IN THE COUNTY COURT OF VICTORIA AT MELBOURNE No. Cl-12-04516 BETWEEN: BURWOOD HEIGHTS DEVELOPMENTS PTY LTD (ACN 129 711 566) &ORS Plaintiffs (In accordance with the Schedule attached) -and- ROBERT LONG & ORS (In accordance with the Schedule attached) Defendants AFFIDAVIT OF JOSEPH ALESCI Date of Document; 2 fJyen dey 2012 Filed on behalf of the plaintiffs Prepared by: Urban Law Group Solicitor's Code: 12114 71234 Main Street, Tel: (03) 5975 2000 MORNINGTON, VIC 3931 Fax: (03) 5975 0033 |, JOSEPH ALESCI, of 7/234 Main Street Momington, Solicitor make oath and say as follows: 1, On the 25th September 2012 Josephine Smith, an employee solicitor in my practice received a call from a man called 'John’ who wanted an appointment with me, he stated that he was bringing his mother in. Josephine asked him who referred him to my fim and he said he had been recommended to see me but did not provide any further details, 2. Josephine told him that | would be available on Friday morning 28" Sept 2012 at 10.00 am She asked him for a return phone number and he refused to provide one. On Friday 28" September at about 10.30am I was at my desk when a man approximately 5. 9" in height with a moustache, short dark-hair-ancolive complexion marched straight through thereception and into my office. He was quickly followed by two taller men of fair complexion, one of whom was bald. | was concerned because | hadn't really noticed the other two men Until they were standing directly in front of me. ‘The man with the moustache said that he was John and that he needed advice. | asked him who had referred him to me and he said: "We know your family’. The two taller men were wearing caps and lang spray jackets and were glaring at me. They refused to sit down. John smelt of alcohol, was highly agitated and did most of the talking. He commenced a loud, rambling tirade about my business partner, Selly Santoso. He said she was “ripping people off, stealing hundreds of thousands of dollars” and that | had been “swindled” by her. That they worked for Robert Long and that Selly owed Robert Long $300,000.00 ‘John’ said they were in possession of four tubs full of documents that would prove that what he was saying was true and that ‘Selly was scamming people.” | tumed to the two larger men who were still standing and glaring at me and said: “! know when Iam being stood over, can you sit down and talk about this calmly?” | told them that this was the first | had heard of anything like this and to give me a chance to make some enquiries. ‘John’ told me there is $150,000 in Andrew Bell's trust and that they knew that | am a director of the company which owed Healesville, That Company is ACN142 283 869 Ply Ltd (ACN 142 283 869) itis a Plaintiff in these proceedings. John said: “all's (sic) we want is a signature and we will get out of here. “We've got no problem with you, we just want to get the $150,000.” John said they had a court document ordering Selly to pay $150,000 to Robert Long. He handed me a letter from Andrew Bell Solicitor dated 19/9/2012. Now produced and shown to me and marked JA, is that letter. ‘John’ said that Selly had gone bankrupt and that if | had invested any money with her | would lose it. ‘John’ said Andrew Bell is a “crook lawyer and in bed with Selly’, That Mick Gatto had to get involved to get money that was being held by Andrew Bell for another client.10. "1 | asked John if Mick Gatto knew he was using his name, to which he responded ‘Let's leave him out of it for now." John mentioned that they had documents relating to the "Healesville Development and Cranbourne deat and that they had already contacted anyone associated with those developments and told them that Selly was @ crook and that she was going bankrupt. He said that they were on their way to Grovedale to speak to some people associated with another development Selly was involved in. John kept saying “They're going to go bankrupt, mate, “if you don't believe me contact Fruit Real Estate in Ocean Grove”. John told me that he caught up with Chris (Selly’s partner) in Sorrento and that he was “a piece of shit, coward’ that Chris had used his baby as a human shield against them, One of the other men said "He's pathetic." ‘John’ said “we just need to know where they are." I told them that | couldn't contact them as their phones had been disconnected. | told them | didn’t know anything about what they were saying. They then rang Robert Long and handed me a mobile phone. A man spoke to me and introduced himself as Robert Long, (’Long’). He basically restated what John had already told me, in summary; Selly ‘was a crook, ripping everyone off, he had four tubs of ‘sensitive documents’ that would “put Selly away”. He said “| am going to do all it takes to get the $150,000,00 .He said that he had contacted Wisewoulds Solicitors. (Wisewoulds are the first mortgagees of the Healesville Property.) He said he was going to make sure that the Healesville Company (ACN142) would be liquidated. That he had arranged the finance for Healesville and that he represented the private investors that provided funds in respect of that property and that 3 out of the 5 investors wanted to pull thei money out after speaking with him. That he had issued a wind up notice against (ACN142), He told me that | was about to lose my entire investment in the Healesville Property. Long told me that | could buy his charge over the Healesville property and do a ‘commercial deal * to take him out of the picture’. | told him I don’t appreciate having thugs coming to my12 13, 14, 15, 16. 7. office. He made it very clear that he would use all means to “destroy Selly and force her to hand over the money.” | old him I had nothing to do with his arrangement with Selly and that I had no idea what he was talking about. He said “I have no issue with you, it's her | want.” He said | could verify ‘everything with his solicitor "Kieren" of Eales McKenzie. ‘We lett it that | would make my enquiries and see if something could be sorted out to save ACN 142 142 283 869 from liquidation. | gave the phone back to ‘John’ and as the three men got up to leave | asked John for his number as | was writing it down he said “make sure you don't give this number to anyone.” | asked him what I should call him and he said “Just call me 'Charlie” Throughout the 40 minute period | was very frightened as they did their best to take me by surprise and intimidate me. These men were making it very clear that | was to cooperate with them. Immediately after they left | called “Kieren” who I now know is Kieran Mihaly. | told him what had just happened. He seemed to acknowledge that this was happening and said “I am aware my client is persuing an alternative approach.” | was surprised that a fellow Practitioner would be so flippant about this type of behaviour. | asked him whether there had been a wind up notice served on ACN 142 283 869. He told he had not prepared a Statutory Demand. | asked him to send me evidence of his client’s claim and any charging documents. Kieren told me that his client had “sensitive documents’ regarding Healesville and Cranbourne. “The documents in respect of Cranbourne show a sham transaction between. Selly and a related company.” He went into specific detail. He mentioned company names, transfers, company resolutions and dates. | told him | had absolutely no idea about what he was talking about. He said that his client and the State Revenue Office had been cheated18. 49. 24 22. cout of money by Selly. | told him I would review the material once he sent it and | would get back to him, | made notes during the conversation with the three men, Robert Long and Kieran and added more detail immediately after those conversations. Left my office for a meeting in the city at 12.30pm. During my trip I received a phone call from a man called ‘Daryl’. He told me he acted for a landlord where Seily had her office. He started raving on about Selly Santoso, he told me she was in a lot of trouble. | pressed him for his name and he told me he was Daryl Noch. He said that he had been an investigator for ASIC and the Tax department. He told me that he had documents that would expose Selly for defrauding a lot of people, that she would go to gaol. He said because Selly had called the police in respect of a missing container that “it had now become personal.” He told me “I'm going to do everything | can to make her pay.” 20. He told me that he had access to papers that would “destroy Selly. He continued on in what was almost a repeat of what Robert Long had told me on the phone only 30 minutes earlier. It was as if Robert Long was on the phone. He told me that his clients were owed probably $14,000 and that Selly’s company had gone into liquidation. | asked him why he was so excited about such a small amount of money. | said "Companies go into liquidation every day, what's so special about this one?” He repeated that because the police were called he had taken it personally. Later that day, at approximately 1.30 pm | had a call from a blocked number, it was Robert Long. He asked me if | had made contact with Selly and whether | had spoken to Kieran. He said that he had nothing against me and that he just wanted Selly but that | would lose all my money in the Healesville deal if | did not do a deal with him. He said he was prepared to be “commercial” about it. The line then dropped out and a blocked number rang me a further three times. No messages were left. | cid not answer those calls because | thought | was getting in over my head23, As a result of the visit of the three unknown men, the unsolicited phone calls and the discussions | have had with Long | have arranged for security surveillance .| am fearful for my safety and that of my staff. I have told my staff not to work back at night alone 24, | have been contacted by several consultants undertaking work for Selly in respect of the Healesville project who say they have been contacted by an unnamed man and told that Selly is going into liquidation, These people refuse to do any more work for her unless paid up front. 25, On or about 2 October 2012 | contacted Julie Barkla of Wisewould . Julie told me that all Robert Long did was make an introduction to their firm and that contrary to what he had told me, Robert Long does not know who the individual investors are and that he has no influence over where, or on what terms Wisewoulds invest mortgage money and that she was getting ‘sick of the way he operates". That as far as she was concerned, Robert Long was paid in full when the loan was drawn down, 26. | have put these matters to Kieran Mihaly of Eales McKenzie in a series of email exchanges. Now produced and shown to me and Marked JA2 a copy af the email exchanges. 27. Robert Long has instructed his solicitors to issue statutory demand under the Corporations Law on Burwood Heights Developments Pty Lid and ACN129 889 890 Pty Lid, the first and ‘second Plaintiffs in this proceeding. Robert Long has sworn affidavits in support of these demands and sworn that there is ‘no genuine dispute about the existence or the amount of the debt’. This is clearly false and a matter that Robert Long knows to be false at the time of swearing the affidavits. Itis also a matter which Kieren Mihaly knows is false. The amount claimed in both demands is before this court and therefore the subject of dispute. The dispute is set out clearly in the Statement of Claim. Now produced and shown to me and marked JAS is a copy of the Statutory Demands and Affidavits in support sworn by Robert Long Sree28. In response to the statutory demands referred to above paragraph | sent a letter to Eales Mckenzie dated § Novemebr 2012. As of this date there has been no undertaking to withdraw the demands. Now produced and shown to me and marked JA4 is a copy of my letter, 29. | believe Robert Long is doing everything he can to intimidate, bully and pressure Selly Santoso to hand aver the money held in Andrew Bell's trust account. 30. | ask this Honourable court to refer Kieren Mihaly and Robert Long to the appropriate authorities so that the there is no further inappropriate interference in the conduct of this proceeding, SWORN AT MORNINGTON In the State of Victoria Me Deranber 202 Before Me: was akbeaniechillico Suite 6, 560 Lonscaie Street, Melbourne 3000 ‘An Australian legal practitioner within the meaning of the Legal Profession Act 2004.JA EXHIBIT NOTE This is the letter dated 19/9/2012 shown to JOSEPH ALESCI at the time of swearing his affidavit before me on /2 Qcemiber — 2012. spepeinie Chileon (An Australian Legal Practitioner within the meaning of the Legal Profession Act 2004) Suite 6 §60 Lonsdale Speet, (eelbour neeae L A W Y E R poncasTeR £427 vie 3109 ANDRE BELL LAWYER PrY LTD cllice@andrewrbell.com.ow 49 September 2012 Attention: Kieren Mihaly Eales & Mackenzie Legal & Corporate Advisors Kieren@emlawyers.com.au Dear Sirs, A.C.N, 129 889 890 Pty Ltd v. R Long & Ors | refer to our communications over the last 48 hours and advise that | have ceased to act, in this matter, You will recall that yesterday | telephoned your office to advise you that three unsavoury gentlemen had attended my office unannounced and intimidated me in reiation to this matier. Those persons stated that they were acting on behalf of Robert Long, that he wes owed money, that | was holding funds on trust and that | should release those funds to your client in full forthwith. 1 told these individuals that | was holding the funds pursuant to an Order of the Supreme Court and that | was not in a position to release those funds other than by order of the Court or upon the written instruction of both parties, The experience of having these gentlemen arrive unannounced was both unnerving and unsavoury. The fact that they inveigied their way into my office posing as new clients was unacceptable. The fact that your client seeks to employ persons such as this to run a parallel strategy with the litigation is also unacceptable. Those persons attended my office again this moming, once again unannounced. My staff are frightened, upset and feel violated. One of those staff members is my wife.‘As much as | detest bullies and intimidation in the interests of my staff | have resolved to cease to act in this matter. | will continue to hold the sum of $150,000.00 on trust in my Trust Account pending an Order of the Court or the joint written instruction of the parties. For the record | have no difficulty with my conduct whatsoever and | regard your client's threat to make 2 complaint to the Legal Services Commissioner as part of a process. @ process that | wish to have nothing to do with. This letter, my previous correspondence and my Trust Account records shall be produced to the Legal Services Commissioner in support of my professional conduct in this matter. As part of my final professional duty to the Court and my client, | wil file a Request to Enter List and a Notice Ceasing to Act tomorrow. Yours pit iy / {Andrew Belt (ANDREW BELL LAWYER PTY LTD goGondrewbelcom.2u Aicb,“JAZ? EXHIBIT NOTE This is the copy of the email exchanges shown to JOSEPH ALESCI at the time of swearing his affidavit before me on /2- Decesmbe” 2012. eee vibes” ehanie C (An Australian Legal Practitioner within the meaning of the Legal Profession Act 2004) Suk 6, SOLensdale Sheet, feletcurneJoseph Ales From: Joseph Alesci Sent: Tuesday, 30 October 2012 1059 AM To: “Kieren Mihaly’ Subject: RE; Long & Ors -ats- Burwood Heights Developments Pty Lid KIEREN, MY RESPONSE IN CAPITALS BELOW: Joseph Alesci Principal Urban lawgroup 7/234 Main Street, Mornington 3931 0419 353.932 This ermal and its attachments attrac legal profesional pridlege whlch isnt waived ‘isinformation ranzmited is intended cal forthe pesons or entity to which ts addeessad and may contain confidential anor prleges materi It you received ths nero, pave contact the sender ard delet the rateral fom any computer. f you ae nt theintended recipe or the person responsible for delivering the message tothe intended relent, be advised that You have eceved this ransmisionin error and any use, etsemination, Focwaring printing oF copying ofthis message esti robbed From: Kieren Mihaly [mailto:Kieren@emlawyers.com.au] Sent: Friday, 25 October 2012 11:02 AM To: Joseph Alesci ‘Subject: RE: Long & Ors -ats- Burwood Heights Developments Pty Lid Dear Joseph, Itisa matter for you whether you make a complaint about me; | have acted with the utmost professionalism at all times and am not the least bit concerned. | am curious as to what you consider that | have done that warrants complaint and would welcome a full explanation, but again, that is a matter for you. YOU ACKNOWLEDGE THE BEHAVIOUR HAS OR MAYBE OCCURRING, YOU HAVE AN OBLIGATION AS AN OFFICER OF THE COURT TO ENSURE JUSTICE IS NOT IMPEDED. As for the dispute between our clients, to preserve our client’s position, itis necessary to point out the errors in your email: 1. Our client made no admission of using stand aver men by his assurance as to future conduct. The assurance as to the future was made to appease your client and was made with no comment as to the past; THIS MAKES NO SENSE , WHAT GIVE AN ASSURANCE IF THE BEHAVIOUR HAS NOT OCCURRED? THE PEOPLE WHO ATTENDED MY OFFICE GAVE ME YOUR PHONE NUMBER, HOW DO YOU EXPLAIN THAT? ROBERT LONG ACKNOWLEDGE THE VISIT. | HAVE EXTENSIVE NOTES OF OUR CONVERSATION AND THOSE | HAD WITH THE STAND OVER MEN AND ROBERT LONG 2. Likewise, “alternate strategy’, if they were the words spoken, makes no admission as to ilegal activity; THE DEFINITELY WERE SPOKEN; | AM NOT SUGGESTING YOU ARE FOOLISH, YOU ARE A LAWYER, WHY WOULD YOU MAKE AN ADMISSION WHICH WOULD SEE YOU IN SERIOUS TROUBLE? 3. | was not surprised by your allegation as it had been made previously by Andrew Bell; AND DOES THIS NOT CONCERN YOU; TWO LEGAL PRACTITIONERS BOTH ALLEGING CRIMINAL BEHAVIOUR AGAINST YOUR CLIENT?Most importantly, your two emails ask of ongoing use of standover men (as you say “this thuggery needs to stop naw’) yet you return to past acts.NO | AM REFERRING TO ONGOING FACTS, SUCH AS THE ASSAULT ON MY CLIENT'S HORSE TRAINER THAT TOOK PLACE THE PREVIOUS WEEKEND. MORE WILL BE SAID ABOUT THIS IN DUE COURSE You offer no reason to suggest that further acts are alleged. Talk to your clients if you query whether any standover men have approached them recently. If you allage that they have occurred again, make that plain. | DO AND | REFER YOU TO MY PREVIOUS COMMENTS. THINK ITS TIME YOU ADVISE YOUR CLIENT THAT THE MATTER IS BEFORE THE COURTS AND THE “ALTERNATIVE STRATEGY" CEASE IMMEDIATELY. COULD YOU BE KIND ENOUGH TO CONFIRM THAT NO FURTHER APPROACHES WILL BE MADE TO MY CLIENTS OR MYSELF, JOSEPH ALESCI Kieren Mihaly Eales & Mackenzie | Legal & Corporate Advisors | Lawyer | Phone: #61 3.8615 $100 | Fax: +613 9602 4311 | r mau From: Joseph Alesci [mailto:ia@urbanlawaroup.com.au] Sent: 26/10/2012 10:51 AM To? Kieren Mihaly Subject: RE: Long & Ors -ats- Burwood Heights Developments Pty Ltd Joseph Alesci Principal Urban lawgroup 7/234 Main Street, Mornington 3931 0419 353 932 ‘This omallandit attachments atrac egal profesional prilge which snot waived 1s information transmitted intended onl forthe persons or entty to whichis addressed and may contain confidential and/or prvioged materia IF you recehedthisin eror,pleave contact the sender and delete the material rom any computer. you ae act the intended recipent oe the person responsible fee selvoring the message ta the ntanded eepient, be selsod that yu Mave receive tis transmission in ear and any use dissemination, {orwatcing, printing or copying ef this message's stl prohibited, ‘jeren Mihaly [mailto:Kieren@emlanyers.com.au! Sent: Friday, 26 October 2012 10:33 AM To: Joseph Alesc| Subject: RE: Long & Ors -ats- Burwood Heights Developments Pty Lid Dear Joseph, In relation to the service of Zac Morwood, your Counsel should not have consented to Orders with which you could not comply; when do you expect service to be effected so that we may attempt to maintain the current Order as to mediation? | UNDERSTAND HE IS IN THE COUNTRY TODAY AND | HOPE TO EFFECT SERVICE WITHIN A WEEKIn relation to the second half of your email, first, we have always disputed that stand over men were sent to your client. Secondly, our client has given your client (perhaps through Mr Parncutt of Counsel) an assurance no stand over men will be used in the future WHY WOULD THAT BE NECESSARY IF IT HASN'T OCCURRED? Thirdly, why would you ask your question of us; ask your client. Finally, itis wholly inappropriate for you to allege that our client has committed "serious criminal behaviour” and implicating our firm in such an allegation with the words “you are well aware it”; kindly retract your allegation, ATTEMPTING TO THE PERVERT THE COURSE OF JUSTICE (IF PROVEN) IS; SERIOUS CRIMINAL BEHAVIOUR. | SPOKE TO YOU ON THE PHONE ON THE 28 SEPTEMBER AND I TOLD YOU ! HAD BEEN THREATENED IN MY OFFICE BY THE SAME THREE MEN THAT ATTENDED ANDREW BELL'S OFFICE, YOUR RESPONSE WAS AND | QUOTE : “I AM AWARE MY CLIENT IS USING AN ALTERNATIVE STRATEGY”. | TOOK NOTES OF OUR CONVERSATION, YOU WERE NOT THE SLIGHTEST BIT SURPRISED BY MY ALLEGATION THEN . | WILL NOT BE WITHDRAWING ANYTHING AND I WILL BE SPEAKING TO ANDREW BELL ABOUT A JOINT COMPLAINT IN RESPECT OF YOUR BEHAVIOUR. IF | SEE OR HEAR FROM YOUR CLIENT OR ANYONE ASSOCIATED WITH HIM | WILL MAKE A COMPLAINT TO THE POLICE. THIS THUGGERY NEEDS TO STOP NOW! Kieren Mihaly Eales & Mackenzie | Legal & Corporate Advisors | Lawyer | Phone: + 613 8615 9100 | Fax: +613 9602 4321 |www.emlawyers.com.au, joseph Alesci [mailto:ja@urbanlaworoup.com.au) Sent: 26/10/2012 10:25 AM To: Kieren Mihaly Subject: RE: Long & Ors -ats- Burwood Heights Developments Pty Ltd {advise that Paul Morwood has been served and that Zac Morwood has been away, we are attempting to have him served, In the meantime has your client stopped sending stand over men to my clients and their associates? This is serious criminal behaviour and you are well aware it. Joseph Alesci Principal Urban lawgroup 7/234 Main Street, Mornington 3931 0419 353 932 ‘hs mall ant attachments atest lgal professional priiege which eno waived Tis information transmitted is intended only for the persons or entity to which ts addressed and may contain confidential and/or privileged material I you received thin sor, please contact te sender and delete theenateral from any computer. you are notte intended repent or the person responsibe for delivering zhe message to the intended reciplent, be nice that youhave recived this transmission io esor and any use, seimination, foraaztig,prating, or copying of hs message stvetlyproited ‘jeren Mihaly [mailto:Kieren@emlawyers.com.au] Sent: Thursday, 25 October 2012 4:33 PM To: Joseph Alesci Ce: Josephine Smith; G.J. Parncutt, Barrister (parncutt@vichar,com.au) Subject: Long & Ors -ats- Burwood Heights Developments Pty Ltd Dear Joe,We refer to the Court's Orders in this matter that the Plaintiff serve the other defendants on or before 14 October 2012. We are unsure whether that has occurred but not that, some 11 days after that deadline, no Affidavit of Service has been filed. We presume, as a result, that the other defendants have not been served. We ask asa matter of urgency to advise as to the progress af service. We also place you on notice that we are not prepared to mediate this matter without all defendants being present, and, accordingly, we will rely on your failure to comply with the order for service on the question of costs if we must return to the court to extend the time for the mediation of this matter. Kieren Mihaly Eales & Mackenzie | Legal & Corporate Advisors | Lawyer | Phone: + 62 3.8625 9100 | Fax: #613:9602 4313 | wwenemlewyers.com.au Disclaimer: This e-mail is from Eales & Mackenzie, Legal & Corporate Advisors. The contents are confidential, and are intended only for the named recipient of this e-mail. if you are not the intended recipient you are hereby notified that any use, reproduction, disclosure or distribution of the information contained in the e-mail is prohibited, Ifyou have received this ¢-mailin error, please reply to us immediately and also delete and destroy the document, fram your system. VIRUSES: Eales & Mackenzie cannot and does not provide any warranty that this material or any attachments are free from computer virus or other defect or that the opening or execution of any attachment will not cause harm to the computer system of the recipient. Any loss/damage howsoever incurred by using this material is not the sender's responsibility and Eales & Mackenzie accepts no liability whatsoever. Liability limited by a scheme approved under Professional Standards Legislation.‘JAZ EXHIBIT NOTE This is the copy of the Statutory Demands and Affidavits in support sworn by Robert Long shown to JOSEPH ALESCI at the time of swearing his affidavit before me on /2— Decoonber 2012. A tA (An Australian Legal Practitioner within the meaning of the Legal Profession Act 2004) Surte €,5t0 Leasdale Street, (M46 then riveBALES & MACKENZIE ' LEGAL & CORPORATE ADVISORS Our Ref DEKM:24065 30 October 2012 Mr Joseph Alesci Urban Law Group 7/234 Main Street MORNINGTON VIC 3931 By email: ja@urbanlawygroup.com.au Dear Me Altesci Without Prejudice RE: Robert Long : Burwood Heights Developments Pty Ltd ((BHD*) ACN 129 889 890 Pty Ltd (ACN 129°) We advise of the following: 1. On 2 October 2012, a statutory demand was left at the registered office of ACN 129 demanding payment of $93,600.00; 2. The time for responding to that demand has expired; 3. ACN 129 has therefore committed an act of insolvency; and 4, We are instructed (o prepare an application to wind up ACN 129 in insolvency. We further advise of the following: 1. On 8 October 2012, a statutory demand was left at the registered office of BED demanding payment of $77,500.00; 2. The time for responding to that demand has expired; 3. BHD has therefore committed an act of insolvency; and 4, We are instructed to prepare an application to wind up BHD in insolvency. For your reference, we enclose both statutory demands and both Affidavits in support of those demands. Our client is prepared to provide your client with one final opportunity to resolve this matter. Currently, Andrew Bell Lawyer Pty Ltd holds $150,000 in trust pending the outcome of this litigation; our client offers to accept $120,000 in full and final settlement of all disputes between our clients (and thereby release the remaining 530,000 to your clients). Our client also offers to provide any reasonable assistance sought by your clients in their claims against Zac and Paul Morvood. Liability linitod by 9 scheme approved inder Profesional Standards Legislation rene “Telephones (46 3) 8615 9100 Kidai LMtachowie wuts hove 5, 95 Queen Suse, Melbonone Facsimile (461 3) 96024311 Vietoria 3000 Anstratia DS2I Melbourne ennai: ad visoes@ omlawyers.corm.au “Website: woriwemfawyerssWe confirm that in the event that a satisfactory response is not received by 2 November 2012, our client will file applications to wind up BHD and ACN 129, which will no doubt result in the whole of the funds held in trust being lost to your elients. Should you have any questions, please do not hesitate to contact our office. i Yours faithfully EALES & MACKENZIE sesamiaeFORM? (wie $2) AFFIDAVIT ACCOMPANYING STATUTORY DEMAND. ROBERT LONG Creditor ACN 129 889 890 PTY LTD Debtor Company I, Robert Long, of level 6, 10 Help Street, Chatswood, in the State of New South Wales, investment broker, say on oat 1. Tam the Creditor in respect of a debt of $93,600 owed by the Debtor Company to me, which is for the two fees due under clause 6 of the non-disctosure and non-circumvention agreement between me, Selly Santoso end the Debtor Company, dated 26 October 2011, in relation to the brokerage of a loan offer in relation to 17-25 Maroondah Highway, Healesville, in the State of Victoria. 2. As the Creditor, | had the dealings with the Debtor Company that gave rise tothe debt and have inspected iny business records in relation fo the Debtor Company. 3. ‘The debt referred to in paragraph 1, above, is due and payable by the Debtor Company. 4, Tbetieve that there is wo genuine dispute about the existence or the ammount of the debt SWORN by Robert Long st in the State of New South this 27° day of Septgriber 201 ~ Bofore me:Form 509H Corporations Act 2001 (paragraph 4596 2) (9) CREDITOR’S STATUTORY DEMAND FOR PAYMENT OF DEBT To: ACN 129 889 890 Pty Ltd (ACN 129 889 890) of 151 Rooks Road, Vermont South, in the State of Vietoria (the “Debtor Company") 1. The Debtor Company owes Robert Long of level 6, 10 Help Street, Chatswood, in the State of ‘New South Wales (the ‘creditor’), $93,600 being the amount of the debts described in the Schedule 2. Attached is the Affidavit of Robert Long, dated 27 September 2012, verifying that the amount is due and payable by the Debtor Company. 3. The creditor requires the Debtor Company, within 21 days after service ou the Debtor Company of this demand: a. To pay to the creditor the amount of the debt; or To secure or compound for the amount of the debt, to the creditor's reasonable satisfaction, 4, The creditor may rely on a failure to comply with this detmand within the period for compliance set out in subsection 459F (2) as grounds for an application to a court having Jurisdiction under the Corporations Act 2901 for the winding up of the Debtor Company. 5. Section 459 of the Corporations Act 2001 provides that « company served with a deinand may apply to a court having jurisdiction under the Corporations Act 2001 for an order setting. the demand aside. An application must be made within 21 days after the demand is served ang, within the saine period a. _Anaffidavit supporting the application must be filed with the court; and b. A-copy of the application and a copy of the affidavit must be served on the person ‘who served the demand. A failure to respond to a statutory demand can have very serious consequences for a company. In particular, it may result in the company being ptaced in liquidation and control of the company passing (o the liquidator of the company. 6, ‘The address of the creditor for service of copies of any application and affidavit is Eales & Mackenzie, level 5, 95 Queen Steet, Melbourne, in the State of Victoria.SCHEDULE, Description of the debt Fee due under clause 6 of the non-disclosure and non- circumvention agreement between me, Selly Santoso and the Debtor Company, dated 26 October 2011, in relation to the brokerage of a loan offer in relation to 17-25 Maroondah Highway, Healesville, in the State of Vietoria, namely 3% of $1,560,000.00 Fee due under clause 6 of the nondisclosure and non circumvention agreement between me, Selly Santoso and the Debtor Company, dated 26 October 2011, in relation to the brokerage of @ loan offer in relation to 17-25 Maroondah Highway, Healesville, in the State of Victoria, namely 3% of $1,$60,000.00 Dated: 2 October 2012 signed: LP sessment ata Total Amount of the debt $46,800 $46,800 $93,600NOTES: 1. The form must be signed by the creditor or the creditor's solicitor. it may be signed on bebalf of a partnership by a partner, and on behalf of a comporation by @ director or by the seeretary or an executive officer of the corporation 2. The ammount of the debt or, if there is more than one debt, the tolal of the amounts of the debts, rust exceed the statutory minicnutn of $2,000. 3. Unless the debt, or each of the debts, isa judgment debs, the demand must be accompanied by an affidavit that: 2. verifies that the debt, or the total of the amounts of the debts, is due and payable by the company; and b. complies with the rules. 4. Apperson may make a demand relating to a debt that is owed to the person as assignee. 5. This form was amended in 2006 as part of amendments of the Corporations Regulations 2001. For the period of 12 months after the commencement of those amendments a person may comply with paragraph 459 (2) (e) of the Corporations Act 2007 in relation to a statutory demand for payment of debt by using: the version of this form that was in force immediately before the commencement of the amendments; ot b, this version of the form.To: Form 509H (paragraph 459€ (2) (e)} Corporations Act 2001 CREDITORS STATUTORY DEMAND FOR PAYMENT OF DEBT Burwood Heights Developments Ply Ltd (ACN 129 71] 566) 15] Rooks Road, Vermont, in the State of Victoria (the “Debtor Company”) ‘The Debtor Company owes Robext Long af level 6, 10 Help Street, Chatswood, inthe State of New South Wales (the ‘creditor’), $77,500 being the amount of the debt described in the Schedule Attached is the Affidavit of Robert Long, dated 4 October 2012, verifying that the amount is due and payable by the Debtor Company. The creditor requires the Debtor Company, within 21 days after service on the Debtor Company of this demand: a. To pay to the creditor the amount of the debt; or b. To secure or compound for the amount of the debt, to the creditor's reasonable satisfaction ‘The creditor may rely on a failure to comply with this demand within the period for ccomplignce set out in subsection 459F (2) as grounds for an application to a court having, jurisdiction under the Corporauions Act 2001 for the winding wp of the Debtor Company. Section 459G of the Corporations Act 200/ provides that a company served with a demand may apply to a court having jurisdiction under the Corporations Act 2007 for an order setting, the demand aside. An application must be made within 2! days after the demand is served and, within the same period: a. _Anaffidavit supporting the application must be filed with the court; and b. A-copy of the application and a copy of the affidavit snust be served on the person ‘who served the demand. A failure to respond to a statutory demand can have very serious consequences for a company. Jn particular, it may result in the company being placed in liquidation and control of the ‘company passing to the liquidator of the company. 6. The address of the creditor for service of copies of any application and affidavit is Bales & Mackenzie, level 5,95 Queen Street, Melbourne, in the State of VietoriaSCHEDULE Description of the debt Amount of the debt Pee due under clause 4.2 of the agreement between me, Zac $77,500 Monwood and the Debior Company, dated 26 October 2011, in relation to the brokerage of a loan offer in relation to 255 Evans Road, Cranboume, in the State of Victoria Dated: 8 October 2012 signed: oy Ww RO Print name: Bridget O'Kane ‘Capacity: Solicitor for Robert Long. NOTES: 1. The form must be signed by the ereditor or the creditor's solicitor. It may be signed on behalf of s partnership by a partner, and on behalf of a corporation by a director or by the secretary ‘or an exccutive officer of the corporation. 2. The amount of the debt or, if there is more than one debt, the total of the amounts of the debts, must exceed the statutory minimum of $2,000, 3. Unless the debt, or each of the debis, is a judgnent debt, the demand must be accompanied by an affidavit that 4. verifies that the debt, or the total of the amounts of the debts, is due and payable by the company; and b. complies with the rules, 4, A person may make a demand relating to a debt that is owed to the person as assignee. This form was amended in 2006 as part of amendments of the Corporations Regulations 2001. For the period of 12 months after the commencement of those amendments a person may comply with paragraph 4598 (2) (c) of the Corporations Act 2001 in relation to a statutory demand for payment of debt by using: 4. the version of this form that was in force iinmediately before the commencement of the amendments; or b, ths version of the form.ForM7 (ole 52 AFEIDAVIT ACCOMPANYING STATUTORY DEMAND ROBERT LONG Creditor t BURWOOD HEIGHTS DEVELOPMENTS PTY LTD (ACN 129 711 566) Debtor Company |, Robert Long, of fevel 6, 10 Help Street, Chatswood, inthe State of New South, Wales, investment broker, say on oath; 1, Lam the Creditor in respect of a debt of $77,500 owed by the Debtor Company to me, which is for the two fees due under clause 4,2 of the agreement between me, Zac Morwood and the Debtor Company, dated 26 October 2011, in relation to the brokerage of a loan offer in rclation to 255 Evans Road, Cranbourne, in the State of Vietoris 2, As the Creditor, {had the dealings with the Debtor Company that gave rise to the debt and I have inspected sny business records in selation tothe Debtor Company, 3. The debt refereed to in paragraph 1, abova, is due and payable by the Debtor Company. 4. believe that there is no genuine dispute about the existence or the amount ofthe debt SWORN by Robert Long a Su in the ftate of New South Wal this? of Ober 20 Before yf CHABLES WATOACRERT Aw pv crAAbiaw Lee AL Mahe TPONBA waned re fe eonev lio 44 ita Fegel fhofernen Id peo a seememconng steiner nassesaev NRE“Jaa? EXHIBIT NOTE This is the copy of my letter shown to JOSEPH ALESCI at the time of swearing his affidavit before me on /2. December 2012 meaning of the Legal Profession Act 2004) Suite 6,560 bensclale Sr eer, fhe lborujr nk@ ubanlawgroup Mr. Kieren Mihaly, 5 November 2012 EALES & MACKENZIE Level 5, 95 Queens Street MELBOURNE 3000 By Via Email Dear Mr. Milhaly RE: Robert Long v Burwood Heights Developments Pty Ltd and ACN129 889 890 Pty Ltd I refer to your letter of 30 October 2012 Although marked without prejudice, presumably on the basis of the offer of settlement, it contains material which is not protected by privilege. You ought to be aware of the meaning of "no genuine dispute” in corporation's lav. Itis an objective test. The affidavits accompanying the statutory demands contain a blatant ie presumably to improperly invoke the winding up jurisdiction and fling a false affidavit by deposing that there is “no genuine dispute". Your firm, who ought to be aware of the consequences, have aided and abetted an abuse of process of the court. On our instructions, quite apart from your client's apparent orchestration of the physical intimidation of witnesses, you seem to have no compunctions about participating in an abuse of the process of the court. You leave us with no choice but to take any and all necessary steps to hold your firm liable and accountable for its delinquent conduct in this matter including its partners and relevant employee solicitors. Kindly take notice thet In B & M Quality Constructions Pty Ltd v Buyrite Steel Supplies Pty Ltd (1994) 15 ACSR 433 at 435-6; 13 ACLC 88 the court identified the purpose of the requirement in the rules that the person making the affidavit depose to his or her belief that there is no genuine dispute, The purpose is to advance the public interest by “filtering out cases in which there is such a dispute, so, a8 to prevent such cases from reaching the court on such an application as the See also Kezarne Pty Lid present, with a consequent waste of time and resources ALLMAlls MORNINGTON 7254 MAINST MORNANGTCRS | MELECURNE 259 ST LO4n 1/2 GUE APPONINENT@ urbaniawgroup v Sydney Asbestos Removal Services Pty Ltd (1998) 29 ACSR 11 at 18; 16 ACLC 1609 ; W & F Lechner Pty Ltd v Drummond & Rosen Pty Ltd (2001) 38 ACSR 42; [2001] NSWSC 275 at [70] Further, in Perlake Pty Ltd v Finance & Mortgage Corporation (NSW) Pty Ltd (1997) 18 ACLC 76 McLaughlin M (as his Honour then was) held that service of the statutory demand on the company for the same alleged debt that was the subject of separate proceedings against two individuals was said to be an abuse of process and some other reason for setting aside the demand under s 459J (1) (b). The Local Court proceedings had been instituted prior to the statutory demand against Mr. and Mrs, Gray personally for the same amount which the defendant then claimed against Perlake Pty Ltd by the statutory demand. McLaughlin M said: "That fact alone would seem to suggest that the statutory demand and any attempts grounded upon that demand to wind up the present plaintiff would constitute an abuse of process. | consider that the concurrency of the Local Court proceedings together with the service of the statutory demand constitutes some other reason which would entitle the Court to set aside the demand under section 459J (1).” His Honour noted that the existence of the Local Court proceedings must also have a bearing upon the legitimacy of the statement contained in the affidavit accompanying the statutory demand. Mclaughlin M sai: “She, as a director of the defendant company, must be taken to know that the defendant company had on foot at the time when the demand was served proceedings in the Local Court of New South Wales at North Sydney claiming the ‘same amount of money not from the company Perlake Ply Limited but from the two individuals Mr. and Mrs. Gray. In those circumstances I do not see how that deponent can possibly have been in a position to state that to the best of her knowledge and belief there was no genuine dispute about the existence of the debt.” ALLA, MORNINGTON 2254 UANYST MORINGTON | MELBOURNE 250ST LDA RO. VELEGURNE i” APFONTEIT. 76 0088 Wu MURBANLAWGROURCOMAY | £ SIFOSUREN LAN -SAATING THETRACTICEOF ALEC PREIPAL JOSEPHALESE( ABN:@ urbanlawgroup Although the facts of the case are different, the issue is the same. Finally, my clients’ director, Ms. Santoso has instructed that the company's registered office was vacated on or about the end of July 2012. The office would have appeared vacant to any person attending, let alone a process server. Perhaps this is the reason why you refused to provide me with affidavits of service. Therefore neither company received notice of a statutory demand. | refer you to the case of Managraviti Pty Ltd, Joe V Lumley Insurance Finance Ltd [2010] NSWSC 61. ‘The case considers "some other reason" for setting aside a demand, S459J (1) (b) Corporations Law. The facts are very similar to those in this matter in that the demand was served on the registered office of the debtor but did not come to the attention of the debtor prior to the expiry of the of the statutory period for filing an originating motion to set aside the demand. His Honour, Palmer J, at Para 14 states: “in my opinion those circumstances attract the principle of lack of fair notice... - they fail within the provisions of s459J(1)(b) in that they constitute “some other reason why the demand should be set aside” and at 19; "it is too high a price to pay for an innocent, if neglectful, failure to notify a change of registered office promptly that the plaintif be precluded from opposing the Statutory Demand”. lt appears that there is nothing your client and presumably you will not do in an effort to thwart due process and have the matter dealt with by a Judge in court. I refer to the wel! documented attempt by your client to physically intimate my clients, which | and Mr. Andrew Bell have well documented. And now the false deposition by your client, that there is no genuine dispute as to the debt. Nothing could be further from the truth2 urbanlawgroup LAWYERS 2 CONSULTANTS You are presumed to know the law. Unless you agree to immediately discontinue the winding up of the companies, we shall take ali necessary steps to bring this matter before the Court and expose the extraordinary misconduct of your olient ALL MAIL MOROIIIGTON 928 INST MORNINGTON MELBOURNE 2£05TIdLDA RD HELAQUENE OY APPOINTED WIUNWURBANLAUCROUPCOMAL | E NFOSUSEAVEAWCASUREOM AL 1 T ODEEO ABA (F-05575 0058