely doing something else through the company”;

f.a three page handwritten summary by a departmental officer, Ms Jeni Shannahan, setting out the history of Mr Cappelleri’s dealings with the Department since he lodged a claim and started receiving payments in October 1991.

23The summary prepared by Ms Shannahan concluded as follows:

“It would appear that Frank Cappelleri has made a false claim as he was employed or running businesses (F&L Pty Ltd) and was a shareholder in Olado Pty Ltd at the time of claim. His wife was director of Olado Pty Ltd at the time of claim.

It would appear that the companies maintain substantial assets and income has been coming in but has not been declared.

Follow up required:

i.     to tax liaison (Peter Tasmarkis) documentation for the two companies;

ii.     obtain tax return details of companies and Frank”.

24It is likely that Ms Shannahan followed up the matter of Mr Cappelleri’s interest in the companies with a facsimile to Mr Tasmarkis, which is also on the file, and that the information in response was received on 18 January 2012. I consider, therefore, that after the receipt and an opportunity for proper consideration and analysis of the information, at some time after 18 January 2002 a Departmental officer would have been aware of the circumstances giving rise to the debts claimed in this proceeding, namely that Mr Cappelleri was not entitled to obtain the benefit of the payments he had received. He was not entitled to the benefit of the payments because, at the relevant times, he had been regularly submitting payment applications in which he declared that he was unemployed and was not receiving money from investments or another source, and that any investments or assets of himself or his partner were unchanged. 

25The information received by the Department in January 2002 was, after analysis, sufficient to confirm the suspicion stated by Ms Shannahan in her undated, handwritten memorandum. The information was comprehensive and was gathered from personal tax returns, records about the shareholdings, directorships and the financial position of the companies, property ownership data for the Cappelleri’s and the companies, and the information supplied by Mr Cappelleri from time to time about his financial position. I consider, however, that before 18 January 2002, the departmental officers did not have the necessary information from which they either had, or might reasonably have been expected to have had, knowledge that Mr Cappelleri had not been entitled to be paid the benefits he received. 

26Prior to November 1994, the Department had obtained information about properties owned by a company in which Mr Cappelleri was a shareholder. Enquiries were initiated, Mr Cappelleri was interviewed, and information was provided by accountants about the benefits Mr and Mrs Cappelleri received from the companies. Mr Cappelleri’s accountant’s response is only recorded in a letter to Mr Cappelleri dated 21 September 1994 advising that the accountant had provided the information that Mr Cappelleri had ceased to be a director of Olado in 1993. A letter from Mrs Cappelleri’s “taxation and management consultant” dated 9 June 1994 certified that Mrs Cappelleri was a director of Olado and F&L but “she does not receive any income from those companies”.  The letter was filed with the undated memorandum of Ms Shannahan and other documents dated January 2002.

27It is likely that some time between November 1994 and July 1995, Ms Shannahan wrote a memorandum recording that Mr Cappelleri built and owned houses in Footscray and elsewhere, of which he did not inform the department. However, I do not consider that at that stage Ms Shannahan had a sufficient understanding of Mr Cappelleri’s financial position, so that it could be said she had become aware or could reasonably have become aware that Mr Cappelleri was not entitled to receive his social security payments.

28In my view, the evidence only supports a conclusion that “the first day on which an officer” was aware of the relevant matters set out in section 1232(2) was a date no earlier than the date upon which a proper assessment could have been made of the documents received between about 7 and 18 January 2002. I consider that the first such date would not be earlier than 1 March 2002. 

29The section required awareness of “the circumstances that gave rise to the debt”. This required more than mere suspicion and a Departmental officer would have needed to know (or would reasonably have been expected to know) that the asset or income of Mr Cappelleri disentitled him to receive the social security benefits. If comprehensive information was only available by 18 January 2002, the interpretation of the information sufficient to conclude that overpayments had been made, would take a further period of time.

Later “review” or “activity”?

30Ordinarily by the operation of section 1232(2) a proceeding for the recovery of the overpayments between 1991 and January or February 2002 would have been statute-barred unless commenced within six years, that is, before 1 March 2009. The issue which arises in this proceeding is whether this limitation period applies, or whether, since 1 March 2002, there had been a relevant “review of a file” or “other internal Departmental activity, as provided for in ss(6)”. If there has been such a review or activity, the limitation period of six years only begins to run “after the end of the activity or action”. It is relevant, therefore, to examine whether after 1 March 2002 there was any such relevant “activity or action”. Whereas Mr Cappelleri had the onus of proof in respect of the requirements of section 1232(2), the Commonwealth would need to satisfy the Court that the requirements of sub-section (6) have been met. 

31It is necessary to examine how the statute will operate in relation to the circumstances of the debts sought to be recovered in the present proceeding (which had not been the subject of a judgment entered upon the summary judgment application). Sub-section (6) only applies if two conditions are satisfied: first, that the debt would otherwise be statute-barred by sub-section (2), and, secondly, that a relevant event happened within “a particular period”. That period is “six years starting on the first day” of awareness or deemed awareness under sub-section (2) “of the circumstances that gave rise to the debt”. The debt, under section 1223(1) “is taken to arise when the person obtains the benefit of the payment” to which the person “was not entitled”.  Accordingly, a separate cause of action will arise in respect of each payment and the start of the relevant “awareness” of the “circumstances that gave rise to the debt” must relate to the time of payment. Therefore, the starting date for the period of six years, after which proceedings may be commenced, will vary according to the date of the debt which is sought to be recovered. 

32Sub-section (6) refers to three “events” which would effectively “reset” the start date for the period of six years during which an action may be commenced for the recovery for the debt. Each of the events must relate to “the recovery of the debt” and paragraphs (ii) and (iii), which are relied on by the Commonwealth, must involve the occurrence of an event “relating to action for the recovery of the debt”.  Rather confusingly, the sub-section specifies: “The end of the activity or action” (that is, “a review of a file relating to action for the recovery of the debt” under paragraph (ii) or “other internal Departmental activity relating to action for the recovery of the debt”), as the starting date for the six year period during which “action under this section [section 1232] for the recovery of the debt may be commenced” (emphasis has been added for each instance the word “action” has been quoted).

33In sub-section (6), the word “action” is used in three different senses:

a.as the first word in sub-section (6)(b)(i) and the word in the phrase, “activity or action” in the last line of sub-section (6), it has the meaning of the “thing done”;

b.as part of the phrase, “action for the recovery of the debt”, the meaning is less clear. What is obvious is that it does not mean a “legal process”. I shall discuss the phrase further below;

c.as the first word in the concluding words of the sub-section, after paragraph (iii), action clearly means a “legal process”. 

34The second sense in which “action” is used in the sub-section has some importance as it qualifies the nature of the file review in paragraph (ii) and the other Departmental activity in paragraph (iii), by specifying that these occurrences must relate to “action” for the recovery of the debt.

35Mr Scully, defendant’s counsel, submitted that some assistance in the interpretation of paragraphs (ii) and (iii) might be derived by looking at paragraph (i), as the type of occurrence required to satisfy paragraphs (ii) or (iii) is likely to be similar to the occurrence specified in paragraph (i). The activating event under paragraph (i) is either something done under section 1231 (deductions) or under section 1233 (garnishee notice). These are three of the five “methods of recovery of debt” set out in section 1230C. The other two are an arrangement for repayment instalments under section 1234 and legal proceedings. By section 1230C, the two recovery methods of legal proceedings and garnishee notice can only be employed if the Commonwealth has “first sought to recover the debt” by either deductions or an arrangement to repay by instalments and the debtor has “failed to enter into a reasonable arrangement to repay the debt” or has defaulted in making “a particular payment” under an instalment arrangement.

36The provisions in the Act for “deductions” (section 1231) and for a “garnishee notice” (section 1233) are extensive. A deduction may be made from the debtor’s social security payment or, if section 1234A applies, the deduction may be made from another person’s social security payments. There are statutory protections for the debtor, including limitation provisions that mirror those in section 1232. Similar protections are contained in the statutory provisions relating to the use of garnishee notice procedures. In the circumstances, I consider that the words “action for the recovery of the debt” in paragraphs (ii) and (iii) must be given a meaning which is:

a.consistent with the limiting of the methods of recovery of the debt to the five methods specified in section 1230C(1);

b.which is broader than doing something directly in pursuance of one of those methods of recovery, as the methods set out in section 1230C(1)(a) and (b) (deductions), and (e) (garnishee notice), are specifically mentioned in section 1232(6)(b)(i) and legal proceedings, the method specified in section 1230C(1)(d), cannot be what is contemplated in sections 1232(6)(b)(ii) and (iii). 

37Therefore, if after the limitation period has commenced to run in respect of a debt, the start of the limitation can only be reset for a particular debt if there is a subsequent “review of a file” or “other internal Departmental activity” which can be appropriately described as an occurrence “relating to action for the recovery of the debt”. Such an occurrence must have some relationship to the recovery methods set out in section 1230C.

Events after 1 March 2002

38Centrelink received a “tip off” from an anonymous member of the public on 4 October 2007. In her affidavit sworn 18 February 2013, Wendy Bruce, an employee of the Department of Human Services within the Business Integrity Division, stated that, “On 5 October 2007, Centrelink received a “tip off” from an anonymous member of the public about the extent of the Defendant’s assets”. Following the “tip off”, between 5 October 2009 and 19 April 2009, Ms Bruce “undertook enquiries to verify the information produced by the Defendant in his various applications for a Social Security Benefit”. Those enquiries “included obtaining property and company searches”.

39The tipoff was “loaded and registered on 8 October 2007” and “investigation of the tipoff started on 8 January 2008” when “the investigation was allocated to the Fraud Investigation team of DHS”. In March 2009, a further search was made of F&L. In April 2009, a title search was obtained for the property at 8 Gordon Street, Footscray. In May 2009, valuation reports were obtained from the Australian Valuation Office in relation to the properties at 46 Kellaway Street, Maribyrnong (valued at $470,000); 8 Gordon Street, Footscray (valued at $350,000); and 482 Barkly Street, Footscray (valued at $420,000).

40On about 27 April 2009, a notice of debt was issued to Mr Cappelleri in the amount of $115. The notice stated that, “This is the balance of your advance. As your Social Security payments have stopped, this amount is now payable”. Under “Benefit Type” on the notice are the words “Newstart Allowance”. 

41On 1 March 2010, a Centrelink Complex Assessment Officer prepared a report which assessed the net assets of F&L, at the date Mr Cappelleri and his wife transferred their shares to Vincenzo Nicola Cappelleri, at “$1,388,600”. Based on that report, and an assessment made of Mr Cappelleri’s interest in two other properties, determinations were made which led to Mr Cappelleri being served with a number of notices of debt on 16 April 2010. On 25 August 2010, he was sent a letter of demand that he pay a debt of $184,045.33 to the Commonwealth in respect to the overpayments.

Conclusions

42In these circumstances, I consider that:

a.the start of the investigation of the tipoff on 8 January 2008 constituted both a review of Mr Cappelleri’s file and “other internal Departmental activity”;

b.the review or activity related to action for the recovery of the debt owed by Mr Cappelleri;

c.the debt arose from the benefit of the payments Mr Cappelleri had obtained since 4 October 1991 to which he was not entitled;

d.an officer of the department had first become aware of the circumstances that gave rise to the debt no earlier than about 1 March 2002;

e.the investigation had started “within the period” of six years after the date upon which the limitation period had commenced to run pursuant to s1232(2).

43Accordingly, the Commonwealth has satisfied the requirements of section 1232(6) and the limitation period for the recovery of the debt, for overpayments dating back to 1991, was able to be commenced within the period of six years after the completion of the investigation. That occurred with either the completion of the Complex Assessment Officer’s report on 1 March 2010, or the service of the notices of debt on 16 April 2010. The present proceeding was commenced on 2 August 2011.

44The defence based upon the debt being statute-barred must fail. The plaintiff is entitled to recover the balance of the debt in respect of the overpayments. I will hear further from the parties as to the form of the judgment and on the questions of interest and costs.

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CERTIFICATE

I certify that these 15 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 4 October 2013.

Dated: 4 October 2013

Catherine Kusiak

Associate to His Honour Judge Anderson