1. These reasons are provided pursuant to a request by the solicitors for the First Respondent (HOW).

2. The proceeding came before me for hearing on 26 May 1999 following an unsuccessful small claim mediation. Subsequently, the proceeding was adjourned for further directions before me on 22 June 1999. However, first it was necessary for me to determine when the 90 day period by the end of which HOW, being the insurer, was required to determine its liability, commenced and thereby expired.

3. It is helpful to set out a chronology of the relevant correspondence and the associated submissions as presented by both parties:

22 February 1999 Mr Tamburro sent a detailed letter to HOW by facsimile setting out details of the alleged defects and requesting them to rectify those defects. Mr Tamburro said he believed this facsimile constituted a claim and was the date from which the 90 days should run.

1 March 1999 HOW responded by letter advising they had been in contact with the Builder and that in the event the builder failed to contact Mr Tamburro within 10 days he should refer the matter back to HOW and submit a claim form. In the last paragraph of that letter HOW formally denied liability and advised Mr Tamburro of his appeal rights to VCAT.

12 March 1999 HOW received a further facsimile from Mr Tamburro advising he had not heard anything from the builder. This facsimile was accompanied by a completed claim form and it is HOW's submission that this was therefore the date on which the claim was made and the date from which the 90 days should be calculated. Mr Lovett submitted that in completing and lodging the claim form on 12 March 1999, Mr Tamburro had acknowledged the requirement as set out in HOW's letter of 1 March for completion and lodgement of a formal claim form.

6 May 1999´ Initial inspection date advised by HOW but unsuitable for Mr Tamburro.

4. I am satisfied that the facsimile of 22 February 1999 should properly be regarded as no more than a letter of demand and that it did not constitute a formal claim.

5. By its letter of 1 March 1999, HOW made it clear to Mr Tamburro that it would be necessary for a claim form to be completed and lodged in the event the builder failed to contact him within the nominated 10 day period.

6. As at 1 March 1999 HOW had not made a decision as a claim had not been lodged. It is, however, unfortunate that the final paragraph of this letter indicated it was denying liability and setting out Mr Tamburro's appeal rights. Although it is apparently the standard practice of HOW to include such a paragraph in much of its correspondence it serves little purpose other than to confuse the recipient.

7. In lodging the completed claim form on 12 March 1999 Mr Tamburro has accepted and acknowledged that his claim had not been formally made nor received by HOW prior to that date.

8. Although HOW indicated at the hearing it believed the 90 day period, if calculated from 12 March 1999 expired on 12 June 1999, and this was accepted, I calculate the date properly to be 10 June 1999.

9. A claim is not made until a claim form has been completed and lodged. The claim is made on the day it is received by the insurer.

10. In this instance, the claim was made on 12 March 1999 and the 90 day period for determination of its liability by HOW commenced on that date and expired, on 10 June 1999.