Klironomos v Insurance Australia Limited t/as NRMA Insurance

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
CITATION:	Klironomos v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMR 17
CLAIMANT:	Peter Klironomos
INSURER:	Insurance Australia Limited t/as NRMA Insurance
MERIT REVIEWER:	Brett Williams
DATE OF DECISION:	28 May 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; merit review matter; dispute about pre-accident weekly earnings (PAWE); insurer determined PAWE as nil; business operated by a company as trustee for trust; claimant issued invoices to company; concession that no evidence monies were paid in any form directly to the claimant or that he received earnings for the work he performed; claimant argued he constructively received earnings; Patton v Allianz Australia Insurance Limited (No 1), Gorrie v Allianz Australia Insurance Limited, Singh v Insurance Australia Limited t/as NRMA Insurance, Pal v Insurance Australia Limited t/as NRMA Insurance, and Liu v QBE Insurance (Australia) Limited followed; Held – claimant’s PAWE determined by reference to the gross earnings he received and not the earnings of the company; clause 4(1) Schedule 1 is concerned with actual earnings received not constructively received; claimant did not actually receive any earnings during the relevant period; PAWE assessed as nil; decision under review affirmed; orders made for payment of claimant and insurer’s costs.
DETERMINATIONS MADE:	CERTIFICATE 1. The reviewable decision dated 23 December 2024 is affirmed. 2. Payment of the reasonable and necessary legal costs incurred by the claimant in connection with the proceedings is permitted under s 8.10(4)(b) of the Motor Accident Injuries Act 2017. 3. Payment of the insurer’s reasonable legal costs for legal services provided to it in connection with the proceedings is permitted under s 8.3(4) of the Motor Accident Injuries Act 2017.

STATEMENT OF REASONS

BACKGROUND

Peter Klironomos (claimant) was injured in a motor vehicle accident on 2 August 2024 (accident). He subsequently made a claim for statutory benefits under Part 3 of the Motor Accident Injuries Act 2017 (MAI Act) on Insurance Australia Limited t/as NRMA Insurance (insurer). Liability for the claim has been admitted.
These proceedings were commenced by the claimant and involve a dispute about his pre-accident weekly earnings (PAWE). PAWE are used to determine the amount of weekly payments during the first and second entitlement periods: s 3.6 and s 3.7 MAI Act.
The dispute arose after the insurer determined on 23 December 2024 that the claimant’s PAWE were nil; a decision that was subsequently affirmed by an internal reviewer. The insurer’s decision of 23 December 2024 is the decision under review. The dispute is a merit review matter: Sch 2 cl1(a) MAI Act.

STATUTORY FRAMEWORK

During the first entitlement period weekly payments of statutory benefits are payable in accordance with s 3.6. That provision states, relevantly, as follows:
“3.6 Weekly payments during first entitlement period (first 13 weeks after motor accident)
(1)     An earner who is injured as a result of a motor accident and suffers a total or partial loss of earnings as a result of the injury is entitled to weekly payments of statutory benefits under this section during the first entitlement period.
Note—
Only a person who was an earner when injured is entitled to statutory benefits under this section—see Schedule 1.
(2)     A weekly payment of statutory benefits under this section is to be at the rate of 95% of the difference between the person’s pre-accident weekly earnings and the person’s post-accident earning capacity (if any) or post-accident earnings, whichever is the greater, for the first entitlement period.
(3)     …
(4)     …
(5)     …”
Similarly, s 3.7 uses PAWE to ascertain the amount of payments during the second entitlement period.
PAWE is defined, relevantly, in Sch 1 cl 4 as follows:
“4 Meaning of ‘pre-accident weekly earnings’—general
(1) Pre-accident weekly earnings, in relation to an earner who is injured as a result of a motor accident, means the weekly average of the gross earnings received by the earner as an earner during the 12 months immediately before the day on which the motor accident occurred, unless subclause (2) applies.
(2) …
(2A) …
(3)…
(4) …”
The term “loss of earnings” is defined in Sch 1 cl 3 as follows:
“3      Meaning of ‘loss of earnings’
(1)     Loss of earnings means a loss incurred or likely to be incurred in a person’s income from personal exertion.
(2)     A person’s income from personal exertion is—
(a) the amount that is the income of the person consisting of earnings, salaries, wages, commissions, fees, bonuses, pensions, retiring allowances and retiring gratuities, allowances and gratuities received in the capacity of employee or in relation to any services rendered, and
(b) the proceeds of any business carried on by the person either alone or in partnership with any other person, and
(c) any amount received as bounty or subsidy in carrying on a business.
(3)     A person’s income from personal exertion does not include—
(a) interest, unless the person’s principal business consists of the lending of money, or unless the interest is received in respect of a debt due to the person for goods supplied or services rendered by the person in the course of the person’s business, or
(b) rents or dividends, or
(c) any employer superannuation contributions, or
(d) the monetary amount of any annual, sick or other leave entitlement.”

PRELIMINARY CONFERENCES

The proceedings were the subject of two preliminary conferences. At the preliminary conference on 21 February 2025 the parties sought an opportunity to obtain further evidence, make further written submissions, and explore whether the dispute could be resolved. Directions were made for the filing of further evidence and submissions by the parties. The insurer’s application to lodge additional documents dated 12 February 2025 was declined.
At the preliminary conference listed on 2 April 2025 the insurer confirmed that its case was that for the purposes of Sch 1 cl 4(1) of the MAI Act the gross earnings received by the claimant as an earner during the 12 months immediately before the day on which the accident occurred were nil, and that it disputed the claimant received any earnings during this period. The claimant sought and was given an opportunity to provide further evidence to address these matters. Further directions were made and the proceedings listed for hearing on 22 May 2025.

HEARING

The parties were unable to resolve the dispute and the matter proceeded to hearing. Mr Ghabar, of counsel, appeared for the claimant. Mr Boyd appeared for the insurer. No witnesses were required for questioning and no oral evidence was called.
The parties confirmed that the dispute requiring determination was the claimant’s PAWE. That dispute in turn boiled down to a dispute about whether the claimant, as an earner, received earnings during the relevant period.
The parties agreed that:
(a)    the claimant was injured as a result of the accident;
(b)    s 3.1 is engaged;
(c)    at the time of the accident the claimant was working as a concrete truck driver;
(d)    for the purposes of s 3.6(1), the claimant is an “earner”;
(e)    the claimant’s PAWE is to be determined in accordance with Sch 1 cl4(1), and
(f)    for the purposes of Sch 1 cl 4(1) the 12 months immediately before the day on which the accident occurred is 2 August 2023-1 August 2024 (relevant period).
The parties confirmed that the following further matters were not in dispute:
(a)    during the relevant period the claimant was the sole director, secretary and shareholder of Peak Empire Pty Limited (Peak);
(b)    during the relevant period Peak contracted with Metromix Pty Limited (Metromix) to provide a concrete truck;
(c)    other than when he was sick, the claimant drove the concrete agitator truck and made deliveries of concrete as required by the contract between Peak and Metromix;
(d)    Peak acted as trustee of the Peak Empire Trust (Trust);
(e)    the claimant issued invoices to the Trust for the work he performed, and
(f)    Metromix paid Peak for the performance of the contract.
During the course of submissions, it was raised with the parties that the term “earnings” as used in Sch 1 cl 4(1) is not defined in the MAI Act, and that in Allianz Insurance Australia Limited v Shahmiri [2022] NSWSC 481 (Shahmiri), Harrison AsJ determined that the meaning of the term “earnings” in Sch 1 cl 4(1) could not be derived from the definition of “loss of earnings” contained in Sch 1 cl 3 of the MAI Act: Shahmiri at
[64]-[66]. Among the reasons given for this was that “loss of earnings” and “earnings” are not the same: Shahmiri at [65].
The parties were taken to Iskandar v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMR 11 where the meaning of “earnings” was addressed at [58]-[64], and it was found that “earnings”, as that term is used in Sch 1 cl 4(1), means income gained in return for labour or services provided by an earner. The parties agreed that the same meaning should be adopted in these proceedings.
Mr Ghabar, of counsel, confirmed that there was no evidence before the Commission that monies were paid in any form directly to the claimant, or that he received earnings for the work he performed. Instead, he argued that the gross earnings “received” by the claimant as an earner should include earnings he “constructively received”. Mr Ghabar was not able to identify any authority or provision that supported this submission.
His fallback position was that Peak’s profit during the relevant period represented the gross earnings of the claimant for the purposes of Sch 1 cl 4(1).
With respect to the claimant’s primary case, the insurer argued that “earnings received” in Sch 1 cl 4(1) does not include “earnings constructively received”, that there is no evidence the claimant received any earnings as an earner during the relevant period, and the claimant’s PAWE is $0.
As to the claimant’s secondary submission, the insurer submitted that Peak is a separate and distinct legal entity and that its profits are not the claimant’s earnings.

EVIDENCE

The evidence relied on by the parties is contained in a joint bundle filed by the insurer on 13 May 2025. All the material in the bundle that was referred to by the parties in submissions has been considered: see rule 67D Personal Injury Commission Rules.
Neither the contract between Metromix and Peak, the trust deed, nor documents confirming ownership of the truck are in evidence. It was not disputed that the truck driven by the claimant was owned by Peak.
The claimant has provided two statements. In his first statement dated 15 January 2025 the claimant stated that:
“At the time of my accident, I was not employed. I had however previously, operated a business. I was the sole director, secretary and shareholder of the Peak Empire Pty Ltd. The Peak Empire Pty Ltd as trustee of the Peak Empire Trust, operated a business where it owned a concrete truck and would subcontract to Metromix Pty Ltd. In order to engage in that subcontracting work, I needed to trade and operate through a company and have various insurances including workers' compensation.”
He states that during the course of that “employment”, he drove the concrete truck and derived income. The claimant stated that the Trust distributed any profits and earnings to him “personally” during the course of the financial years ending 30 June 2023 and 30 June 2024. He stated that that income was income he had derived "off [his] own back” and asserted that it was personal services income from his own “personal exertions”.
The claimant went on to state that:
“[6] If there were days where I was unable to attend work, I would organise and pay a driver to work. During the course of the financial years ending 30 June 2023 and 30 June 2024, those earnings totalled the sum of $3,470.00 and would have represented approximately two weeks of work over the entire period I operated the business where I was sick or unable to attend work and where a driver drove the truck.
[7] Other than those few days where I paid a driver, if I was unable to drive the truck, the truck did not work and did not derive any taxable income. I was the heart and soul of the business…:”
The claimant stated that the net proceeds of the business were distributed to him and “set out in [his] personal tax returns for the financial years ending 30 June 2023 and 30 June 2024.” He went on to state:
“[8] … Whilst I may have received income sporadically during the course of the 2023 and 2024 financial years, the amount of money that I received, would always be reconciled at the end of the year and would end up in my tax return. The net proceeds of the business were distributed to me and that includes the income of the business less all the expenses of the business. The business was not running at a loss. The business made enough income to pay me income/wages for my personal exertions.”
In his subsequent statement dated 20 February 2025 the claimant stated as follows:
“[2]    At the time I signed my statement [dated 15 January 2025] I understood that my earnings came from The Peak Empire Trust distributing my profits and earnings to me personally during the course of the financial years ending 30 June 2023 and 30 June 2024. I now understand that from an accounting analysis this is not what occurred.
[3]     What actually occurred is that using my own ABN, I issued invoices to the Peak Empire Trust and then I arranged for the Peak Empire Trust to pay those invoices. Those invoices represented my personal exertions for my work performed.
[4]     That income that was paid to me, was essentially income which I had derived ‘off my own back.’ It was personal services income from my own personal exertions.”
The claimant stated that the income shown in his income tax return is income that was paid to him, having issued invoices to the Peak Empire Trust. He then “caused the Peak Empire Trust to pay those invoices” and those payments are his personal income. He stated that:
“Some of the funds were paid directly to me. Some of the funds were paid to third parties. I made those payments and those payments still form part of and still comprise my own personal Income which is reflected in my income tax return. The payments were made for my own use and benefit.”
At [10] the claimant stated:
“…the funds paid to me were not ‘trust distributions of profit’ from the trust but rather a payment of profit to me that invoiced the trust using my own ABN…”
Invoices issued by the claimant are in evidence. The invoices cover the period April 2023 to July 2024. Each monthly invoice is for a different amount. The invoices are sequentially numbered and addressed to the Trust.
The claimant relies on a statement from Tom Kouloukakis dated 17 April 2025. Mr Kouloukakis states that “over the years” he has undertaken accounting work for the claimant and the Trust. He understood that the claimant would “drive the truck”, Metromix would issue recipient created tax invoices to the Trust, and deposits into the Trust bank account for the work performed by the claimant. He states:
“When preparing the 2023 and 2024 financial year financial statements and tax returns for the [T]rust and for Peter personally, I took instructions from Peter and my staff and I carefully reviewed the [T]rust bank statements. The bank account is in the name of the trustee, Peak. Peak was at all times registered on a cash or ordinary receipts basis. Peter as an individual could only ever be registered on a cash or ordinary receipts basis…”
Mr Kouloukakis stated that a review of the bank account statements, business records and a reconciliation of the recipient created tax invoices for the period 2 August 2023 to 1 August 2024 resulted in the preparation of the general ledger report annexed to his statement. The analysis recorded in the profit and loss report and the general ledger report records the funds that were received into the Trust bank account and the funds were “spent” or transferred out of the bank account on a cash basis. He states that the financial material confirmed that the Trust paid either the claimant or third parties for his “use and benefit” the sum of approximately $73,500. That sum, he states, represented income to the claimant. I have considered the matters explained at [12] in the statement.
At [13] Mr Kouloukakis states:
“The sum of $73,639.48 using code 826 in the general ledger is the amount of money that was paid out of the trust bank account and which reflects [the claimant’s] personal income…”
At [14] Mr Kouloukakis explains why the sum of $73,639.48 does not reconcile precisely with the sum of $73,500 recorded as sub-contractor expenses. He states that he reconciled the sum of $73,639.48 as being funds that were paid out of the Trust for the claimant’s “use and benefit and which were either actually or constructively received by him”.
The insurer relies on a report of Mr Croft, an accountant, dated 18 December 2024. Among other matters, Mr Croft expressed the opinion that the claimant’s purported subcontractor income of $73,500 is the result of accounting journal entries that did not result in a cash payment to him; that is, the claimant did not actually receive any payments from the Trust in line with his invoices.
There are over 300 pages of financial records. Those records, to the extent they were referred to in submissions have been considered. There is also medical material in the joint bundle. That material has not been considered; it is not relevant to the PAWE dispute and was not referred to by the parties in their submissions.

SUBMISSIONS

Claimant’s submissions

The claimant relies on written submissions dated 17 April 2025. The submissions describe the business structure involving Peak, the Trust, and the claimant. In short, the Trust by its corporate trustee, Peak, traded and operated the concrete truck. The claimant’s personal exertion driving the truck resulted in the trust deriving income. The claimant submits that but for his personal exertion driving the truck the Trust would not have derived any income.
The assertion in the submissions that only the claimant drove the truck is not quite correct; the claimant’s statement dated 15 January 2025 records at [6] that during the course of the financial years ending 20 June 2023 and 30 June 2024 if there were days he was unable to attend work (due to illness or otherwise) he would organise and pay a driver to drive the truck.
The claimant’s submissions record at [18] that funds were transferred from the Trust bank account to various third parties and that no other person or third party had control over the trust funds. He submits that he “received” those funds; as the controlling mind of the trust, he chose where to direct them. The claimant argues that he had the discretion as to the control of those funds and what he used the funds for. In the claimant’s submission, he derived and received the actual and constructive use and benefit of all those funds.
The claimant relies on Zou v QBE Insurance (Australia) Limited [2024] NSWPICMR4 and argues that “as the owner of the business” his PAWE should be based on the proceeds of the business, calculated by reference to the revenue of the business less all the expenses of the business.
The submissions record that profits of the business were not paid to the claimant by way of a dividend or a trust distribution. Rather, using his own Australian Business Number (ABN), the claimant issued invoices to the Trust and the Trust then paid those invoices to the claimant.
There is, however, no evidence before me that the Trust made payments to the claimant. The claimant’s case at hearing was that payments were made to third parties at his direction. His submission at [25] in part reflects this. The claimant submits that all the payments made by the Trust were made for his use and benefit and represent “either actual or constructive payments to him”. He also notes that the payments “show” in his income tax returns and submits the sum of $73,500 recorded in his 2024 return is representative of the proceeds of the business.

The claimant submits that income paid to him, or for his use and benefit, was paid against invoices he issued utilising his ABN.
The claimant argues that payments he received constitute personal exertion income, whether they were paid to him directly or whether they were paid to third parties. He submits that the payments to third parties were not business expenses but rather payments directed by him for his benefit at his discretion.
In the claimant’s submission the earnings paid to him for invoices issued to the Trust represent personal income derived and received by him and result of his personal exertion. On that basis, his PAWE should be assessed in accordance with his
2023 and 2024 income tax returns.
As to the issue of whether he received earnings, the claimant argues:
(a)    No other person had any legal entitlement to the funds derived by the business.
(b)    Income is considered "derived" or “received” for tax purposes even if it has not been physically received by the person: s 6-5(2) and (3) of the Income Tax Assessment Act 1997 (Cth) (Tax Act).
(c)    An individual under the Australian tax law is deemed to have received or derived income on a cash basis or receipts basis method. This means that income is received or derived when it is actually or constructively received. Constructively received means the income was made available to a taxpayer but not physically received by him.
(d)    The general ledger report sets out the nature of the payments made for his constructive benefit. Those payments are income and earnings received by him.
The claimant referred to Pal v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMR 57 (Pal) and distinguishes the facts in that case from those in his case. He also refers to s 6.5 of the Tax Act. In the claimant’s submission his 2024 income tax return demonstrated gross earnings of $73,315.00, those earnings equate to PAWE of $1,499.90, and his entitlements should be determined on that basis.
In oral submissions Mr Ghabar emphasised the following matters:
(a)    whether the invoices issued by the claimant were actually paid to him or paid at his direction the funds were received by him;
(b)    the claimant can be considered to have received earnings for the purposes of Sch 1 cl 4(1) if he constructively received those earnings by way of disbursing the equivalent of the funds he invoiced for to third parties, including for home loans;
(c)    the general ledger shows the payments that were made to third parties at the direction of the claimant, and this constitutes constructive receipt by the claimant;
(d)    the claimant does not have to “physically” receive the payments for them to be considered earnings;
(e)    interpretation of Sch 1 cl 4(1) should be approached on a beneficial basis;
(f)    payments made by the Trust to the claimant were in the nature of profit distribution and that is a form of personal exertion income;
(g)    everything under payment code 826 in the profit and loss statement is a payment directed by the claimant and represents what otherwise would have been payments made directly to him;
(h)    the invoices issued by the claimant and his individual tax return show what his earnings were;
(i)    Tax Act provisions are capable of informing the determination of the claimant’s PAWE, and
(j)    the “business” was carried on by the claimant because he was the controlling mind of Peak.
The claimant sought an order under s 8.10(4)(b). He submitted that, given the matters in dispute and the legal work involved, exceptional circumstances exist that justify payment of reasonable and necessary legal costs incurred by him in connection with the proceedings.

Insurer’s submissions

The insurer relies on written submissions dated 5 May 2025 wherein it:
(a)    disputes that the net proceeds of the business were distributed to the claimant, and submits that despite the claimant being an earner, his PAWE is nil because he did not receive any earnings from exertion in the pre-accident period;
(b)    argues the Trust’s Financial Year (FY) 2024 tax return shows that Peak made no distributions in FY2024. That being the case, reference by the claimant to a distribution of earnings (being the proceeds of the business) is inaccurate;
(c)    argues the Trust’s FY2024 financial statements show that it had accumulated losses of $92,014 as at 30 June 2024. That is, Peak, as the trustee did not, and could not, make any distributions of earnings to the claimant because there were no proceeds to distribute;
(d)    submits that while the claimant’s FY2024 individual tax return shows supplement income of $73,500, being the subcontractor “wages” that were recognised by an accounting journal entry on 30 June 2024, the claimant did not receive any payments from the Trust or Peak in the relevant period, and
(e)    argues that cls 3(2)(a) and 4(1) of Sch 1 of the MAI Act establish that the earnings must be received by the claimant in order to form part of his earnings from personal exertion for the purpose of calculating PAWE.
The insurer submits its position is consistent with Singh v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMR 39. The insurer also relies on Zou v QBE Insurance (Australia) Limited [2024] NSWPICMR 4 and Pal.
At [6] the insurer refers to and explicitly relies on the report of Mr Croft dated 18 December 2024.
The insurer argues that regardless of whether the Trust generated income via the claimant’s personal exertion, it remains that it is not his “earnings” for the purpose of the PAWE calculation unless and until the proceeds of the business are distributed to him and received by him.
In the insurer’s submission Mr Croft’s report establishes that no income has been distributed to the claimant by the Trust in the pre-accident period, and the claimant did not actually receive any payments from the Trust in line with his invoices and the income declared in his tax returns which were filed after the accident.
The insurer argues that whether or not the subcontractor income represents a repayment of loan advances by the Trust, the amount listed as subcontractor income in the tax returns was not received by the claimant and is therefore not his earnings from personal exertion for the purpose of determining his PAWE.
The insurer argues that the dispute is not whether the claimant “generated income”, but whether the claimant, as a separate legal entity to the Trust, received earnings in the pre-accident period.
The insurer disputes that the claimant received income via the invoices issued from his ABN to the Trust. The insurer argues that whether or not the claimant’s method of issuing invoices utilising his own personal ABN to the Trust for his personal exertion is an “accepted commercial method” is irrelevant to the dispute. The Trust is a separate legal entity to the claimant. In the insurer’s submission it cannot be asserted that the claimant “received” income via the Trust on the available evidence. He receives earnings in his personal capacity to the extent the Company/Trust makes payments to him, or he receives a distribution of Trust income. In the insurer’s submission neither has occurred in the relevant period.
The insurer submits that all references to the Tax Act are irrelevant to the dispute and that “income” for tax assessment purposes is not the same as “receipt of earnings” for the purpose of calculating PAWE under the MAI Act.

The insurer argues that the statement of Mr Kouloukakis does not address the core issue in dispute. In its submission, whether or not there are funds which make up the claimant’s personal income “in accordance with Australian tax law” is not the same question as whether he received earnings in the pre-accident period within the meaning of the MAI Act.
The insurer also argues that the general ledger report cannot be relied upon because it is not a contemporaneous document, and a significant amount of the debits under code 826 are cash withdrawals without further details listed.
In oral submissions the insurer emphasised that:
(a)    earnings generated by a company are not the same as earnings received by a claimant;
(b)    Peak’s earnings were not the claimant’s earnings;
(c)    there is no evidence that the claimant actually received any earnings during the relevant period, and
(d)    on the available evidence the claimant’s PAWE were $0.
The insurer sought an order under s 8.3(4) with respect to its costs, relying on the same matters identified by the claimant in support of his application for costs.

CONSIDERATION

In his statement of 20 February 2025, the claimant describes himself as the “heart and soul” of the business. I accept that, when legal forms are stripped away, that characterisation is accurate. The claimant drove the concrete truck and delivered and poured the concrete. Other than on rare occasions, he was the only person who carried out the work. In short, if he did not drive the truck and deliver the concrete, Peak would not earn income.
However, Peak is a separate and distinct legal person. In this regard s 1.5.1 of the Corporations Act 2001 (Cth) states as follows:
“1.1 Separate legal entity that has its own powers
As far as the law is concerned, a company has a separate legal existence that is distinct from that of its owners, managers, operators, employees and agents. A company has its own property, its own rights and its own obligations. A company's money and other assets belong to the company and must be used for the company's purposes. A company has the powers of an individual, including the powers to: * own and dispose of property and other assets * enter into contracts * sue and be sued. Once a company is registered, its separate legal status, property, rights and liabilities continue until ASIC (Australian Securities and Investments Commission) deregisters the company.
[sections 119, 124—125, 601AA—601AD]”
Peak contracted with Metromix and Metromix paid Peak for the work performed under the contract. Metromix did not pay the claimant. The “business” referred to by the claimant was not carried on by him; it was carried on by Peak.
Although the work performed in fulfilment of the contract between Peak and Metromix was undertaken by the claimant this does not alter the legal position; payments made in accordance with the contract were made to Peak, and any income, profit, or earnings received in performance of the contract were Peak’s. The proceeds of the business were the earnings of Peak, not the claimant. Payments made by or on behalf of the Trust were made at the direction of Peak as trustee for the Trust and not at the direction of the claimant.
The claimant’s PAWE is determined by reference to the gross earnings he received not the earnings (or profit) received by Peak, a separate and distinct legal person: Patton v Allianz Australia Insurance Limited (No 1) [2022] NSWPICMR 45,[1] Gorrie v Allianz Australia Insurance Limited [2023] NSWPICMR 18,[2] Singh v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMR 39,[3] Pal,[4] and Liu v QBE Insurance (Australia) Limited [2024] NSWPICMR 65.
[1] At [26]-[27].
[2] At [41].
[3] At [16]-[21].
[4] See Pal v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMR 57 at [13]-[15].
The claimant conceded at the hearing that there is no evidence before the Commission that monies were paid in any form directly to him, or that he received earnings for the work he performed.
I do not accept the claimant’s submission that various concepts, terms and definitions found in the Tax Act can be called on to assist interpreting Sch 1 cl1(1).[5] The MAI Act and the Tax Act are not similar statutes. They do not come within the in pari materia principle. The language found in each statute is used in different and dissimilar contexts.[6] Each of the MAI Act and the Tax Act has different objects and deals with different subject matter. Each Act must be read in context.
[5] For example, the claimant argues that income is considered "derived" or “received” for tax purposes even if it has not been physically received by the person. He also submits that: an individual under “the Australian tax law “is deemed to have received or derived income on a cash basis or receipts basis method; this means income is received or derived when it is actually or constructively received, and constructively received means the income was made available to a taxpayer but not physically received by him. He also refers to s 6.5 of the Tax Act.
[6] See discussion in D Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9^th ed, 2019) 119-122.
As discussed earlier, “earnings” is not defined in the MAI Act and a definition of “earnings” cannot be derived from the definition of “loss of earnings” found in Sch1 cl 3 of the MAI Act. The parties agreed that “earnings” means income gained in return for labour or services provided by an earner.
In Pal the Merit reviewer found that Sch 1 cl 4(1) is concerned with actual earnings received by the claimant: at [48]. I agree. I reject the claimant’s “constructive receipt” case.
There is no evidence the claimant actually received income in return for labour or services he provided during the relevant period. The evidence does not support a finding that he received any income in the nature of earnings, salaries, wages, commissions, fees, bonuses, pensions, retiring allowances and retiring gratuities, allowances and gratuities received in the capacity of employee or in relation to any services rendered,[7] from Peak, Metromix, or the Trust.
[7] Sch 1 cl 3(2) MAI Act.
The income referred to in the claimant’s individual income tax returns was not earnings received by him. As submitted by the insurer, income for the purposes of the Tax Act is not the same as earnings received by the claimant for the purposes of Sch 1 cl 4(1).
Even if, as the claimant submitted, a beneficial approach may be taken[8] to interpreting Sch 1 cl 4(1) it would not result in a different outcome given the facts of the case.
[8] See ADCO Constructions Pty Ltd v Goudappel (2014) 254 CLR1; [2014] HCA 18 at [29] and Allianz Australia Insurance Limited v Estate of the Late Summer Abawi [2025] NSWCA 85 at [60] Kirk JA (Adamson and Stern JJA agreeing).
The claimant’s secondary case is that payments made by the Trust to him were in the nature of profit distributions, a form of personal exertion income he received in the relevant period. He relies on Mr Croft’s report in support of this submission. In this regard, Mr Croft expressed the opinion that total annual payments determined at the end of the FY2024 are more likely to be a distribution of profit or a transaction between the claimant (as beneficiary) and the Trust.

In his statement dated 20 February 2025 the claimant stated:
“[2] At the time I signed my statement [dated 15 January 2025] I understood that my earnings came from The Peak Empire Trust distributing my profits and earnings to me personally during the course of the financial years ending 30 June 2023 and 30 June 2024. I now understand that from an accounting analysis this is not what occurred.”
He went on to state at [10]:
“…the funds paid to me were not ‘trust distributions of profit’ from the trust but rather a payment of profit to me that invoiced the trust using my own ABN…”
Mr Kouloukakis did not describe or refer to distributions of profit to the claimant in his statement.
I am not satisfied that in the financial years ending 30 June 2023 and 2024 there is evidence of distribution of Trust income to the claimant.
I find that the claimant did not actually receive any earnings during the relevant period. It follows that during the 12 months immediately before the day on which the accident occurred the claimant did not receive any gross earnings as an earner. His PAWE is $nil.

COSTS

Claimant’s costs

The claimant seeks an order under s 8.10(4) of the MAI Act permitting payment of the reasonable and necessary legal costs he incurred in connection with the proceedings. The Commission can make the order sought only if satisfied that exceptional circumstances exist that justify payment of the costs he has incurred: s 8.10(4) MAI Act.
To be “exceptional circumstances” the circumstances must be unusual or out of the ordinary, whether as a result of qualitative or quantitative factors. The case need not be one that is unique, unprecedented, or very rare. The question is determined on the basis of the facts of the individual case.[9]
[9] San v Rumble (No 2) [2007] NSWCA 259 at [67].
Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional.[10]
[10] Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [26].
In AAI Ltd trading as GIO v Moon [2020] NSWSC 714 it was found that s 8.10(4) of the MAI Act can be seen as designed to deal with particular, unusual situations where the maximum costs fixed by the Regulations may not be adequate, and that:
“[99] …other cases can be envisaged which are exceptional, because they involve an unusual degree of factual or legal complexity or for some other reason, and this requires the incurring of more substantial legal costs by a claimant. These cases fall within s 8.10(4).”
I have taken into consideration the factual and legal issues in dispute and the legal work undertaken by the claimant’s lawyers in connection with the proceedings, including the preparation of written submissions and appearance at the hearing. These matters, when taken together, satisfy me that exceptional circumstances exist that justify payment of the claimant’s costs.

Insurer’s costs

The insurer seeks a costs order under s 8.3(4) of the MAI Act and relies on Moon at [127]-[128]. The insurer argues that, having regard to the complex legal and factual issues that arose in the proceedings, the Commission should exercise its discretion to make the order it seeks.
Having regard to the issues in dispute and the legal work undertaken on behalf of the insurer, I am satisfied that for the purposes of s 8.3(4) of the MAI Act, the Commission should permit payment of the insurer’s reasonable legal costs for legal services provided to it in connection with the proceedings.

DETERMINATION

The reviewable decision is affirmed.
Payment of the reasonable and necessary legal costs incurred by the claimant in connection with the proceedings is permitted in accordance with s 8.10(4) of the MAI Act.
Payment of the insurer’s reasonable legal costs for legal services provided to it in connection with the proceedings is permitted under s 8.3(4) of the MAI Act.

[2025] NSWPICMR 17

28 May 2025