Primestyle Pty Ltd v Fluhler
[2017] WASC 296
•16 OCTOBER 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: PRIMESTYLE PTY LTD -v- FLUHLER [2017] WASC 296
CORAM: ACTING MASTER STRK
HEARD: 14 SEPTEMBER 2017
DELIVERED : 16 OCTOBER 2017
FILE NO/S: COR 175 of 2017
BETWEEN: PRIMESTYLE PTY LTD
Plaintiff
AND
HANS FLUHLER
Defendant
Catchwords:
Corporations law - Application to set aside statutory demand - Genuine dispute - Defect - Whether substantial injustice will be caused unless the demand is set aside - Whether there is some other reason why the demand should be set aside - Relief under s 459J(1)(a) or (b) of the Corporations Act 2001 (Cth) - Turns on own facts
Legislation:
Corporations Act 2001 (Cth), s 459G, s 459H, s 459J(1)(a), s 459J(1)(b)
Result:
Application dismissed
Statutory demand varied and declaration given pursuant to s 459H(4)(a) and (b) Corporations Act 2001 (Cth)
Category: B
Representation:
Counsel:
Plaintiff: Mr P N Holmes
Defendant: Mr J N C Flexman
Solicitors:
Plaintiff: Holborn Lenhoff Massey
Defendant: Birman & Ride
Case(s) referred to in judgment(s):
Arcade Badge Embroidery Co Pty Ltd v Deputy Commissioner of Taxation [2005] ACTCA 3; (2005) 157 ACTR 22
Createc Pty Ltd v Design Signs Pty Ltd [2009] WASCA 85
Fairstar Resources Ltd (Receivers & Managers Appointed) v Bhalla [2017] WASC 74
Kisimul Holdings Pty Ltd v Clear Position Pty Ltd [2014] NSWCA 262
Mibor Investments Pty Ltd v Commonwealth Bank of Australia [1994] 2 VR 290
Polstar Pty Ltd v Agnew [2007] NSWSC 114; (2007) 208 FLR 226
Portrait Express (Sales) Pty Ltd v Kodak (Australasia) Pty Ltd [1996] NSWSC 199; (1996) 20 ACSR 746
Re MK Group Phoenix Pty Ltd [2014] NSWSC 1467
Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd [1997] FCA 681; (1997) 76 FCR 452
Universal Music Australia Pty Ltd v Brown [2003] FCA 1213
ACTING MASTER STRK: This is an application by the plaintiff to set aside a statutory demand issued by the defendant dated 3 July 2017. The application was brought within 21 days.
The plaintiff's application was supported by two affidavits. The first affidavit was sworn on 27 July 2017 by Joseph Tilli, General Manager of the plaintiff (the Tilli affidavit). The second affidavit was sworn on 27 July 2017 by Franco Joseph Mestichelli (the Mestichelli affidavit), a solicitor who acted on behalf of the plaintiff in proceedings before the State Administrative Tribunal (SAT), and for a period after the conclusion of those proceedings.
The plaintiff also relies upon submissions filed on 31 August 2017 and its supplementary submissions filed on 12 September 2017.
A copy of the statutory demand appears as attachment JT‑1 of the Tilli affidavit. The statutory demand refers to the amount of $62,490.28, being the total sum of the debts described in the schedule to the statutory demand.
By the statutory demand, the defendant says that he is owed by the plaintiff four separate amounts pursuant to orders made by SAT in the matters CC 780 of 2016 and CC 1241 of 2016. The four amounts are: $1,400, $8,281.28, $42,524 and $10,285, which amounts were registered as judgment debts within the Magistrate Court in matters ROO 9430 of 2017, ROO 9428 of 2017, ROO 9429 of 2017 and ROO 9432 of 2017, respectively.
The statutory demand was accompanied by an affidavit as is required by the Corporations Act 2001 (Cth). The affidavit of James Nathan Charles Flexman sworn on 3 July 2017, the solicitor for the defendant, is attachment JT‑2 to the Tilli affidavit.
The plaintiff's position
While the materials filed on behalf of the plaintiff created some confusion as to the plaintiff's position, at the hearing of this application it was made clear that the position pressed by the plaintiff is as follows.
First, the plaintiff says that there is genuine dispute between it and the defendant about the existence or amount of the debt which the demand relates pursuant to s 459(1)(a) of the Corporations Act. The genuine dispute arises as the defendant agreed, by a term of a 'subsequent contract':
(a)not to proceed with any further action of enforcement in relation to one of the four debts (being the amount of $42,524); and
(b)to allow the insurance 'to proceed to finalisation'.
The plaintiff says that the 'subsequent contract' is recorded in email communications exchanged as between Mr Mestichelli and the defendant. Relevantly there were six emails exchanged in the period 26 April 2017 to 17 May 2017. The relevant emails were annexed to the Mestichelli affidavit as attachments FM‑1 and FM‑2. At sch A to this judgment the text of each email communication is reproduced and the time each email was sent is noted.
Secondly, the plaintiff says that there was a defect in the demand, in that the demand included amounts that were not due by reason of the subsequent contract (being the amount of $42,524). The plaintiff goes on to say that because of the defect in the demand, substantial injustice will be caused unless the demand is set aside, enlivening s 459J(1)(a) of the Corporations Act. The plaintiff described the substantial injustice as follows:
(a)should the demand not be set aside, the plaintiff will be presumed insolvent; and
(b)there was substantial injustice in the issuance of the statutory demand as the demand included or relied upon a debt that was not yet due for payment; and
(c)the plaintiff now relies on the insurance of the structural engineer who it is alleged, caused the issues that give rise to the SAT orders. Allowing the statutory demand to succeed, may result in the winding‑up of the plaintiff before the insurance is determined.[1]
[1] Plaintiff's submissions filed 31 August 2017 [9(b)(i)].
Thirdly, the plaintiff says that there is some other reason why the demand should be set aside enlivening s 459J(1)(b) of the Corporations Act. That 'other reason' is that the defendant is on notice that the plaintiff seeks indemnification from insurers in relation to each of the four debts referred to in the statutory demand issued by the defendant. The plaintiff says that the issuance of a statutory demand by the defendant when on notice of the insurance claim is an attempt to subvert the intended operation of pt 5.4 of the Corporations Act, using the statutory demand as a tool for debt recovery.
The defendant's position
The defendant did not file any affidavit evidence in response to the application but relied on its written outline of submissions filed on 15 August 2017.
In short the defendant says that by the statutory demand dated 3 July 2017, he demanded repayment of the sum of $62,490.28 in respect of the orders made by SAT against the plaintiff. He deals with the total alleged debt in two parts: $19,966.28, which he describes as the 'uncontested debt'[2]; and $42,524, which he describes as the 'contested debt'.
[2] $19,966.28 is the total of three of the four debts, being the amounts of $1,400, $8,281.28 and $10,285.
First, the defendant says that there is no genuine dispute between him and the plaintiff about the existence or amount of the debt which the demand relates, for the reasons set out at pars 9 and 10 of the defendant's written outline of submissions, which are reproduced below:
9The plaintiff relies on the respondent's email to establish that there was an agreement between the parties compromising the contested debt.
10This argument is misconceived for the following reasons:
10.1the alleged agreement lacks certainty; it is impossible to ascertain what constitutes 'more plausible information and or documents' or the period of the proposed forbearance;
10.2if there was an agreement, it was conditional on the plaintiff providing 'more plausible information and or documents'. The only evidence of the 'more plausible information' is the letter from GIO to the plaintiff dated 26 April 2017. The amount of the indemnity offered by GIO is unclear; nor is there any evidence that the plaintiff paid the demanded excess of $2,500; or how the insurance claim has progressed (if at all) after 26 April2017; and
10.3assuming that the plaintiff had provided 'more plausible information', at its highest the respondent's obligation was to '[refrain] from taking further action of enforcement for the moment' to allow the insurance claim to be finalised. 'Moment' means a 'point of time, an instant'. It cannot be construed to refer to the period from 17 May 2017 to 3 July 2017 (the date the statutory demand was issued). (footnotes omitted)
For the reasons set out above, the defendant says that the plaintiff's action must fail at least in relation to the uncontested debt. He says that, at best, the plaintiff is entitled to an order that the debt be varied to $19,966.28, pursuant to s 459H(4) of the Corporations Act.
The defendant's written outline of submissions did not address the other arguments advanced by the plaintiff, nor the relief sought under s 459J of the Corporations Act.
As explained above, at the hearing of this application it was made clear that the position pressed by the plaintiff was as set out at [8] ‑ [11] above.
At the conclusion of the hearing, I invited counsel for the defendant to respond to the plaintiff's submissions concerning s 459J and I informed counsel that I would be prepared to program the filing of written submissions in response to the plaintiff's position (as the plaintiff's position had not been clearly articulated before the hearing), to ensure that there was no prejudice to the defendant from having been taken by surprise, and that I would provide the plaintiff with an opportunity to respond to those submissions in writing. After taking instructions, counsel for both parties informed me that they did not wish to file further written submissions. The defendant's position was that while the plaintiff's submissions were not conceded, the defendant was content to leave the question of the application of s 459J(1)(a), alternatively s 459J(1)(b), to the court for consideration and determination.
Objections to the plaintiff's affidavit evidence
Turning to objections raised by the defendant to the plaintiff's affidavit material, the defendant objected to pars 9 ‑ 23 of the Tilli affidavit on the ground of relevance, and par 3 of the Mestichelli affidavit on the ground that the paragraph was conclusionary. When pressed, counsel for the defendant confirmed that the first and last sentences of par 3 of the Mestichelli affidavit did not fall within the scope of the objection.
The plaintiff conceded the objections taken.
Genuine dispute
The first substantive question to be determined is whether the court is satisfied that there is a genuine dispute between the plaintiff and the defendant about the existence or amount of a debt to which the demand relates. In this application the plaintiff bears the onus of establishing that it has a genuine dispute.
There are many cases which discuss what the phrase 'genuine dispute' actually means. In this case, counsel for the parties conceded that there was no conflict as between the parties as to the principles to be applied in determining whether a statutory demand should be set aside on the basis of the existence of a genuine dispute.
As to the applicable principles, I refer the judgment of the Chief Justice in Createc Pty Ltd v Design Signs Pty Ltd.[3] For present purposes, I note that the plaintiff must establish a plausible contention which requires investigation. The plaintiff must establish that the dispute is bona fide and truly exists in fact, and the grounds of alleging the existence of the dispute are real and not spurious, hypothetical, illusory or misconceived. As was observed by the Chief Justice in Createc, it is well established that the only function of the court is to determine whether there is a genuine dispute; the court is not expected to undertake an extended inquiry nor attempt to weigh the merits of the dispute.[4]
[3] Createc Pty Ltd v Design Signs Pty Ltd [2009] WASCA 85 [43] ‑ [46].
[4] Createc [46], citing Mibor Investments Pty Ltd v Commonwealth Bank of Australia [1994] 2 VR 290.
In summary, the plaintiff says that a genuine dispute arises as the defendant agreed, by a term of a subsequent contract, not to proceed with any further act of enforcement and to allow the insurance to 'proceed to finalisation', at least in relation to the judgment in the amount of $42,524. The plaintiff relies upon emails exchanged between the defendant and Mr Mestichelli to establish that subsequent contract.
The determination of this application is dependent upon the proper interpretation of the emails exchanged. In my view, on an analysis of the emails exchanged I find that there is no genuine dispute in relation to three of the four amounts which comprise the total alleged debt the subject of the statutory demand. That is, the amounts of $10,285, $8,281.28 and $1,400 which together total $19,966.28 (described by the defendant as the uncontested debt). In this regard, the defendant's email communication of 17 May 2017 at 11.58 am is clear; he foreshadowed the issuing of a statutory demand if the sum of $19,966.28 together with other specified amounts were not paid by 24 May 2017.
As to the amount of $42,524 (described by the defendant as the contested debt), I have given careful consideration to the submissions made on behalf of the defendant, including the defendant's written submissions at pars 9 and 10, reproduced above.
However, I find that on the face of the emails exchanged, there is a genuine dispute in relation to one of the four amounts which comprise the total alleged debt the subject of the statutory demand. That is, in relation to the amount of $42,524, there is a plausible contention that requires investigation. I am not satisfied that the grounds for alleging the existence of a dispute are wholly misconceived. Having come to this conclusion, I have refrained from making an extended inquiry, nor have I attempted to weigh the merits of the dispute.
In light of the above, it would be appropriate to make an order varying the statutory demand to the substantiated amount of $19,966.28, and to declare the statutory demand to have had effect as so varied as from when the statutory demand was served on the plaintiff, pursuant to s 459H(4)(a) and (b) of the Corporations Act.
However, the plaintiff seeks more than the variation of the statutory demand. The plaintiff presses for the statutory demand to be set aside in its entirety under s 459J(1)(a) or (b) of the Corporations Act.
Relief under s 459J(1)(a) of the Corporations Act
Section 459J(1)(a) provides that on an application under s 459G, the court may by order set aside the demand if it is satisfied that because of a defect in the demand, substantial injustice will be caused unless the demand is set aside.
'Defect' is given a definition of inclusion in s 9 of the Corporations Act, and includes an irregularity; a misstatement of an amount or total; a misdescription of a debt or other matter; and a misdescription of a person or entity.
In this case the defect relied upon by the plaintiff is the inclusion of an amount ($42,524) that was not due by reason of the subsequent contract.
The inclusion in a statutory demand of an amount not yet due is a defect in the demand within the general meaning of 'defect'. I agree with the observations made by Bryson J in Portrait Express (Sales) Pty Ltd v Kodak (Australasia) Pty Ltd,[5] that as a defect, the inclusion of an amount not yet due goes well beyond misstatement, misdescription and the other matters referred to in the definition of inclusion in s 9; it is more than a misstatement of an amount or total, and more than a misdescription of a debt to include a sum which is simply not payable at all in a demand for payment with threats of adverse consequences.
[5] Portrait Express (Sales) Pty Ltd v Kodak (Australasia) Pty Ltd [1996] NSWSC 199; (1996) 20 ACSR 746 (750).
As observed by Black J, the authorities make clear that a statutory demand that relies on, or includes, a debt that is not yet due for payment may be set aside, although the case law differs as to whether such an order may be made under s 459H or s 459J of the Corporations Act.[6] In Portrait Express (Sales) Pty Ltd v Kodak (Australasia) Pty Ltd, Bryson J held that the inclusion of debts not yet due for payment at the date of the demand was a defect within the demand under s 459J(1)(a) of the Corporations Act, which would authorise the court to set aside the demand if it was satisfied that substantial injustice would be caused unless the demand was set aside.
[6] Re MK Group Phoenix Pty Ltd [2014] NSWSC 1467 [41].
A defect alone will not result in the demand being invalid.[7] The Court must be satisfied that satisfied that substantial injustice would be caused unless the demand was set aside.[8]
[7] Corporations Act, s 459J(2).
[8] See also Fairstar Resources Ltd (Receivers & Managers Appointed) v Bhalla [2017] WASC 74 [13] (Sanderson M).
The plaintiff says that it would suffer substantial injustice in the form described at [10] above, and I deal with each in turn below.
First, the plaintiff says that should the demand not be set aside, the plaintiff will be presumed insolvent.
While this argument was not further developed by counsel for the plaintiff, I note that Bryson J opined on a similar submission pressed on behalf of the plaintiff in Portrait Express (Sales) Pty Ltd v Kodak (Australasia) Pty Ltd and made the following observation.[9]
In my opinion the inclusion in the Statutory Demands of requirements for payment of significant sums of money which were not due for payment within the period available for compliance was an injustice to the plaintiffs. They were placed under a need to apply to set aside the demands and they were under that need whether or not they paid the parts of the sums demanded which in fact were due, as they would be exposed to the risk of winding-up proceedings unless they succeeded in having the demands set aside. An injustice is constituted by the service of a statutory demand in these circumstances. It is not simply that at the date of the demand significant sums demanded were still to fall due; that might be an injustice of itself, but I will leave that on one side. Significant sums were not to fall due until after the time available for an application to set aside the demands, so that the plaintiffs were put under improper pressure to pay moneys which were not due or incur the burden of commencing litigation to set aside the demands. The operation of this excessive requirement as an injustice is mitigated by the fact that the plaintiffs have another ground on which they applied to set aside the Statutory Demand, in respect of all sums claimed in them.
[9] Portrait Express (Sales) Pty Ltd v Kodak (Australasia) Pty Ltd (750 ‑ 751).
The circumstances before me differ to those before Bryson J in Portrait Express (Sales) Pty Ltd v Kodak (Australasia) Pty Ltd in a material respect. In Portrait Express (Sales) Pty Ltd v Kodak (Australasia) Pty Ltd, the court found that there was no genuine dispute about the existence or amounts of the debts to which demand related.[10] In the circumstances of this case, where there is a genuine dispute in relation to the inclusion in the demand of the 'contested debt', I find that any injustice suffered by the plaintiff because of the defect is addressed by variation of the demand under s 459H(4)(a) and (b) of the Corporations Act. While s 459J has paramountcy over s 459H,[11] the circumstances of this case are not such that would justify the setting aside of the statutory demand in its entirety under s 459J(1)(a).
[10] Portrait Express (Sales) Pty Ltd v Kodak (Australasia) Pty Ltd (756).
[11] Corporations Act, s 459H(6).
Secondly, the plaintiff says that there was substantial injustice in the issuance of the statutory demand as the demand included or relied upon a debt that was not yet due for payment. That is, the substantial injustice suffered was that a demand that had a defect was issued. This argument is circular and must fail.
Thirdly, the plaintiff says that it is looking to be indemnified by the insurance of the structural engineer who it is alleged, caused the issues that give rise to the SAT orders. Allowing the statutory demand to succeed (in relation to any amount), may result in the winding‑up of the plaintiff before the insurance is determined.[12] However, this cannot be said to be an injustice that flows because of a defect in the demand. This argument must also fail.
[12] Plaintiff's submissions filed 31 August 2017 [9(b)(i)].
Taking into account all of the evidence before me I am not satisfied that there would be substantive injustice caused to the plaintiff because of a defect in the demand (namely the inclusion of $42,524), and in my view there is no basis that would justify the demand being wholly set aside under s 459J(1)(a).
Relief under s 459J(1)(b) of the Corporations Act
A court may only set aside a defective demand under s 459(1)(a), where there is both a defect and substantial injustice that will be caused unless the demand is set aside. A court may not set aside the demand under s 459J(1)(b) on the basis the demand is defective and has not caused substantial injustice but should be set aside for 'some other reason'. Section 459J(1)(a) and s 459J(1)(b) are mutually exclusive.[13] As noted in Kisimul Holdings Pty Ltd v Clear Position Pty Ltd,[14] 'some other reasons' means a reason other than those specified in s 459H and s 459J(1)(a) of the Corporations Act, and the jurisdiction is a remedial jurisdiction. It has been observed that:[15]
What is contemplated by s 459J(1)(b) is a discretion of broad compass which extends to conduct that may be described as unconscionable, an abuse of process, or which gives rise to substantial injustice: Hoare Bros Pty Ltd v Cmr of Taxation (1996) 62 FCR 302 at 317-18 ; 135 ALR 677 at 691-2.
[13]Spencer Constructions Pty Ltd v G & M Aldridge Pty Ltd [1997] FCA 681; (1997) 76 FCR 452, 457 ‑ 458.
[14] Kisimul Holdings Pty Ltd v Clear Position Pty Ltd [2014] NSWCA 262.
[15] Arcade Badge Embroidery Co Pty Ltd v Deputy Commissioner of Taxation [2005] ACTCA 3; (2005) 157 ACTR 22 [27] (Crispen P, Cray & Marshall JJ).
In Kisimul Holdings, Barrett JA confirmed that:[16]
The operation of s 459J(1)(b) is not confined to cases coming within established categories. The section applies whenever there is a need to counter some attempted subversion of the intended operation of Pt 5.4. Its purpose was recently described somewhat more broadly. In Diploma Construction (WA) Pty Ltd v KPA Architects Pty Ltd [2014] WASCA 91, the provision was said (at [83]) to be one
'which will rarely be employed, but when employed, it will be for the purpose of meeting the demands of justice: Eumina Investments Pty Ltd v Westpac Banking Corp [1998] FCA 824 ; 84 FCR 454, 458-459.'
It is thus a remedial provision under which the court may deal with cases not within s 459H or s 459J(1)(a) in a way that is just, having regard to the purpose of the legislation. Furthermore and as the Full Federal Court said in Hoare Bros Pty Ltd v Deputy Commissioner of Taxation (above) at 137, it is unwise to attempt to mark out the limits of the s 459J(1)(b) power.
[16] Kisimul Holdings [24] ‑ [25].
In my view, pressing a statutory demand in circumstances where a debtor asserts a right of indemnity under an insurance policy, before it is determined whether the insurer will respond, or pending that response, is not an act which could be properly characterised as one which is an attempted subversion of pt 5.4. Such a circumstance can be contrasted to one where the person making the statutory demand is aware that there is a genuine dispute in relation to the debt,[17] or where the statutory demand has been issued to coerce an alleged debtor to pay a disputed amount.[18]
[17] Polstar Pty Ltd v Agnew [2007] NSWSC 114; (2007) 208 FLR 226.
[18] Universal Music Australia Pty Ltd v Brown [2003] FCA 1213 - the affidavit accompanying the statutory demand stated that it would be in the best interests of the alleged debtor to make a cash offer in relation to the disputed amount to avoid 'criminal prosecution of all directors for fraud'. This statement was held to be coercive and constituted 'another reason' why the statutory demand should be set aside.
In all of the circumstances, I am not satisfied that relief under s 459J(1)(b) is supported by a sound or positive ground or good reason which is relevant to the purposes for which the power exists. I would not be at liberty to set aside the statutory demand under s 459J(1)(b) merely because I subjectively considered it fair or reasonable to do so.[19] 'Some other reason' cannot be based simply on some need to bring to the relationship between the parties some broad form of perceived fairness or reasonableness.[20]
[19] Kisimul Holdings [22].
[20] Kisimul Holdings [21].
While it might be open for a subjective judgment to be formed that it would have been reasonable or fair for the defendant to allow the process of the determination of the insurance claim to be determined to run its course, to not do so cannot be described as an act which properly characterised is one which is an attempted subversion of pt 5.4.
Conclusion
In light of these reasons, I intend to make an order varying the statutory demand to the substantiated amount of $19,966.28, and to declare the statutory demand to have had effect as so varied as from when the statutory demand was served on the plaintiff, pursuant to s 459H(4)(a) and (b) of the Corporations Act.
I will hear the parties as to costs.
SCHEDULE A
Attachment FM‑1
Sent: Wednesday, 26 April 10:33 AM
...
Dear Mr Fluhler,
I refer to previous correspondence and to the cost determination made 13 April 2017, which ordered that the costs be payable by 27 April 2017.
I wish to confirm that I have today received written confirmation from GIO Insurance that they shall provide a grant of indemnity in relation to your matter.
Claim finalization shall however take us beyond the payment deadline.
In the circumstances, we kindly request that you refrain from seeking enforcement and allow the matter to proceed to finalization.
We shall keep you updated as to progress.
Kind regards.
FRANK MESTICHELLI B Juris LLB
BARRISTER & SOLICITOR
Sent: Tuesday, 16 May 2017 8:14 AM
...
Dear Mr Mestichelli,
Referring to your e‑mail of the 26 April 2017 in regard to the alleged grant of indemnity to my claims, I kindly request some copies of the documents between GIO Insurance and Primestyle Homes regarding the granting of indemnity to my claims. I like to see some proof of confirmation by GIO Insurance before I am willing to refrain from taking further action of enforcement for the moment in this matter. You request to refrain from enforcement procedure without any proof of documentation from GIO Insurance just seems to be another delaying tactic by Primestyle Homes.
On the 30 August 2016, the 24 February 2017 and on the 13 April 2017 Member Charlotte Wallace and Member Patricia Le Mere handed down decisions in favour of the Applicant Hans Fluhler to the amount of $ 62'490.28 Primestyle Homes the Respondent had made no effort to contact the Applicant in regards to these decisions made by the Members of the State Administrative Tribunal to bring this matters to a financial settlement conclusion. No payments has been made by the Respondent to the Applicant as of today the 15 of May 2017. I am therefore seeking interest payment of 6 % pa of the amount outstanding from the due date till final payment has been made.
I reserve the right to commence with further enforcement procedure through Statutory demand of my claims seven days from the date of this e‑mail without any further notice, unless I have been provided with documents by GIO Insurance confirming your claim of a grant of Indemnity by the Insurer, as well as payments of the outstanding amounts awarded to me by the State Administrative Tribunal.
Kind regards.
Hans Fluhler
Sent: Tuesday, 16 May 2017 8:53 AM
...
Dear Mr Fluhler,
The contents of your email are noted.
I shall forward a copy of recent correspondence from GIO's assessor confirming that the matter is being assessed.
In light of the correspondence we ask that you allow the matter to run its course.
Kind regards.
FRANK MESTICHELLI B Juris LLB
BARRISTER & SOLICITOR
Attachment FM‑2
Sent: Tuesday, 16 May 2017 8:54 am
...
Dear Mr Fluhler,
A copy of recent correspondence from Mr Smyth the loss adjuster for GIO.
As you can see they are in the process of assessing the claim.
Kind regards.
FRANK MESTICHELLI B Juris LLB
BARRISTER & SOLICITOR
Sent: Wednesday, 17 May7 2017 11:58 AM
...
Dear Mr Mestichelli,
The copy of recent correspondence between Mr Smith the loss adjuster for GIO and Mr Joe Tilli does not give any indication whatsoever what the claim by Primestyle Homes is for, or if it is even in relation to my case. I am willing to allow the matter to proceed to finalization between Primestyle Homes and the Insurer without taking any further action of enforcement for the moment if I am been provided with a more plausible information and or documents relating to my case. My offer of refraining from taking further action of enforcement for the moment refers only to the cost determination made by the Member Patricia Le Mere Application Lodged on the 10 August 2016 and decision made on the 24 February 2017 with total cost payable of $ 42'524.00 within 28 days of the order.
I will lodge enforcement procedure through Statutory demand if payments of the cost determination made by Member Charlotte Wallace and Member Patricia Le Mere to the total of $ 19'966.28, plus the cost of Bailiff fees of $ 271.10 and State Administrative Tribunal fee of $ 18.05 totalling $ 20'255.43 has not been settled by the 24 May 2017.
Kind regards.
Hans Fluhler
Sent: Wednesday, 17 May 2017 5:04 PM
...
Dear Mr Fluhler,
I attach a copy of the GIO grant of indemnity.
You will note you are the named claimant.
This matter is still with the loss adjuster including the reimbursement of costs.
Accordingly, we ask that your refrain from taking any further enforcement action.
As soon as the matter is determined we shall let you know and arrangement payment to you.
Kind regards.
FRANK MESTICHELLI B Juris LLB
BARRISTER & SOLICITOR
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