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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
James Hardie Former Subsidiaries
(Winding up and Administration)
Bill 2005
Contents
Page
Part 1 Preliminary
1 Name of Act 2
2 Commencement 2
3 Principal objects of Act 2
4 Definitions 3
5 Extraterritorial operation of Act 8
6 Construction of legislation so as not to exceed legislative
power 9
7 Act to bind State and other jurisdictions 10
Part 2 Establishment of SPF
8 SPF may be treated as charitable trust 11
9 Application of law of charitable trusts to SPF 11
10 Part does not alter law of charitable trusts generally 12
James Hardie Former Subsidiaries (Winding up and Administration) Bill 2005
Contents
Page
Part 3 Limitations on corporate restructuring
Division 1 Interpretation
11 Definitions 13
Division 2 Registered offices and Member Registers
12 Registered offices to be within the State 13
13 Member Register to be within the State 14
14 Orders to relocate registered office or Member Register
to the State 14
Division 3 Transfers of shares by relevant companies
15 Certain transfers of shares in liable entities prohibited 15
16 Orders requiring transfer of shares in liable entities 15
Division 4 Directors of relevant companies
17 Minister may order directors of relevant companies to vacate
office 16
Division 5 Expiry of Part
18 When Part expires 17
Division 6 Displacement of Corporations legislation
19 Displacement of certain provisions of Corporations legislation17
Part 4 Winding up of liable entities
Division 1 General
20 Winding up period 19
21 Winding up under this Part 19
Division 2 Management of liable entities
22 Management during winding up period 20
23 Conduct of business during winding up period 20
24 Directions from SPF trustee 21
25 SPF trustee to provide management services 22
26 Notification that liable entity under NSW administered
winding up 23
27 Liable entity may continue to trade while insolvent 23
28 Deregistration of liable entities 23
Division 3 Accounts
29 Funds to be paid into special accounts 23
Contents page 2
James Hardie Former Subsidiaries (Winding up and Administration) Bill 2005
Contents
Page
Division 4 Insurance
30 Entitlements to proceeds of contracts of insurance 25
Division 5 Making and payment of claims
31 Claims that may be made during the winding up period 26
32 Kinds of claims that are payable 27
33 Determination of whether sufficient funds 28
34 Payments during period of sufficient funds 29
35 SPF trustee may apply to Supreme Court if insufficient
funds 29
36 Payments made by SPF directly to claimants 32
Division 6 Reporting requirements, information and
assistance
37 Winding up accounts 33
38 Inspection of books 34
39 Assistance from officers of liable entity 34
40 Minister may exercise SPF trustee's functions under
the Division 35
41 Reports to Minister 35
Division 7 Removal of directors of liable entities
42 Supreme Court may order removal of directors 35
Division 8 Completion of winding up
43 Interpretation 36
44 Duty of SPF trustee after finalisation day 37
45 Powers of SPF trustee after finalisation day 37
46 Date for proof of claims 37
47 Proof of claims 38
48 Formal proof of claims 38
49 Costs of proof 38
50 Priority payments 38
51 Orders 39
52 Deregistration of liable entity 39
Division 9 Enforcement
53 Meaning of "authorised applicant" 39
54 Enforcement of provisions of this Part 40
55 Advice or directions concerning provisions of this Part 40
56 Supreme Court may request non-NSW court or tribunal
to act in its aid 42
57 Notice requirement for certain proceedings 42
Contents page 3
James Hardie Former Subsidiaries (Winding up and Administration) Bill 2005
Contents
Page
58 Right of Minister to intervene in proceedings 43
59 Protection for exercise of certain functions during winding
up period 43
Division 10 Displacement of Corporations legislation
60 Displacement of certain provisions of the Corporations Act 44
Part 5 Miscellaneous
61 Holder of office not affected by appointment as director of
SPF trustee 47
62 This Act does not create liability for personal asbestos
claims 47
63 Exemption from State tax 47
64 Tabling of copies of Final Funding Agreement and Related
Agreements 47
65 Delegation 48
66 Service of documents 48
67 Offences by corporations 49
68 Nature of proceedings for offences 49
69 Regulations 49
70 Repeal of James Hardie Former Subsidiaries (Special
Provisions) Act 2005 50
71 Savings, transitional and other provisions 50
72 Amendment of Subordinate Legislation Act 1989 No 146 50
Schedule 1 Savings, transitional and other provisions 51
Schedule 2 Amendment of Subordinate Legislation Act
1989 54
Contents page 4
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2005
New South Wales
James Hardie Former Subsidiaries
(Winding up and Administration)
Bill 2005
Act No , 2005
An Act to facilitate funding by James Hardie Industries NV of compensation claims
against certain former subsidiaries of the James Hardie corporate group for
asbestos-related harm and to provide for the winding up of those former subsidiaries;
and for other purposes.
See also James Hardie (Civil Liability) Act 2005 and James Hardie (Civil Penalty
Compensation Release) Act 2005.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
James Hardie Former Subsidiaries (Winding up and Administration)
Clause 1 Bill 2005
Part 1 Preliminary
The Legislature of New South Wales enacts:
Part 1 Preliminary
1 Name of Act
This Act is the James Hardie Former Subsidiaries (Winding up and
Administration) Act 2005.
2 Commencement
(1) This Act commences on a day or days to be appointed by proclamation,
except as provided by this section.
(2) Part 2 is taken to have commenced on the day on which the Bill for this
Act was first introduced into Parliament.
(3) Clause 3 of Schedule 1 commences on the date of assent to this Act.
Note. Clause 3 of Schedule 1 provides that any trust fund established as
referred to in section 8 during or after the introduction day but before the assent
day is taken to have been validly established for the purposes of the law of the
State.
3 Principal objects of Act
(1) The principal objects of this Act are as follows:
(a) to set up a State scheme for the winding up and other external
administration over an extended period of certain companies that
were formerly within the James Hardie corporate group,
(b) to ensure that not only present, but also future, liabilities of those
companies in respect of personal injury or death of persons
arising from exposure to any asbestos or asbestos products that
were mined, manufactured, sold, distributed or used by those
companies are dealt with:
(i) in accordance with the Final Funding Agreement, and
(ii) so that preference is given to those claims over other
claims which are deferred to the future, and
(iii) in a manner that recognises that exposure to such asbestos
or asbestos products, or personal injury or death arising
from such exposure, may occur for an extended period into
the future.
(2) To achieve the objects set out in subsection (1), this Act displaces
certain provisions of the Corporations Act and includes provisions for
the establishment of a trust fund and the administration of the
companies concerned during the winding up periods for the companies
that are apposite to the unique circumstances of the winding up and
administration of the companies.
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James Hardie Former Subsidiaries (Winding up and Administration)
Clause 4
Bill 2005
Preliminary Part 1
4 Definitions
(1) In this Act:
ABN 60 means the company registered under the Corporations Act
immediately before the introduction day as ABN 60 Pty Limited (ACN
000 009 263) that was formerly called James Hardie Industries Limited,
and includes any successor to or continuation of that company.
ABN 60 Foundation means the company registered under the
Corporations Act immediately before the introduction day as ABN 60
Foundation Limited (ACN 106 266 611), and includes any successor to
or continuation of that company.
Amaba means the company registered under the Corporations Act
immediately before the introduction day as Amaba Pty Limited (ACN
000 387 342) that was formerly called Jsekarb Pty Limited, and includes
any successor to or continuation of that company.
Amaca means the company registered under the Corporations Act
immediately before the introduction day as Amaca Pty Limited (ACN
000 035 512) that was formerly called James Hardie & Coy Pty
Limited, and includes any successor to or continuation of that company.
assent day means the day on which this Act received the Royal Assent.
claim means any claim, demand, action, cause of action or proceedings
(whether based in tort, contract, under legislation or otherwise).
claims processing expenses of a liable entity means any of the
following incurred by the entity (whether before or during the winding
up period for the entity as provided by Part 4) in connection with the
management of claims made against the entity:
(a) expenses, charges or other costs for the provision of legal
services to the entity,
(b) expenses, charges or other costs for the provision of expert
evidence or for the provision of other professional advice to the
entity,
(c) expenses, charges or other costs arising out of proceedings in a
court or other tribunal or the use of any structured negotiation
process for the settlement of claims (including mediation,
conciliation or arbitration),
but does not include any interest or legal costs payable by the entity to
a claimant under a final judgment or binding settlement in respect of a
proven personal asbestos claim or proven personal asbestos
contribution claim.
Compensation Foundation means the company registered under the
Corporations Act immediately before the introduction day as the
Medical Research and Compensation Foundation (ACN 095 924 137),
and includes any successor to or continuation of that company.
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James Hardie Former Subsidiaries (Winding up and Administration)
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Part 1 Preliminary
concurrent wrongdoer, in relation to a personal asbestos claim or other
claim, means a person who is one of two or more persons whose acts or
omissions (or act or omission) caused, independently of each other or
jointly, the damage or loss that is the subject of the claim.
contravene includes fail to comply with.
Corporations Act means the Corporations Act 2001 of the
Commonwealth.
Corporations legislation means the Corporations legislation to which
Part 1.1A of the Corporations Act applies.
damages includes any form of monetary compensation.
exercise a function includes perform a duty.
Final Funding Agreement means the deed entitled "A deed in respect
of a Final Funding Agreement in respect of the provision of long term
funding for compensation arrangements for certain victims of
Asbestos-related diseases in Australia" that was entered into by the
State, James Hardie Industries NV and LGTDD Pty Limited (ACN 116
110 948) on 1 December 2005, as in force from time to time.
finalisation day, in relation to a liable entity, means the finalisation day
in relation to the entity within the meaning of section 43.
function includes a power, authority or duty.
general law means the common law and equity.
insurance proceeds right means any right of a person to the proceeds
(or part of the proceeds) of a contract of insurance or re-insurance of a
liable entity that is conferred by or under section 30.
introduction day means the day on which the Bill for this Act was first
introduced into Parliament.
James Hardie Industries NV means the foreign company incorporated
in the Netherlands registered under the Corporations Act immediately
before the introduction day as James Hardie Industries NV (ARBN 097
829 895), and includes such successors to or continuations of that
company, or other entities having obligations under the Final Funding
Agreement, as may be prescribed by the regulations.
legislation includes:
(a) any statute of a legislature (whether enacted or made in Australia
or elsewhere), and
(b) any proclamation, regulation, rule, by-law, order or any other
kind of subordinate legislation (however described) made under
the authority of a statute (whether enacted or made in Australia
or elsewhere).
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James Hardie Former Subsidiaries (Winding up and Administration)
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Bill 2005
Preliminary Part 1
liable entity means each of the following:
(a) ABN 60,
(b) Amaba,
(c) Amaca.
management of claims includes the handling, finalisation or payment of
such claims.
Member Register of a company means a register of members of the
company kept under Chapter 2C of the Corporations Act.
MRCF Investments means the company registered under the
Corporations Act immediately before the introduction day as MRCF
(Investments) Pty Limited (ACN 095 926 837), and includes any
successor to or continuation of that company.
operating expenses of a liable entity:
(a) means any expenses, charges or other costs (including taxes and
duties), other than claims processing expenses, incurred by the
entity in carrying on its business (whether before or during the
winding up period for the entity as provided by Part 4), and
(b) includes any expenses, charges or other costs, other than claims
processing expenses, incurred by the entity (including costs
awarded against the entity) in connection with the making of an
application to the Supreme Court under a provision of this Act.
payable claimant of a liable entity means any person to whom the entity
has incurred a payable liability.
payable liability of a liable entity means a liability of the entity to pay
any of following:
(a) a proven personal asbestos claim made against the entity in an
Australian court or other Australian tribunal, but only to the
extent that the exposure to asbestos or asbestos products to which
the claim relates occurred wholly within the territorial limits of
Australia,
(b) a proven personal asbestos contribution claim made against the
entity in an Australian court or other Australian tribunal, but only
to the extent that the exposure to asbestos or asbestos products to
which the claim relates occurred wholly within the territorial
limits of Australia,
(c) a pre-commencement claim against the entity,
(d) an operating expense of the entity,
(e) a claims processing expense of the entity,
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James Hardie Former Subsidiaries (Winding up and Administration)
Clause 4 Bill 2005
Part 1 Preliminary
(f) a claim for the payment of an insurance proceeds right that is
declared to be a payable liability by regulations made for the
purposes of section 30,
(g) an amount in respect of which the SPF trustee has a right to be
indemnified by the entity under section 36 (2) (b),
(h) a statutory recovery claim against the entity.
Note. Section 32 (2) of this Act provides that certain proven personal asbestos
claims made against a liable entity may not be paid during its winding up period
if the claimant has already received compensation for the personal injury or
death to which the claim relates from a specified person.
personal asbestos claim against a liable entity or concurrent wrongdoer
means a claim by any of the following persons for damages (whether
arising before, during or after the assent day) in respect of personal
injury or death arising from exposure to any asbestos or asbestos
products that were mined, manufactured, sold, distributed or used by or
on behalf of the liable entity or concurrent wrongdoer (as the case may
be):
(a) the person who sustains the personal injury,
(b) the personal legal representative of a deceased person who
sustained the injury or died as a result of the injury,
(c) a relative of a deceased person who sustained the injury or died
as a result of the injury,
and includes such a claim against a liable entity or concurrent
wrongdoer pursuant to the joinder of the liable entity or concurrent
wrongdoer as a party to proceedings.
Note. Part 4 of the James Hardie (Civil Liability) Act 2005 provides that Amaca
is liable for certain personal asbestos claims against Marlew Mining Pty Limited
in connection with its asbestos mining operations in Baryulgil. That Part also
provides that the claims for which Amaca is liable are to be treated as personal
asbestos claims against Amaca for the purposes of this Act.
personal asbestos claimant means a person who has, or may at any time
in the future have, a personal asbestos claim.
personal asbestos contribution claim against a liable entity means any
claim against the entity by a concurrent wrongdoer for contribution
(whether arising before, during or after the assent day) in respect of a
personal asbestos claim that has been made against the wrongdoer.
power includes an authority.
pre-commencement claim against a liable entity means any claim that
was made or brought in legal proceedings commenced before
1 December 2005.
proven personal asbestos claim against a liable entity means a personal
asbestos claim against the entity in respect of which:
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James Hardie Former Subsidiaries (Winding up and Administration)
Clause 4
Bill 2005
Preliminary Part 1
(a) a final judgment has been entered by a court or other tribunal
against the entity, or
(b) a binding settlement has been entered into by the entity,
but only to the extent that the judgment or settlement gives rise to a
liability of the entity (including any liability to pay damages, interest or
legal costs to the claimant).
Note. Part 4 of the James Hardie (Civil Liability) Act 2005 provides that Amaca
is liable for certain personal asbestos claims against Marlew Mining Pty Limited
in connection with its asbestos mining operations in Baryulgil. That Part also
provides that claims for which Amaca is liable and in respect of which final
judgment has been entered or a binding settlement entered are to be treated as
proven personal asbestos claims against Amaca for the purposes of this Act.
Section 32 (2) of this Act provides that certain proven personal asbestos claims
made against a liable entity may not be paid during its winding up period if the
claimant has already received compensation for the personal injury or death to
which the claim relates from a specified person.
proven personal asbestos contribution claim against a liable entity
means a personal asbestos contribution claim against the entity by a
concurrent wrongdoer in respect of which:
(a) a final judgment has been entered by a court or other tribunal
against the entity, or
(b) a binding settlement has been entered into by the entity,
but only to the extent that the judgment or settlement gives rise to a
liability of the entity (including any liability to pay damages, interest or
legal costs to the claimant).
Related Agreement means any agreement as in force from time to time
that is entered into (whether before, during or after the assent day) as
contemplated by the terms of the Final Funding Agreement.
SPF means the trust fund established as referred to in section 8 or, if that
trust fund is terminated, such other trust fund as may be prescribed by
the regulations.
SPF trustee means the person who is the trustee of the SPF from time
to time.
statutory recovery claim against a liable entity means any of the
following claims:
(a) a claim against the entity under section 8E of the Workers'
Compensation (Dust Diseases) Act 1942 for reimbursement of
compensation paid or payable by the Workers' Compensation
(Dust Diseases) Board,
(b) any other claim against the entity for the payment of
compensation, or the reimbursement of compensation paid,
under a statute enacted in Australia in circumstances of a kind
prescribed by the regulations.
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James Hardie Former Subsidiaries (Winding up and Administration)
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Part 1 Preliminary
the State means the State of New South Wales.
transfer of a share includes:
(a) an assignment (whether or not for consideration) of the share, and
(b) an assignment or transfer, or the creation, of any legal or
beneficial interest (or both) in the share.
winding up period for a liable entity--see section 20.
(2) In this Act, the following terms have the meanings given in section 9 of
the Corporations Act:
ACN
ARBN
ASIC
books
company
constitution
contributory
director
foreign company
insolvent
member
negotiable instrument
officer
public document
registered company auditor
registered office
(3) In this Act, a reference to winding up of a liable entity includes a
reference to any scheme of arrangement, receivership or other form of
external administration of the liable entity (including, without
limitation, the administration of a liable entity by the SPF trustee and
the Minister under this Act).
(4) If this Act provides for an event or other thing to occur on a particular
day, that event or thing is taken to occur at the beginning of that day.
(5) Notes included in this Act do not form part of this Act.
5 Extraterritorial operation of Act
(1) It is the intention of the Parliament of New South Wales that the
operation of this Act should, as far as possible, include operation in
relation to the following:
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James Hardie Former Subsidiaries (Winding up and Administration)
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Bill 2005
Preliminary Part 1
(a) things situated in or outside the territorial limits of the State,
(b) acts, transactions and matters done, entered into or occurring in
or outside the territorial limits of the State,
(c) things, acts, transactions and matters (wherever situated, done,
entered into or occurring) that would, apart from this Act, be
governed or otherwise affected by the law of another State, a
Territory, the Commonwealth or a foreign country.
(2) Without limiting subsection (1), it is the intention of the Parliament of
New South Wales that the provisions of this Act have an operation in
relation to the things, acts, transactions and matters referred to in that
subsection even if the rules of private international law (whether at
general law or as provided by legislation) would require the application
of a law other than this Act instead of the provisions of this Act.
6 Construction of legislation so as not to exceed legislative power
(1) Unless a contrary intention appears, if a provision of this Act or an
instrument made under this Act:
(a) would, apart from this section, have an invalid application, but
(b) also has at least one valid application,
it is the intention of the Parliament of New South Wales that the
provision is not to have the invalid application, but is to have every valid
application.
(2) Despite subsection (1), the provision is not to have a particular valid
application if:
(a) apart from this section, it is clear, taking into account the
provision's context and the purposes or objects underlying this
Act, that the provision was intended to have that valid application
only if every invalid application, or a particular invalid
application, of the provision had also been within the legislative
power of the Parliament of New South Wales, or
(b) the provision's operation in relation to that valid application
would be different in a substantial respect from what would have
been its operation in relation to that valid application if every
invalid application of the provision had been within the
legislative power of the Parliament of New South Wales.
(3) Subsection (2) does not limit the cases in which a contrary intention
may be taken to appear for the purposes of subsection (1).
(4) This section is in addition to, and not in derogation of, section 31 of the
Interpretation Act 1987.
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James Hardie Former Subsidiaries (Winding up and Administration)
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Part 1 Preliminary
(5) In this section:
application means an application in relation to:
(a) one or more particular persons, things, matters, places,
circumstances or cases, or
(b) one or more classes (however defined or determined) of persons,
things, matters, places, circumstances or cases.
invalid application, in relation to a provision, means an application
because of which the provision exceeds the legislative power of the
Parliament of New South Wales.
valid application, in relation to a provision, means an application
which, if it were the provision's only application, would be within the
legislative power of the Parliament of New South Wales.
7 Act to bind State and other jurisdictions
(1) This Act binds the State and, in so far as the legislative power of the
Parliament of New South Wales permits, the other States, the Territories
and the Commonwealth.
Note. Section 21 (1) of the Interpretation Act 1987 defines the term person to
include a body politic.
(2) Without limiting subsection (1), this Act has effect despite any privilege
or immunity of the Crown in any of its capacities.
(3) This Act does not make any State or Territory, the Commonwealth, or
the Crown in any of its capacities, liable to be prosecuted for an offence.
(4) A reference in this section to a State, Territory or the Commonwealth
includes a reference to the Government of the State, Territory or
Commonwealth.
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Clause 8
Bill 2005
Establishment of SPF Part 2
Part 2 Establishment of SPF
8 SPF may be treated as charitable trust
(1) For the avoidance of doubt, it is declared that a trust fund (the SPF)
established by James Hardie Industries NV as contemplated by the Final
Funding Agreement is a valid charitable trust for the purposes of the law
of the State if:
(a) the principal purposes for which the trust fund is established
include the following purposes:
(i) the purpose of receiving and providing funding for the
payment, and paying, of payable liabilities of any liable
entity,
(ii) the purpose of providing services with respect to the
management and resolution of claims made against any
liable entity, and
(b) the instrument that establishes the trust fund makes provision for
the trustee of the trust fund to be a company registered under the
Corporations Act that is taken under section 119A of that Act to
be registered in New South Wales.
(2) Without limiting subsection (1), any of the purposes referred to in
subsection (1) (a) is to be treated as being a charitable purpose for the
purposes of the Charitable Trusts Act 1993 and the general law relating
to charitable trusts.
9 Application of law of charitable trusts to SPF
(1) The Charitable Trusts Act 1993 and the general law relating to
charitable trusts apply to the SPF, subject to the following
modifications:
(a) the Supreme Court may not, despite section 6 of the Charitable
Trusts Act 1993 or any other law, grant leave to any person (other
than the SPF trustee or James Hardie Industries NV) to bring
charitable trust proceedings or any other proceedings relating to
the administration of the SPF,
(b) charitable trust proceedings or any other proceedings relating to
the administration of the SPF may only be brought by:
(i) the Attorney General (whether with or without a relator),
or
(ii) the SPF trustee or James Hardie Industries NV, but only
with the leave of the Supreme Court under section 6 of the
Charitable Trusts Act 1993,
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Part 2 Establishment of SPF
(c) for the purposes of determining whether the trust property of the
SPF should be applied cy pres, it is to be presumed for all
purposes that the only general charitable intention with which the
trust property was given was for making or assisting the payment
of compensation to personal asbestos claimants having claims
against a liable entity,
(d) a scheme for the administration of the SPF under Part 4 of the
Charitable Trusts Act 1993 may be established subject to the
following provisions:
(i) the scheme may only be established with the consent of the
SPF trustee and James Hardie Industries NV,
(ii) section 14 of that Act does not operate to limit the
circumstances in which such a scheme may be established,
(iii) section 18 of that Act does not enable a person other than
the SPF trustee or James Hardie Industries NV to bring an
appeal under that section.
(2) Accordingly, no court or other tribunal has any jurisdiction or power to
entertain charitable trust proceedings or any other proceedings relating
to the administration of the SPF, or to grant relief in any such
proceedings, unless the proceedings have been brought as provided by
subsection (1) (b) by the Attorney General (whether with or without a
relator), the SPF trustee or James Hardie Industries NV.
(3) In this section, charitable trust proceedings has the same meaning as it
has in Part 2 of the Charitable Trusts Act 1993.
10 Part does not alter law of charitable trusts generally
Nothing in this Part authorises or permits any person other than James
Hardie Industries NV to establish a charitable trust for a purpose that is
not a charitable purpose at general law.
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Bill 2005
Limitations on corporate restructuring Part 3
Part 3 Limitations on corporate restructuring
Division 1 Interpretation
11 Definitions
In this Part:
hold a share includes hold a share on trust or for the benefit of another
person.
relevant company means any of the following:
(a) any liable entity,
(b) the Compensation Foundation,
(c) MRCF Investments,
(d) the ABN 60 Foundation.
Division 2 Registered offices and Member Registers
12 Registered offices to be within the State
(1) A relevant company must not, without the written approval of the
Minister:
(a) change the address of its registered office to a location that is
outside of the territorial limits of the State, or
(b) have its registered office at a location that is outside of the
territorial limits of the State.
Maximum penalty: 1,000 penalty units.
Note. If a relevant company contravenes this subsection, section 67 operates
to make each person who is a director of the company or who is concerned in
the management of the company liable for the offence if the person knowingly
authorised or permitted the contravention.
(2) It is taken to be a provision of the constitution of each relevant company
that:
(a) the registered office of the company be located within the
territorial limits of the State unless the Minister gives written
approval for it to be located outside the territorial limits of the
State, and
(b) the address of its registered office not be changed to a location
that is outside of the territorial limits of the State without the
written approval of the Minister.
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Part 3 Limitations on corporate restructuring
13 Member Register to be within the State
(1) A relevant company must not, without the written approval of the
Minister:
(a) change the location where any Member Register of the company
is kept to a location that is outside of the territorial limits of the
State, or
(b) keep any Member Register of the company at a location that is
outside of the territorial limits of the State.
Maximum penalty: 1,000 penalty units.
Note. If a relevant company contravenes this subsection, section 67 operates
to make each person who is a director of the company or who is concerned in
the management of the company liable for the offence if the person knowingly
authorised or permitted the contravention.
(2) It is taken to be a provision of the constitution of each relevant company
that:
(a) any Member Register of the company be kept at a location within
the territorial limits of the State unless the Minister gives written
approval for it to be kept at a location outside the territorial limits
of the State, and
(b) the location where a Member Register is kept not be changed to
a location that is outside of the territorial limits of the State
without the written approval of the Minister.
14 Orders to relocate registered office or Member Register to the State
(1) The Minister may, by order served on a relevant company, instruct the
company and its directors and other officers to take such steps as are
necessary under the Corporations Act:
(a) to change the address of its registered office to a location that is
within the territorial limits of the State within the period specified
in the order, and
(b) to change the location where any Member Register of the
company is kept to a location that is within the territorial limits of
the State within the period specified in the order.
(2) A relevant company on which an order made under subsection (1) is
served must comply with the order.
Maximum penalty: 1,000 penalty units.
Note. If a relevant company contravenes this subsection, section 67 operates
to make each person who is a director of the company or who is concerned in
the management of the company liable for the offence if the person knowingly
authorised or permitted the contravention.
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Division 3 Transfers of shares by relevant companies
15 Certain transfers of shares in liable entities prohibited
(1) A relevant company must not transfer to any person any shares that it
holds in a liable entity without the written approval of the Minister.
Maximum penalty: 1,000 penalty units.
Note. If a relevant company contravenes this subsection, section 67 operates
to make each person who is a director of the company or who is concerned in
the management of the company liable for the offence if the person knowingly
authorised or permitted the contravention.
(2) Without limiting subsection (1), an order of the Minister under section
16 instructing a relevant company and its directors and officers to
transfer shares constitutes written approval of the Minister for the
purposes of that subsection for the transfer of those shares.
(3) It is taken to be a provision of the constitution of each liable entity that
shares in the entity cannot be transferred without the written approval of
the Minister.
16 Orders requiring transfer of shares in liable entities
(1) The Minister may, by order served on a relevant company, instruct the
company and its directors and other officers to take such steps as are
necessary under the Corporations Act and any other relevant law
(whether written or unwritten) to transfer any or all of the shares that it
holds in a liable entity to the person or persons specified in the order
during the day or within the period specified in the order.
(2) A relevant company on which an order made under subsection (1) is
served must comply with the order.
Maximum penalty: 1,000 penalty units.
Note. If a relevant company contravenes this subsection, section 67 operates
to make each person who is a director of the company or who is concerned in
the management of the company liable for the offence if the person knowingly
authorised or permitted the contravention.
(3) If a relevant company holds shares to which an order under subsection
(1) applies on trust or for the benefit of another person, any beneficial
interest of the other person in the shares is extinguished on the transfer
of the shares to the specified person or persons.
(4) Nothing in subsection (3) prevents the Minister from requiring any
shares in a liable entity to be transferred to the SPF trustee to be held in
trust for the purposes of the SPF.
(5) No compensation is payable for any of the following:
(a) the loss of any legal or beneficial interest in shares resulting from
the transfer of the shares in compliance with an order under
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subsection (1) (including the extinguishment of a person's
beneficial interest in shares by operation of subsection (3)),
(b) any costs or other expenses incurred by a person in complying
with an order under subsection (1).
(6) It is taken to be a provision of the constitution of each relevant company
that, if the relevant company and its directors and other officers fail to
comply with an order served on it under subsection (1) by the end of the
day or period specified in the order:
(a) the shares in the liable entity are, by the operation of this
subsection, taken to be transferred to the person or persons
specified in the order at the end of that day or period, and
(b) the order is taken, for all purposes, to constitute a proper
instrument of transfer for those shares.
Division 4 Directors of relevant companies
17 Minister may order directors of relevant companies to vacate office
(1) The Minister may, by order served on a relevant company, direct that:
(a) a specified director of the company ceases to hold office as a
director on the day specified in the order, and
(b) a specified person is appointed instead of the specified director
on that day or a subsequent day specified in the order.
(2) The Minister may not make an order under subsection (1) in respect of
a liable entity if the SPF trustee holds all of the shares in the liable entity
for the purposes of the SPF.
(3) A director of a relevant company in respect of whom an order is made
under subsection (1) must not continue to act as a director of the
company during or after the day specified in the order for the director to
cease to hold office.
Maximum penalty: 1,000 penalty units.
(4) It is taken to be a provision of the constitution of each relevant company
that:
(a) a director in respect of whom an order is made under subsection
(1) ceases to hold office as a director on the day specified in the
order, and
(b) the vacancy in the office may only be filled by a person appointed
by the Minister in an order made under subsection (1), and
(c) this power of appointment has effect despite any other provision
of the constitution of the relevant company.
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(5) A person who, by operation of this section, ceases to hold office as a
director of a relevant company is not entitled to any remuneration or
compensation because of the loss of that office.
Division 5 Expiry of Part
18 When Part expires
The provisions of this Part cease to have effect:
(a) in relation to a relevant company that is a liable entity--at the end
of the day on which the winding up period for that entity ends,
and
(b) in relation to a relevant company that is not a liable entity--at the
end of 1 October 2006.
Division 6 Displacement of Corporations legislation
19 Displacement of certain provisions of Corporations legislation
The provisions of Divisions 25 (and section 67 in its application to
contraventions of those provisions by relevant companies) are declared
to be Corporations legislation displacement provisions for the purposes
of section 5G of the Corporations Act in relation to the provisions of the
Corporations legislation generally.
Note. Chapter 2B of the Corporations Act makes provision with respect to the
registered offices of companies and places of business of companies. See also
section 121 (Registered office) of that Act.
Chapter 2C of the Corporations Act makes provision for the keeping of registers
(including Member Registers) by companies. See, in particular, sections 169
(Register of members), 172 (Location of registers) and 178 (Overseas branch
registers) of that Act.
Chapters 2H and 2J of the Corporations Act make provision with respect to the
issue of shares and transactions affecting share capital.
Part 7.11 of the Corporations Act makes provision with respect to title and
transfer of shares in a company. It includes provisions relating to the proper
instrument of transfer (section 1071B).
Section 5G (5) of the Corporations Act provides that if a provision of a law of a
State or Territory specifically:
(a) authorises a person to give instructions to the directors or other officers
of a company or body, or
(b) requires the directors of a company or body to:
(i) comply with instructions given by a person, or
(ii) have regard to matters communicated to the company or body by
a person, or
(c) provides that a company or body is subject to the control or direction of
a person,
a provision of the Corporations legislation does not:
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(d) prevent the person from giving an instruction to the directors or
exercising control or direction over the company or body, or
(e) prohibit a director from complying with the instruction or direction, or
(f) impose a liability (whether civil or criminal) on a director for complying
with the instruction or direction.
Section 5G (9) of the Corporations Act provides that if a provision of a law of a
State or Territory provides that a provision is included, or taken to be included,
in a company's constitution, the provision is included in the company's
constitution even though the procedures and other requirements of that Act are
not complied with in relation to the provision.
Section 5G (11) of the Corporations Act provides that if a State law declares a
provision of a State law to be a Corporations legislation displacement provision,
any provision of the Corporations legislation with which the State provision
would otherwise be inconsistent does not apply to the extent necessary to avoid
the inconsistency.
However, section 5G (3) of the Corporations Act provides that section 5G will
only apply to a provision of a law of a State or Territory enacted after the
commencement of that Act if a law of the State or Territory declares the
provision to be a Corporations legislation displacement provision for the
purposes of that section.
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Part 4 Winding up of liable entities
Division 1 General
20 Winding up period
(1) For the purposes of this Act, the winding up period for a liable entity
means the period:
(a) commencing on the day on which this section commences, and
(b) ending at the end of the day:
(i) appointed by the Governor under subsection (2) for the
termination of the winding up under this Part, or
(ii) on which the liable entity is deregistered under the
Corporations Act,
whichever first occurs.
Note. Section 28 prevents the making of applications for the deregistration of a
liable entity under the Corporations Act unless the Minister has consented to the
application or the Supreme Court has made an order under section 52 for the
deregistration application to be made.
(2) At any time before the finalisation day in relation to a liable entity, the
Governor may, by proclamation published in the Gazette, fix a day
under subsection (1) (b) (i) for the termination of the winding up of the
liable entity under this Part.
(3) Different days may be fixed for the termination of the winding up of
different liable entities.
(4) The Governor may, by proclamation published in the Gazette, revoke a
proclamation published under subsection (2), in which case the revoked
proclamation is taken never to have been published.
(5) A revoking proclamation has effect only if published before the day
fixed under subsection (2) by the proclamation it revokes.
(6) The revocation of a proclamation published under subsection (2) does
not prevent publication of a further proclamation under that subsection.
21 Winding up under this Part
(1) During the winding up period for a liable entity:
(a) any winding up of the entity is to be conducted only in
accordance with the provisions of this Part, and
(b) no proceedings may be brought or continued in a court or other
tribunal for the winding up of the entity otherwise than in
accordance with the provisions of this Part.
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(2) Nothing in this Part is intended to prevent or limit any liable entity or
any of its directors or other officers from providing assistance to ASIC.
(3) In this section, winding up means any scheme of arrangement,
receivership, winding up or other kind of external administration.
Division 2 Management of liable entities
22 Management during winding up period
Subject to the provisions of Part 3 and this Part, each liable entity is to
be managed during the winding up period for the entity in accordance
with any applicable provisions of the Corporations Act or any other
legislation, the constitution of the entity and the general law.
Note. The provisions of the Corporations Act continue to apply to the liable
entities as a federal law, except to the extent that the operation of the
Corporations Act is displaced by the operation of this Part.
Section 21 provides that a liable entity may only be wound up as provided by
this Part. Section 60 displaces the operation of Chapter 5 (External
administration) and other provisions of the Corporations Act in favour of the
provisions of this Part.
23 Conduct of business during winding up period
(1) Subject to this Part, the powers of each liable entity must be exercised
during the winding up period for the entity so as to:
(a) carry on the business of the entity so far as is necessary or
convenient for the management of claims made against the entity
to ensure that only payable liabilities of the entity are paid in
accordance with the provisions of this Part, and
(b) pay payable liabilities in accordance with the provisions of this
Part, and
(c) apply any funds provided from the SPF only in accordance with
the conditions on which the funding is provided.
Note. Part 2B.1 of the Corporations Act makes provision for the powers of
companies and how they are to be exercised. In particular, section 124 of that
Act provides that a company has the legal capacities and powers of an
individual. However, section 124 (3) of that Act makes it clear that nothing in that
section authorises a company to do an act that is prohibited by a law of a State
or gives a right to a company that a law of a State denies to it.
(2) Without limiting subsection (1), a liable entity may also:
(a) make any compromise or arrangement with personal asbestos
claimants or payable claimants or persons claiming to be such
claimants or having or alleging that they have any personal
asbestos claim or a claim for a payable liability (present or future,
certain or contingent, ascertained or sounding only in damages)
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against the entity or by which the entity may be rendered liable,
and
(b) enforce any calls, liabilities to calls, debts, liabilities capable of
resulting in debts and any claims (present or future, certain or
contingent, ascertained or sounding only in damages) subsisting
or supposed to subsist between the entity and a contributory
(including, without limitation, a concurrent wrongdoer) or other
debtor or person apprehending liability to the entity, and
(c) act as a single claims manager in relation to the management of
claims referred to in paragraph (a) or (b), and
(d) compromise any call, debt, liability or claim referred to in
paragraph (b), and all questions in any way relating to or
affecting the property of the entity or the winding up of the entity
under this Part, on such terms as are agreed, and take any security
for the discharge of, and give a complete discharge in respect of,
any such call, debt, liability or claim, and
(e) do all such other things:
(i) as are necessary for the purposes of exercising a power
under subsection (1) or paragraph (a), (b), (c) or (d) or of
the winding up of the entity under this Part, or
(ii) that the entity is directed, required, authorised or permitted
to do by or under this Part.
(3) An exercise of a power by a liable entity is not invalid merely because
it is exercised in contravention of subsection (1) or (2).
(4) However, nothing in subsection (3) prevents:
(a) the making of an application to the Supreme Court under section
54 for an order to remedy or restrain a contravention of
subsection (1) or (2), or
(b) the Supreme Court from granting any relief under section 54 on
any such application.
24 Directions from SPF trustee
(1) The SPF trustee may, by written order served on a liable entity, direct
the entity to do, or not to do, any thing that the trustee is satisfied is
necessary or appropriate for the winding up of the entity in accordance
with the provisions of this Part or the carrying out of the terms of the
Final Funding Agreement or any Related Agreement (or both).
(2) Without limiting subsection (1), the SPF trustee may direct a liable
entity to enter into arrangements with another or other liable entities for
the pooling of funds of the liable entities and for allocation of the pooled
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funds to payment of payable liabilities of any one or more of those
entities.
(3) However, nothing in this section authorises the SPF trustee to direct a
liable entity to pay proven personal asbestos claims (whether or not
from funds provided from the SPF) in a manner that discriminates
between claimants by reference to the nature or extent of the loss or
damage sustained.
(4) A liable entity is required and authorised to comply with any direction
given to it under an order made under subsection (1) that is served on it.
25 SPF trustee to provide management services
(1) Without limiting section 24, the SPF trustee may, by written order
served on a liable entity, direct the entity:
(a) to utilise such services provided by the SPF trustee in respect of
the management of claims made against the entity (including
acting as a single claims manager in relation to the management
of such claims) as may be specified in the order, or
(b) to utilise such services provided by any other person specified in
the order in respect of the management of claims made against
the entity as may be specified in the order.
(2) Without limiting subsection (1), the SPF trustee may provide such other
services to a liable entity in connection with the winding up of the entity
under this Part as may be agreed by the SPF trustee and the liable entity
from time to time.
(3) A liable entity is required and authorised to comply with any direction
given to it in an order made under subsection (1) that is served on it.
(4) The following are specifically authorised by this Act for the purposes of
the Trade Practices Act 1974 of the Commonwealth and the
Competition Code of New South Wales:
(a) a direction of the SPF trustee given under subsection (1),
(b) any conduct required by or under such a direction,
(c) the entering or making of a contract, agreement, arrangement or
understanding as the result of such a direction,
(d) any conduct authorised or required by or under the terms or
conditions of any such contract, agreement, arrangement or
understanding.
(5) Things authorised to be done by subsection (4) are authorised only to
the extent (if any) that they would otherwise contravene Part IV of the
Trade Practices Act 1974 of the Commonwealth or the Competition
Code of New South Wales.
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26 Notification that liable entity under NSW administered winding up
Each liable entity is authorised and required during the winding up
period for the entity to set out in every public document, and in every
negotiable instrument, of the entity, after the name of the entity where
it first appears, the expression "under NSW administered winding up".
27 Liable entity may continue to trade while insolvent
A liable entity and its directors and other officers are specifically
authorised during the winding up period for the entity to conduct the
business of the entity in the manner directed, required, authorised or
permitted by or under this Part even if:
(a) the entity is insolvent, or
(b) the entity will become insolvent by reason of conducting its
business in such a manner.
28 Deregistration of liable entities
A liable entity, any director, officer or member of such an entity or any
other person may not make an application during the winding up period
for the entity for the deregistration of the entity under the Corporations
Act unless:
(a) the Minister consents to the application, or
(b) the Supreme Court makes an order under section 52 for the
application to be lodged.
Note. Section 52 enables the Supreme Court, on the application of the SPF
trustee, to order a liable entity or its directors to lodge an application for the
deregistration of the entity under the Corporations Act.
Division 3 Accounts
29 Funds to be paid into special accounts
(1) As soon as is reasonably practicable after the commencement of the
winding up period for a liable entity, the entity must establish the
following accounts (which are to be located within the territorial limits
of the State) in one or more authorised deposit-taking institutions:
(a) an account to be known as the "asset realisation account",
(b) an account to be known as the "insurance proceeds account",
(c) an account to be known as the "SPF account",
(d) an account to be known as the "general account".
(2) The following is to be paid into the asset realisation account:
(a) all money received from the sale or other realisation of any asset
(other than a policy of insurance) of the entity that existed
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immediately before the day on which the winding up period for
the liable entity commenced,
(b) all interest received in respect of investment of money in the
account,
(c) all money directed to be paid into the account by or under this or
any other Act.
(3) The following is to be paid into the insurance proceeds account:
(a) all money received from an insurer of the entity in respect of
insurance policies entered into before the day on which the
winding up period for the liable entity commenced (whether by
reason of recovery of amounts payable under insurance policies
or the commutation of the proceeds of such policies) less any
expenses of or incidental to getting in that money,
(b) all interest received in respect of investment of money in the
account,
(c) all money directed to be paid into the account by or under this or
any other Act.
(4) The following is to be paid into the SPF account:
(a) all money received or contributed by the SPF trustee from the
SPF,
(b) all interest received in respect of investment of money in the
account,
(c) all money directed to be paid into the account by or under this or
any other Act.
(5) The following is to be paid into the general account:
(a) all money received by or on account of the entity (other than
money that is required by this section to be paid into the asset
realisation account, insurance proceeds account or SPF account),
(b) all interest received in respect of investment of money in the
account,
(c) all money directed to be paid into the account by or under this or
any other Act.
(6) The SPF trustee may, by order served on a liable entity, direct that
money received by the entity from another liable entity under a pooling
arrangement referred to in section 24 (2) be paid into an account
established under this section.
(7) A liable entity is authorised and required to comply with any direction
given to it in an order made under subsection (6) that is served on it.
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(8) Money held in an account required to be established by a liable entity
under this section may be applied only for the payment of the payable
liabilities of the entity of a kind, and in a manner, that is required,
authorised or permitted by or under this Act.
Division 4 Insurance
30 Entitlements to proceeds of contracts of insurance
(1) The regulations may make provision for or with respect to entitlements
(during the winding up period of any liable entity) under or in relation
to any contract of insurance or re-insurance of the entity entered into
before that period (a relevant insurance contract) or to the proceeds of
any such contract, including without limitation:
(a) the application of the proceeds of a relevant insurance contract
(including, for example, the establishment of a regime for the
application of the proceeds between claimants on a proportionate
or other basis), and
(b) the conferral or extinguishment of rights (or the imposition or
extinguishment of liabilities) in respect of a relevant insurance
contract or the proceeds of such a contract, including (without
limitation) rights or liabilities of any of the following:
(i) the payable claimants of the entity,
(ii) any other persons to whom a liable entity has incurred, or
will incur, liabilities,
(iii) the liable entity itself,
(iv) the insurer.
(2) Without limiting subsection (1), the regulations may:
(a) declare that a right to the payment of the proceeds (or part of the
proceeds) of a relevant insurance contract conferred on a person
is a payable liability for the purposes of this Act, and
(b) provide that any specified provision of the Corporations Act or
any other legislation applies for the purposes of this section with
such modifications (if any) as may be prescribed by the
regulations.
(3) For the avoidance of doubt, it is declared that any regulation made for
the purposes of this section may, if the regulation so provides:
(a) take effect on a day that is earlier than the day on which the
regulation is published in the Gazette, or
(b) apply to transactions, acts, things or other matters arising or
occurring before its commencement.
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(4) The Minister is not to recommend the making of a regulation for the
purposes of this section unless the Minister has received the written
concurrence of the SPF trustee to the making of the regulation.
(5) If regulations made for the purposes of this section apply with respect
to entitlements under or in relation to any relevant insurance contract of
a liable entity or to the proceeds of such a contract (as the case may be):
(a) the entity is authorised and required to apply the proceeds of a
relevant insurance contract only in the manner provided by the
regulations, and
(b) the rights and liabilities of persons under the contract, or in
relation to the proceeds of the contract, are subject to the
provisions of the regulations.
(6) In the event of an inconsistency between the provisions of this section
(including the regulations made under this section) and the provisions
of an approved payment scheme under section 35, the provisions of this
section prevail.
(7) The provisions of this section (including the regulations made under this
section) have effect despite:
(a) the provisions of any contract, arrangement or other agreement to
the contrary, or
(b) any other law (whether written or unwritten), including, without
limitation, the provisions of section 6 of the Law Reform
(Miscellaneous Provisions) Act 1946 and section 601AG of the
Corporations Act.
(8) In this section:
modification includes addition, exception, omission or substitution.
proceeds of a relevant insurance contract means any amount that has
been or is received (or that is receivable or may in the future be
received) by a liable entity from an insurer in respect of a liability to a
third party incurred by the liable entity (whether before or during the
entity's winding up period) for which the liable entity is or was insured
under the relevant insurance contract.
Division 5 Making and payment of claims
31 Claims that may be made during the winding up period
(1) During the winding up period for a liable entity, claims against the
entity may be paid only in the manner permitted by this Part.
(2) During the winding up period for a liable entity, a person cannot begin
or continue with civil proceedings against the entity in a court or other
tribunal unless the proceedings seek to enforce:
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(a) any of the following kinds of claims of the person:
(i) a personal asbestos claim (whether or not a proven
personal asbestos claim),
(ii) a personal asbestos contribution claim (whether or not a
proven personal asbestos contribution claim), or
(b) a payable liability of the entity that was incurred to the person, or
(c) a right of the person against the liable entity (other than a right to
be paid damages or receive other payment).
32 Kinds of claims that are payable
(1) During the winding up period for a liable entity, only payable liabilities
of the entity (other than a liability to pay a claim that is excluded by
subsections (2) and (3)) may be paid (whether by the entity itself or by
the SPF trustee for the entity).
(2) Despite any other provision of this Part or any other legislation or other
law, a proven personal asbestos claim against a liable entity may not be
paid (whether by the entity itself or by the SPF trustee for the entity)
during the winding up period for the entity if:
(a) the claimant has already been paid compensation (whether on the
basis of a cause of action arising at general law, under the
Corporations Act or any other legislation) in respect of the same
personal injury or death that is the subject of the claim, and
(b) the compensation was paid by any of the following:
(i) another liable entity,
(ii) James Hardie Industries NV or any of its controlled
entities,
(iii) any person whose liability to pay the compensation arose
from the person acting in the capacity of a director or other
officer, employee, advisor or agent of a liable entity, James
Hardie Industries NV or any of its controlled entities,
(iv) any other person who has recovered the amount paid in
compensation from an entity or person referred to in
subparagraph (i), (ii) or (iii) pursuant to a legal entitlement
to do so (whether at general law, under legislation or
otherwise), and
(c) the compensation paid to the claimant was paid pursuant to a final
judgment entered by a court or other tribunal, or a binding
settlement entered by a person or entity referred to in paragraph
(b), in circumstances where the compensation was intended to
compensate the claimant fully and finally for the personal injury
or death concerned.
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(3) Despite any other provision of this Part or any other legislation or other
law, statutory recovery claims against a liable entity may only be paid
(whether by the entity itself or by the SPF trustee for the entity) during
the winding up period for the entity:
(a) if the funding set aside under the Final Funding Agreement for
the payment of such claims by the SPF trustee during a financial
year (within the meaning of the Agreement) is or will be
sufficient to cover all claims (whether actual or anticipated)
within the year concerned, or
(b) if such funding will not be sufficient for the financial year
concerned, in accordance with the regulations.
(4) For the purposes of (but without limiting) subsection (3) (b), the
regulations may make provision for or with respect to the following:
(a) the deferral of payments of statutory recovery claims (whether in
whole or in part),
(b) the part payment of statutory recovery claims (whether in whole
or in part),
(c) any other matter concerning the rationing of payments of
statutory recovery claims.
(5) The Minister is not to recommend the making of a regulation for the
purposes of subsection (3) (b) or (4) unless the Minister has received the
written concurrence of the SPF trustee to the making of the regulation.
(6) In this section:
controlled entity of James Hardie Industries NV means a person or
other entity (other than a liable entity or the SPF trustee) that James
Hardie Industries NV is required to include in its consolidated financial
reports for a financial year by the US GAAP or such other generally
accepted accounting principles as may be prescribed by the regulations.
Note. It is intended that the prescription by the regulations of other generally
accepted accounting principles for the purposes of this definition will be
consistent with the terms of the Final Funding Agreement.
US GAAP means the Generally Accepted Accounting Principles in
force from time to time in the United States of America, as developed
by the Financial Accounting Standards Board for the United States.
33 Determination of whether sufficient funds
(1) In determining whether or not there are or will be sufficient funds for
the payment of payable liabilities of a liable entity, regard is to be had
to the amount of funding that is or will be available for the payment of
such liabilities from the SPF as well as from the funds of the entity itself.
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(2) Without limiting subsection (1), regard is to be had to the amount of
funding that is or will be available from the pooling of funds under an
arrangement referred to in section 24 (2).
(3) For the purposes of subsection (1), the amount of funding that is or will
be available for payments to be made directly from the SPF by the SPF
trustee that will operate to discharge the liability of a liable entity to a
claimant is to be taken into account.
34 Payments during period of sufficient funds
If there are sufficient funds to do so, a liable entity (or the SPF trustee
on its behalf) is authorised to pay the payable liabilities of the entity as
and when they fall due for payment, except as otherwise provided by
this Part.
35 SPF trustee may apply to Supreme Court if insufficient funds
(1) Applications to Supreme Court for approved payment scheme orders
The SPF trustee may, with the approval of the Minister, apply to the
Supreme Court for orders under subsection (5) if it appears reasonably
likely that, for a period of time, there will be insufficient funds for all
payable liabilities of a liable entity to be paid in full as and when they
fall due for payment.
(2) Rationing directions from SPF trustee pending application approval
The SPF trustee may, by written order served on a liable entity (a
rationing direction), direct the entity to defer the payment of payable
liabilities (whether in whole or in part) in a manner consistent with the
rationing requirements for a scheme set out in subsection (7) if:
(a) the SPF trustee has sought but not received approval from the
Minister to make an application to the Supreme Court under
subsection (1) in respect of the entity, and
(b) the SPF trustee is satisfied that the insufficiency of funds to pay
the payable liabilities of the entity requires the urgent rationing of
payments pending the receipt of approval from the Minister.
(3) A liable entity is required and authorised to comply with any rationing
direction given to it until the direction ceases to have effect.
(4) Unless the Supreme Court orders otherwise (whether in an application
under this section or under a provision of Division 9) or the rationing
direction is earlier revoked by the SPF trustee, a rationing direction has
effect until the Supreme Court determines the application in respect of
which approval is sought from the Minister.
Note. Division 9 contains provisions that enable certain persons (such as the
Minister) to apply to the Supreme Court for orders to remedy or restrain a
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contravention of this Part (see section 54) or for advice or directions concerning
the operation of this Part (see section 55).
(5) Supreme Court may make orders establishing approved payment
scheme
On any application under subsection (1), the Supreme Court may, if
satisfied that circumstances referred to in subsection (1) exist, make the
following orders:
(a) an order declaring that there will be insufficient funds to pay the
liable entity's payable liabilities in full as and when they fall due
for payment for the period specified by the order (the insufficient
funds period),
(b) an order approving a scheme for the payment by instalments of
the full amount of payable liabilities due, or deferral of payment
of payable liabilities of the entity, during the insufficient funds
period (an approved payment scheme).
(6) In specifying the insufficient funds period, the Supreme Court is to take
into account the anticipated duration of the period before the liable
entity will or is likely to have sufficient funds to pay payable liabilities
in full as and when they fall due for payment instead of paying them by
instalments or deferring payment.
(7) The Supreme Court may not approve a scheme for the payment in
instalments or deferral of payment of payable liabilities of a liable entity
during the insufficient funds period unless the scheme provides for the
following:
(a) the payment in full of the operating expenses and claims
processing expenses of the entity during the period in priority
over payable liabilities of the kind referred to in paragraph (b),
(b) subject to subsection (8)--the payment in instalments of payable
liabilities that are liabilities to pay proven personal asbestos
claims during the period (calculated on an appropriate
proportionate basis among claimants whose claims are payable
when the period commences or become payable during that
period), but not in a manner that discriminates between claimants
by reference to the nature or extent of the loss or damage
sustained,
(c) the deferral during the period of the payment of payable liabilities
that are liabilities to pay proven personal asbestos contribution
claims,
(d) the deferral during the period of the payment of payable liabilities
that are liabilities to pay pre-commencement claims (other than
proven personal asbestos claims).
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(8) The Supreme Court may approve a scheme that takes into account:
(a) any amounts that personal asbestos claimants may receive during
the insufficient funds period under section 30 (including
regulations made for the purposes of that section), and
(b) any payments, or deferral of payments, of payable liabilities
made by a liable entity in accordance with any rationing direction
in force immediately before the application to the Court was
made.
(9) Liable entity and SPF may make payments only in accordance with
approved payment scheme
While an approved payment scheme is in force:
(a) a liable entity is authorised to pay payable liabilities or to refuse
to pay payable liabilities that are deferred, but only to the extent
and in accordance with the terms of the scheme, and
(b) the SPF trustee may make payments under section 36 only to the
extent and in accordance with the terms of the scheme.
(10) Applications to vary or revoke approved payment scheme orders
The SPF trustee may, with the approval of the Minister, apply to the
Supreme Court for an order to revoke or vary any order made under
subsection (5).
(11) On any such application, the Supreme Court may revoke or vary the
order concerned.
(12) Automatic revocation of approved payment scheme by notice
An order under subsection (5) is automatically revoked if the SPF
trustee, with the approval of the Minister, gives the Supreme Court
notice that sufficient funds are or will become available to pay in full
the instalments provided for by the approved payment scheme, the
ongoing operating expenses and claims processing expenses of the
liable entity and any deferred claims.
(13) Effect of approved payment scheme and rationing directions
Despite the provisions of the Limitation Act 1969 or any other
legislation or law (whether written or unwritten), the following
provisions apply if a payable liability is payable by instalments or is
deferred under an approved payment scheme or a rationing direction:
(a) The payable claimant may assert the liability (whether by making
a claim to the liable entity or bringing proceedings to establish the
amount payable in respect of the liability).
(b) If proceedings are brought or are pending before a court or other
tribunal in respect of the liability:
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(i) the court or tribunal may determine the amount payable in
respect of the liability (if any), and
(ii) in the case of a liability payable by instalments--the
instalments that are payable under the approved payment
scheme may be recovered by the claimant during the
insufficient funds period, and
(iii) in the case of a claim in respect of which payment is
deferred--any amount awarded by the court or tribunal
may not be recovered by the claimant until the liability
ceases to be deferred under the approved payment scheme
or rationing direction.
(c) If paragraph (b) operates to preclude the bringing, continuation or
maintenance of proceedings in respect of the enforcement of the
liability, any limitation period applicable to the enforcement of
the liability is taken to stop running on the day on which the
insufficient funds period commences and to recommence to run
on the day after the period ends.
(14) An order under this section may not be made in relation to a liable entity
after the finalisation day in relation to the entity.
36 Payments made by SPF directly to claimants
(1) This section applies to any payment of funds from the SPF made by the
SPF trustee directly to a payable claimant in order to discharge (whether
wholly or in part) a payable liability of a liable entity to the claimant.
(2) A payment to which this section applies operates:
(a) to discharge the liability concerned to the same extent to which
the liability would have been discharged if the payment had been
made directly to the payable claimant by the liable entity, and
(b) to confer on the SPF trustee a right against the liable entity to be
indemnified for the amount of the payment (including any
relevant interest), and
(c) to confer on the SPF trustee the same rights to obtain contribution
from third parties in respect of the subject-matter of the liability
concerned as the liable entity would have had if it had made the
payment directly.
(3) The SPF trustee may require the liable entity to pay the amount the
subject of the indemnity referred to in subsection (2) (b) on demand.
(4) Any right of the SPF trustee conferred by subsection (2) (b) to be
indemnified by the liable entity does not enable the SPF trustee to
recover from the entity any amount that the SPF trustee has already
recovered from a third party as a contribution under subsection (2) (c).
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(5) For the purposes of subsection (2) (b), relevant interest means an
amount of interest calculated in accordance with the terms of the Final
Funding Agreement for amounts in respect of which the SPF trustee is
to be indemnified by a liable entity or calculated in accordance with
such other method or methods as may be prescribed by the regulations.
Note. It is intended that the prescription by the regulations of a method of
calculating interest for the purposes of this definition will be consistent with the
terms of the Final Funding Agreement.
Division 6 Reporting requirements, information and
assistance
37 Winding up accounts
(1) A liable entity must, within 1 month after the end of each financial year,
and within such other period as the SPF trustee may direct from time to
time by order served on the entity, (the reporting period) lodge with the
SPF trustee:
(a) an account in the form prescribed by the regulations verified by
statement in writing showing:
(i) the entity's receipts and payments during the reporting
period, and
(ii) in the case of the second account lodged under this
subsection and all subsequent accounts--the aggregate
amount of receipts and payments during all preceding
reporting periods, and
(b) a statement in the form prescribed by the regulations relating to
the position in the winding up, verified by a statement in writing.
(2) Without limiting subsection (1), the SPF trustee may direct that a
reporting period includes a period occurring before the commencement
of the winding up period for a liable entity.
(3) An account or statement is verified in writing for the purposes of
subsection (1) if a director of the liable entity concerned makes a
statutory declaration to the effect that the account or statement is true
and fair.
(4) The SPF trustee may:
(a) cause the account and, where a statement of the position in the
winding up has been lodged, that statement to be audited by a
registered company auditor, who must prepare a report on the
account and the statement (if any), or
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(b) require a liable entity to have the account and, where a statement
of the position in the winding up is to be lodged, that statement to
be audited by a registered company auditor, who must prepare a
report on the account and the statement (if any) for lodgment.
(5) For the purposes of the audit under subsection (4), the liable entity must
give the auditor access to such books and information as the auditor
requires.
(6) If the SPF trustee causes an account, or an account and a statement, to
be audited (or requires a liable entity to have the account, or account and
statement, audited) under subsection (4):
(a) in the case of an audit that the SPF trustee causes to be undertaken
under subsection (4) (a)--the SPF trustee must give to the liable
entity a copy of the report prepared by the auditor, and
(b) the preparation or publication of the report does not subject the
SPF trustee or the auditor personally to any action, liability, claim
or demand.
(7) The costs of an audit under this section:
(a) in the case of an audit that the SPF trustee causes to be undertaken
under subsection (4) (a)--must be fixed by the SPF trustee, and
(b) form part of the operating expenses of the liable entity.
(8) The SPF trustee must lodge with the Minister a copy of each statement
or account lodged with the trustee, and any report prepared by an
auditor in respect of an audit it causes to be undertaken, under this
section.
38 Inspection of books
During the winding up period for a liable entity, the entity and its
directors or other officers must provide such access to its books for the
purposes of inspection as the SPF trustee may reasonably require.
39 Assistance from officers of liable entity
(1) During the winding up period for a liable entity, a director or other
officer of the entity must:
(a) attend on the SPF trustee (or a person specified by the SPF
trustee), and
(b) give the SPF trustee (or a person specified by the SPF trustee)
such information about the entity's business, property, affairs and
financial circumstances, and
(c) attend such meetings of the members or creditors of the entity,
as the SPF trustee may reasonably require.
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(2) During the winding up period for a liable entity, a director or other
officer of the entity must do whatever the SPF trustee reasonably
requires the director or other officer to do to help in:
(a) the exercise of the SPF trustee's functions under this Part, and
(b) the winding up of the entity under this Part.
40 Minister may exercise SPF trustee's functions under the Division
(1) The Minister may, at the Minister's discretion, at any time exercise any
function conferred on the SPF trustee under section 37, 38 or 39.
(2) For the purposes of subsection (1), sections 37, 38 and 39 apply as if
references to the SPF trustee included references to the Minister.
(3) The Minister must, as soon as reasonably practicable after exercising
any function conferred on the SPF trustee under section 37, 38 or 39,
give the SPF trustee written notice of the exercise of the function.
(4) In the event that a person cannot comply with both a requirement of the
SPF trustee made under section 37, 38 or 39 and a requirement of the
Minister, the only requirement with which the person must comply is
the requirement of the Minister.
41 Reports to Minister
(1) The Minister may, by order in writing served on the SPF trustee, require
the SPF trustee to report to the Minister from time to time, or on an
ongoing basis, on any aspect of the exercise of the SPF trustee's
functions under this Part.
(2) In particular, and without limiting subsection (1), the Minister may
require the SPF trustee to report to the Minister on any directions given
by it to a liable entity under section 24.
Division 7 Removal of directors of liable entities
42 Supreme Court may order removal of directors
(1) The Minister or the SPF trustee may apply to the Supreme Court for
orders to remove a director of a liable entity from office and to appoint
another person as a director.
(2) On any such application, the Supreme Court may make the following
orders if satisfied that the director of the liable entity concerned has not
faithfully performed or is not faithfully performing his or her duties as
a director or has not observed or is not observing a requirement of the
Court or of this Act:
(a) an order that the director ceases to hold office as a director of the
liable entity on the day specified in the order,
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(b) an order that a specified person is appointed to be a director of the
liable entity instead of the person who ceases to hold office as a
director.
(3) It is taken to be a provision of the constitution of each liable entity that:
(a) a director in respect of whom an order is made under subsection
(2) ceases to hold office as a director on the day specified in the
order, and
(b) the vacancy in the office may only be filled by a person appointed
by the Supreme Court in an order made under subsection (2), and
(c) this power of appointment has effect despite any other provision
of the constitution of the liable entity.
(4) A person who, by reason of an order made under this section, ceases to
hold office as a director of a liable entity is not entitled to any
remuneration or compensation because of the loss of that office.
(5) The provisions of this section are in addition to, and not in derogation
of, the provisions of section 17.
Division 8 Completion of winding up
43 Interpretation
(1) In this Act:
finalisation day, in relation to a liable entity, means such day as the
Minister may, by order published in the Gazette, direct under subsection
(2).
proof date--see section 46 (1).
(2) The Minister may make an order under this section in relation to a liable
entity if the Minister is satisfied that the provisions of this Part are no
longer of utility in achieving the objects of this Act and that the SPF
trustee should proceed to the final stage of winding up of the liable
entity in accordance with this Part.
(3) More than one order may be made under subsection (2) in relation to
different liable entities.
(4) In the event of an inconsistency on or after the finalisation day between
a provision of this Division and a provision of Division 1, 2, 3, 4 or 5,
the provision of this Division prevails.
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44 Duty of SPF trustee after finalisation day
As soon as practicable after the finalisation day in relation to a liable
entity, the SPF trustee must cause the property of the liable entity to be
collected and applied in discharging the outstanding liabilities of the
liable entity on the finalisation day.
45 Powers of SPF trustee after finalisation day
(1) The SPF trustee may, by written order served on a liable entity, direct
the entity to do, or not to do, any thing that the SPF trustee is satisfied
is necessary or appropriate for the purposes of collecting the property of
the liable entity and discharging the outstanding liabilities on the
finalisation day of the liable entity.
(2) Without limiting subsection (1), the SPF trustee may, by written order
served on a liable entity, direct the entity:
(a) to carry on the business of the entity so far as is necessary or
appropriate for those purposes, or
(b) to pay any claims (whether or not they are claims for payable
liabilities) that are proven under this Division, or
(c) to make any compromise or arrangement with claimants or
persons claiming to be claimants or having or alleging that they
have a claim (present or future, certain or contingent, ascertained
or sounding only in damages) against the entity or by which the
entity may be rendered liable.
(3) Any thing authorised to be done by a liable entity under section 23 is
authorised to be done after the liable entity is given a direction by an
order under this section only to the extent (if any) that the doing of the
thing is consistent with the direction.
(4) A liable entity is required and authorised to comply with any direction
given to it under an order made under this section and served on it.
46 Date for proof of claims
(1) On or after the finalisation day, the SPF trustee may, by notice
published in a newspaper circulating generally in the State, fix a date
(the proof date) on or before which claimants are to prove their claims
or after which they will be excluded from the benefit of any distribution
made before those claims are proved.
(2) The notice must be published not less than 14 days before the proof
date.
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47 Proof of claims
(1) A claim against a liable entity (including a claim other than a claim for
a payable liability) that has not been admitted before the finalisation day
is provable in accordance with this Division on or before the proof date.
(2) A claim must be proved formally if the SPF trustee requires it to be
proved formally.
(3) A claim that is not required to be proved formally:
(a) may be proved formally, or
(b) may be proved in some other way, subject to compliance with the
requirements of the regulations (if any) relating to the informal
proof of claims.
(4) A claim is proved formally if it satisfies the requirements of this
Division relating to the formal proof of claims.
48 Formal proof of claims
(1) A claim may be formally proved under this Division by delivering or
sending by post a formal proof of claim to the SPF trustee.
(2) A formal proof of claim is to be in a form approved by the Minister.
(3) A formal proof of claim must contain detailed particulars of the claim
sought to be proved.
49 Costs of proof
A claimant must bear the cost of proving the claimant's claim under this
Division or of amending a proof of claim unless the Minister otherwise
orders.
50 Priority payments
Subject to this Part, in the winding up of a liable entity on or after the
finalisation day the following claims outstanding against the liable
entity at that day must be paid in priority to all other claims:
(a) first, expenses (except deferred expenses) properly incurred by
the SPF trustee in preserving, realising or getting in property of
the liable entity, or in carrying on the liable entity's business,
(b) next, the costs in respect of an application to the Supreme Court
under section 51 or 52,
(c) next, operating expenses of the entity,
(d) next, payable liabilities other than those referred to in paragraph
(c),
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(e) next, claims for the payment of liabilities (other than payable
liabilities).
51 Orders
(1) A person with a claim against the SPF trustee or the Minister may apply
to the Supreme Court for an order with respect to things to be done or
not to be done to complete the winding up of a liable entity under this
Division during or after the finalisation day.
(2) On any such application, the Supreme Court may make such orders as
it thinks fit to complete the winding up of a liable entity under this
Division.
(3) For the purposes of subsection (1), the winding up of a liable entity is
completed by the realisation of all the property of a liable entity or so
much of the property as can be realised without needlessly protracting
the winding up, and the distribution of a final dividend (if any) to the
outstanding claimants.
52 Deregistration of liable entity
(1) After the completion of the winding up of a liable entity, the SPF trustee
may, with the written consent of the Minister, lodge an application with
the Supreme Court for an order that the liable entity or a director of the
liable entity lodge an application under the Corporations Act for
deregistration of the liable entity.
(2) The Supreme Court may make an order under subsection (1) only if the
Court is satisfied that the SPF trustee has realised all the property of a
liable entity or so much of the property as can, in the SPF trustee's
opinion, be realised without needlessly protracting the winding up, and
has distributed a final dividend (if any) to the outstanding claimants.
(3) If an order is made under subsection (1), the liable entity or director to
which the order applies is specifically authorised to make an application
for the deregistration of the liable entity under the Corporations Act
even if none of the circumstances referred to in section 601AA (2) of
the Corporations Act for the making of such an application are present.
Division 9 Enforcement
53 Meaning of "authorised applicant"
(1) For the purposes of this Division, each of the following persons is an
authorised applicant:
(a) the SPF trustee,
(b) the Minister,
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(c) in relation to a provision of this Division in which the expression
authorised applicant is used--any other person who is
authorised by the Minister under subsection (2) to be an
authorised applicant for the purposes of the provision.
(2) The Minister may, by written instrument, authorise any person to be an
authorised applicant for the purposes of one or more specified
provisions, or all of the provisions, of this Division that enable an
authorised applicant to make applications to the Supreme Court.
(3) The Minister may at any time and for any reason or no reason revoke a
person's authorisation under subsection (2) by written notice served on
the person.
(4) A document purporting to be an authorisation under subsection (2) and
purportedly signed by the Minister is admissible in any proceedings and
is prima facie evidence of the authorisation specified by it.
54 Enforcement of provisions of this Part
(1) In this section, contravention includes a threatened or apprehended
contravention.
(2) An authorised applicant, and only an authorised applicant, may apply to
the Supreme Court for an order to remedy or restrain a contravention of
a provision of this Part, whether or not any right of that applicant has
been or may be infringed by or as a consequence of that contravention.
(3) On any such application, the Supreme Court may, if satisfied that a
contravention has occurred, or that a contravention will, unless
restrained by order of the Court, continue or be committed, make such
order or orders as it thinks fit to remedy or restrain the contravention.
(4) Without limiting subsection (3), on any such application the Supreme
Court may make an order setting aside a rationing direction made under
section 35 if it is satisfied that the direction should not have been given
or is no longer required.
55 Advice or directions concerning provisions of this Part
(1) A liable entity or the SPF trustee may apply for advice or direction by
the Supreme Court or the Minister on any matter relating to:
(a) the scope of the entity's or trustee's functions under this Part, or
(b) the exercise of any function by the entity or trustee under this
Part, or
(c) any other matter relating to the operation of this Part.
(2) The Minister may apply for advice or direction by the Supreme Court
on any matter relating to:
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(a) the scope of the Minister's, the SPF trustee's or a liable entity's
functions under this Part, or
(b) the exercise of any function by the Minister, the SPF trustee or a
liable entity under this Part, or
(c) any other matter relating to the operation of this Part.
(3) Without limiting subsection (1) or (2), an application may be made with
respect to any of the following:
(a) the giving of, or failure to give, a direction to a liable entity under
section 24,
(b) the failure or refusal of the Minister to grant approval to the SPF
trustee to make an application to the Supreme Court under
section 35,
(c) the issuing of a rationing direction by the SPF trustee under
section 35,
(d) an application, or failure to make an application, to the Supreme
Court for an order under section 35,
(e) the exercise, or failure to exercise, any function conferred on the
SPF trustee under Division 8,
(f) the failure or refusal of the Minister to grant written consent to the
SPF trustee to make an application to the Supreme Court under
section 52.
(4) A written statement signed by the applicant is sufficient evidence of the
matters set out in it.
(5) Unless the rules of court otherwise provide or the Supreme Court
otherwise directs, it is not (except as provided by section 57) necessary
to serve notice of an application under this section to the Supreme Court
on any person, or to adduce evidence by affidavit or otherwise in
support of the application.
(6) In determining any such application, the Supreme Court or Minister (as
the case may be) may decide to:
(a) approve or disapprove of any act proposed to be done by the
applicant, or
(b) give such advice or direction as the Supreme Court or Minister
considers appropriate.
(7) An advice or direction given by the Supreme Court under this section is
to be given by order.
Note. Section 101 (Appeal in proceedings before the Court) of the Supreme
Court Act 1970 provides for appeals to the Court of Appeal from judgments or
orders of the Supreme Court in a Division.
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(8) Without limiting subsections (6) and (7), if an application is made under
this section to the Supreme Court in respect of the issuing of a rationing
direction under section 35, the Supreme Court may make an order
setting aside that direction if it is satisfied that the direction should not
have been given or is no longer required.
(9) An advice or direction given by the Minister under this section is to be
given by order in writing.
(10) No proceedings lie, or civil or other liability arises, against an applicant
for or on account of any act, matter or thing done or omitted to be done
by the applicant in good faith and in accordance with any approval,
advice or direction given under this section.
(11) In this section:
applicant means a person who applies for advice or direction under this
section.
56 Supreme Court may request non-NSW court or tribunal to act in its aid
(1) The Supreme Court may, on the application of an authorised applicant,
request any of the following courts and tribunals that has jurisdiction in
winding up matters with respect to a liable entity to act in aid of, and be
auxiliary to, the Supreme Court in the winding up of the entity under
this Part:
(a) a court or other tribunal of another State or Territory (including
an external Territory),
(b) a court or other tribunal of the Commonwealth,
(c) a court or other tribunal of a foreign country (or of a state,
province or other part of a foreign country).
(2) In this section:
winding up matter means a matter relating to any scheme of
arrangement, receivership, winding up or other external administration
of a company or other body outside of the territorial limits of the State
(whether or not in Australia).
57 Notice requirement for certain proceedings
A liable entity or the SPF trustee must give the Minister:
(a) written notice of any application the liable entity or SPF trustee
proposes to make to the Supreme Court under this Part at least
3 days before the application is made, and
(b) copies of the originating process and of any written statement or
other evidence filed with the Supreme Court in support of the
application on the day on which the originating process, written
statement or evidence is filed.
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58 Right of Minister to intervene in proceedings
The Minister may intervene and be heard personally or by a legal
practitioner or agent in any proceedings before the Supreme Court
under this Part.
59 Protection for exercise of certain functions during winding up period
(1) This section applies to any function (a protected function) conferred or
imposed on any of the following persons (a protected person) by or
under a provision of this Part:
(a) the SPF trustee,
(b) the Minister (including a delegate of the Minister),
(c) an authorised applicant.
(2) Except as provided by this section, the exercise by a protected person of
any protected function may not be:
(a) challenged, reviewed, quashed or called into question before any
court of law or administrative review body in any proceedings, or
(b) restrained, removed or otherwise affected by any proceedings.
(3) Without limiting subsection (2), that subsection applies whether or not
the proceedings relate to any question involving compliance or
non-compliance, by a protected person, with the provisions of this Part
or the rules of natural justice (procedural fairness).
(4) Accordingly (and except as provided by this section), no court of law or
administrative review body has jurisdiction or power to consider any
question involving compliance or non-compliance, by the protected
person, with those provisions or with those rules so far as they apply to
the exercise of any protected function.
(5) However, nothing in this section prevents:
(a) any person (including a payable claimant) who is expressly
authorised or permitted by a provision of this Part to bring
proceedings (whether under this Part or otherwise) against a
protected person from:
(i) bringing such proceedings, or
(ii) being granted such relief in those proceedings as may be
authorised or permitted by this Part, or
(b) any party to the Final Funding Agreement or a Related
Agreement from bringing proceedings, or being granted relief, in
respect of any of the following:
(i) any civil liability incurred by another party to the
Agreement or other person where that liability arises under
or in relation to the Agreement,
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(ii) a failure or refusal by another party to the Agreement to
carry out a function conferred or imposed on that party
under the Agreement.
(6) This section has effect despite any provision of this Act or other
legislation or any other law (whether written or unwritten).
(7) In this section:
exercise of functions includes:
(a) the purported exercise of functions, and
(b) the non-exercise or improper exercise of functions, and
(c) the proposed, apprehended or threatened exercise of functions.
proceedings includes:
(a) proceedings for an order in the nature of prohibition, certiorari or
mandamus or for a declaration or injunction or for any other
relief, and
(b) without limiting paragraph (a), proceedings in the exercise of the
inherent jurisdiction of the Supreme Court or the jurisdiction
conferred by section 23 of the Supreme Court Act 1970.
Division 10 Displacement of Corporations legislation
60 Displacement of certain provisions of the Corporations Act
(1) The provisions of Divisions 19 of this Part are declared to be
Corporations legislation displacement provisions for the purposes of
section 5G of the Corporations Act in relation to Chapter 5 of the
Corporations Act.
Note. Chapter 5 of the Corporations Act makes provision for the external
administration of companies and certain other bodies.
Section 5G (4) of the Corporations Act provides that a provision of the
Corporations legislation does not:
(a) prohibit the doing of an act, or
(b) impose a liability (whether civil or criminal) for doing an act,
if a provision of a law of a State or Territory specifically authorises or requires
the doing of that act. Section 27 of this Act specifically authorises a liable entity
and its directors and other officers to conduct the entity's business as provided
by this Part even if insolvent. Part 5.7B of the Corporations Act prohibits a
company and its directors and officers from trading while insolvent.
Section 5G (8) of the Corporations Act provides that the provisions of Chapter
5 of that Act do not apply to a scheme of arrangement, receivership, winding up
or other external administration of a company to the extent to which the scheme,
receivership, winding up or administration is carried out in accordance with a
provision of a law of a State or Territory.
Section 5G (9) of the Corporations Act provides that if a provision of a law of a
State or Territory provides that a provision is included, or taken to be included,
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in a company's constitution, the provision is included in the company's
constitution even though the procedures and other requirements of that Act are
not complied with in relation to the provision. Section 42 (3) of this Act provides
that certain provisions relating to the removal and appointment of directors are
taken to be part of the constitution of a liable entity.
Section 5G (11) of the Corporations Act provides that if a State law declares a
provision of a State law to be a Corporations legislation displacement provision,
any provision of the Corporations legislation with which the State provision
would otherwise be inconsistent does not apply to the extent necessary to avoid
the inconsistency.
However, section 5G (3) of the Corporations Act provides that section 5G will
only apply to a provision of a law of a State or Territory enacted after the
commencement of that Act if a law of the State or Territory declares the
provision to be a Corporations legislation displacement provision for the
purposes of that section.
(2) Without limiting subsection (1), section 26 is declared to be a
Corporations legislation displacement provision for the purposes of
section 5G of the Corporations Act in relation to the provisions of Part
2B.6 of that Act.
Note. Part 2B.6 of the Corporations Act makes provision for the use of names
by companies.
Section 5G (6) of the Corporations Act provides that the provisions of Part 2B.6
and Part 5B.3 of that Act (which relate to the use of names) do not:
(a) prohibit a company or other body from using a name if the use of the
name is expressly provided for, or authorised by, a provision of a law of
a State or Territory, or
(b) require a company or other body to use a word as part of its name if the
company or body is expressly authorised not to use that word by a
provision of a law of a State or Territory.
(3) Without limiting subsection (1), sections 28 and 52 are declared to be
Corporations legislation displacement provisions for the purposes of
section 5G of the Corporations Act in relation to Part 5A.1 of that Act.
Note. Part 5A.1 of the Corporations Act makes provision for the deregistration
of companies.
Section 5G (5) of the Corporations Act provides that if a provision of a law of a
State or Territory specifically:
(a) authorises a person to give instructions to the directors or other officers
of a company or body, or
(b) requires the directors of a company or body to:
(i) comply with instructions given by a person, or
(ii) have regard to matters communicated to the company or body by
a person, or
(c) provides that a company or body is subject to the control or direction of
a person,
a provision of the Corporations legislation does not:
(d) prevent the person from giving an instruction to the directors or
exercising control or direction over the company or body, or
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(e) prohibit a director from complying with the instruction or direction, or
(f) impose a liability (whether civil or criminal) on a director for complying
with the instruction or direction.
Section 5G (11) of the Corporations Act provides that if a State law declares a
provision of a State law to be a Corporations legislation displacement provision,
any provision of the Corporations legislation with which the State provision
would otherwise be inconsistent does not apply to the extent necessary to avoid
the inconsistency.
(4) Without limiting subsection (1), section 30 is declared to be a
Corporations legislation displacement provision for the purposes of
section 5G of the Corporations Act in relation to section 601AG of the
Corporations Act.
Note. Section 601AG of the Corporations Act enables certain persons to
recover amounts under an insurance contract previously held by a deregistered
company.
Section 5G (11) of the Corporations Act provides that if a State law declares a
provision of a State law to be a Corporations legislation displacement provision,
any provision of the Corporations legislation with which the State provision
would otherwise be inconsistent does not apply to the extent necessary to avoid
the inconsistency.
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Miscellaneous Part 5
Part 5 Miscellaneous
61 Holder of office not affected by appointment as director of SPF trustee
The doctrine of incompatibility of office does not operate:
(a) to prevent a person employed in a position as an officer of the
Public Service (the original office) from being appointed to a
position as an officer of the SPF trustee, or
(b) to effect or require the surrender or vacation of the original office
as a result of such an appointment.
62 This Act does not create liability for personal asbestos claims
For the avoidance of doubt, it is declared that nothing in this Act
operates to create any liability for a personal asbestos claim if the
liability does not arise under another law.
63 Exemption from State tax
(1) In this section:
exempt matter means any of the following:
(a) the transfer of any shares in a liable entity that the Minister has
instructed under section 16,
(b) the entry into the Final Funding Agreement or any Related
Agreement,
(c) the establishment of the SPF,
(d) such other matters in connection with this Act as may be
prescribed by the regulations.
State tax means application or registration fees, duty under the Duties
Act 1997 or any other tax, duty, fee or charge imposed by any Act or law
of the State.
(2) State tax is not payable in relation to:
(a) an exempt matter, or
(b) anything done because of, or for a purpose connected with or
arising out of, an exempt matter.
64 Tabling of copies of Final Funding Agreement and Related Agreements
(1) In this section:
shareholder approval documentation means notice of a meeting of the
shareholders of James Hardie Industries NV (including explanatory
memoranda and accompanying documentation) to seek the approval of
shareholders for entry into, and the implementation of, the Final
Funding Agreement and Related Agreements.
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(2) If James Hardie Industries NV sends shareholder approval
documentation to its shareholders, the Minister is to cause copies of the
Final Funding Agreement as in force at the time it is signed and any
Related Agreement to which the documentation relates (a disclosed
Agreement) to be tabled in each House of Parliament as soon as is
reasonably practicable after the documentation is sent.
(3) The copies of the disclosed Agreements:
(a) are, on presentation and for all purposes, taken to have been laid
before the House, and
(b) may be printed by authority of the Clerk of the House, and
(c) if so printed, are for all purposes taken to be documents published
by or under the authority of the House, and
(d) are to be recorded:
(i) in the case of the Legislative Council, in the Minutes of the
Proceedings of the Legislative Council, and
(ii) in the case of the Legislative Assembly, in the Votes and
Proceedings of the Legislative Assembly,
on the first sitting day of the House after receipt of the copies by
the Clerk.
(4) For the avoidance of doubt, it is declared that the tabling of copies of the
disclosed Agreements as provided by this section does not abrogate,
limit or otherwise affect any right or liability of any person arising under
or in relation to the Agreements.
65 Delegation
The Minister may delegate the exercise of any function of the Minister
under this Act or the regulations (other than this power of delegation) to:
(a) any member of staff of a Government Department, or
(b) any person, or any class of persons, authorised for the purposes
of this section by the regulations.
66 Service of documents
(1) A document that is authorised or required by this Act or the regulations
to be served on any person may be served:
(a) in the case of a natural person:
(i) by delivering it to the person personally, or
(ii) by sending it by post to the address specified by the person
for the giving or service of documents or, if no such
address is specified, the residential or business address of
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the person last known to the person giving or serving the
document, or
(b) in the case of a body corporate--by leaving it with a person
apparently of or above the age of 16 years at, or by sending it by
post to, the head office, a registered office or a principal office of
the body corporate or to an address specified by the body
corporate for the giving or service of documents.
(2) Nothing in this section affects the operation of any provision of a law or
of the rules of a court authorising a document to be served on a person
in any other manner.
67 Offences by corporations
(1) If a corporation contravenes, whether by act or omission, any provision
of this Act or the regulations, each person who is a director of the
corporation or who is concerned in the management of the corporation
is taken to have contravened the same provision if the person knowingly
authorised or permitted the contravention.
(2) A person may be proceeded against and convicted under a provision
pursuant to subsection (1) whether or not the corporation has been
proceeded against or has been convicted under the provision.
(3) Nothing in this section affects any liability imposed on a corporation for
an offence committed by the corporation under this Act or the
regulations.
(4) In this section:
corporation includes a company or any other body corporate.
68 Nature of proceedings for offences
(1) Proceedings for an offence under this Act or the regulations may be
dealt with:
(a) summarily before a Local Court, or
(b) summarily before the Supreme Court in its summary jurisdiction.
(2) If proceedings are brought in a Local Court, the maximum monetary
penalty that the Local Court may impose for the offence is 100 penalty
units, despite any higher maximum monetary penalty provided in
respect of the offence.
69 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for
or with respect to any matter that by this Act is required or permitted to
be prescribed or that is necessary or convenient to be prescribed for
carrying out or giving effect to this Act.
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(2) The regulations may create offences punishable by a penalty not
exceeding 100 penalty units.
70 Repeal of James Hardie Former Subsidiaries (Special Provisions) Act
2005
The James Hardie Former Subsidiaries (Special Provisions) Act 2005
is repealed.
71 Savings, transitional and other provisions
Schedule 1 has effect.
72 Amendment of Subordinate Legislation Act 1989 No 146
The Subordinate Legislation Act 1989 is amended as set out in
Schedule 2.
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Savings, transitional and other provisions Schedule 1
Schedule 1 Savings, transitional and other
provisions
(Section 71)
Part 1 General
1 Regulations
(1) The regulations may contain provisions of a savings or transitional
nature consequent on the enactment of the following Acts:
this Act
(2) Any such provision may, if the regulations so provide, take effect from:
(a) the introduction day (in the case of this Act), or
(b) the date of assent to the Act concerned (in the case of any other
Act),
or a later date.
(3) To the extent to which any such provision takes effect from a date that
is earlier than the date of its publication in the Gazette, the provision
does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the
State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an
authority of the State) in respect of anything done or omitted to
be done before the date of its publication.
Part 2 Provisions consequent on enactment of this
Act
2 Definitions
In this Part:
repeal day means the day on which the repealed Act is repealed by this
Act.
repealed Act means the James Hardie Former Subsidiaries (Special
Provisions) Act 2005.
3 Validity of SPF established before assent day confirmed
Any trust fund that is established as referred to in section 8 during or
after the introduction day but before the assent day is taken to have been
validly established for the purposes of the law of the State.
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Schedule 1 Savings, transitional and other provisions
4 Orders made under Part 2 of repealed Act
(1) Any order made under section 10 of the repealed Act that was in force
immediately before the repeal day continues to have effect for the
purposes of this Act as if it had been made by the Minister under section
14 of this Act, and may be revoked or amended accordingly.
(2) Any order made under section 12 of the repealed Act that was in force
immediately before the repeal day continues to have effect for the
purposes of this Act as if it had been made by the Minister under section
16 of this Act, and may be revoked or amended accordingly.
5 Approvals given under Part 2 of repealed Act
(1) Any written approval given by the Minister under section 8 of the
repealed Act for a relevant company:
(a) to change the address of its registered office to a location that is
outside of the territorial limits of the State, or
(b) to have its registered office at a location that is outside of the
territorial limits of the State,
that was still in effect immediately before the repeal day continues to
have effect for the purposes of section 12 of this Act unless the Minister
revokes it.
(2) Any written approval given by the Minister under section 9 of the
repealed Act for a relevant company:
(a) to change the location where any Member Register of the
company is kept to a location that is outside of the territorial
limits of the State, or
(b) to keep any Member Register of the company at a location that is
outside of the territorial limits of the State,
that was still in effect immediately before the repeal day continues to
have effect for the purposes of section 13 of this Act unless the Minister
revokes it.
(3) Any written approval given by the Minister under section 11 of the
repealed Act for a relevant company to transfer shares that it holds in a
liable entity to another person that was still in effect immediately before
the repeal day continues to have effect for the purposes of section 15 of
this Act unless the Minister revokes it.
6 Directions given under section 19 of repealed Act
Any direction given to a liable entity by the Minister under section 19
of the repealed Act that was still in force immediately before the repeal
day continues to have effect under section 24 of this Act as if the
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Savings, transitional and other provisions Schedule 1
direction had been given by the SPF trustee, and may be revoked or
amended accordingly.
7 Approved payment schemes under section 26 of repealed Act
Any approved payment scheme that was in force under section 26 of the
repealed Act immediately before the repeal day continues to have effect
as an approved payment scheme under section 35 of this Act as if it had
been approved by the Supreme Court under section 35, but only until it
is revoked or varied by the Supreme Court under that section.
8 Requirements under Division 4 of Part 3 of repealed Act
(1) Any requirement of the Minister made under section 28 of the repealed
Act that was still in force immediately before the repeal day continues
to have effect under section 38 of this Act as if the requirement had been
made by the SPF trustee, and may be revoked or amended accordingly.
(2) Any requirement of the Minister made under section 29 of the repealed
Act that was still in force immediately before the repeal day continues
to have effect under section 39 of this Act as if the requirement had been
made by the SPF trustee, and may be revoked or amended accordingly.
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Schedule 2 Amendment of Subordinate Legislation Act 1989
Schedule 2 Amendment of Subordinate Legislation
Act 1989
(Section 72)
Schedule 4 Excluded instruments
Omit item 27. Insert instead:
Regulations under the James Hardie Former Subsidiaries
27
(Winding up and Administration) Act 2005.
Regulations under the James Hardie (Civil Liability) Act 2005.
28
Regulations under the James Hardie (Civil Penalty
29
Compensation Release) Act 2005.
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