DEED OF SETTLEMENT IN RELATION TO THE SETTLEMENT OF CLAIMS UNDER
THE HOME INSULATION PROGRAM INDUSTRY PAYMENT SCHEME
Date
This Deed is made on
/
day
/_
month
year.
Parties
This Deed is made between and binds the following parties:
1.
The Commonwealth of Australia represented by the Department of Industry &
Science of 10 Binara Street, Canberra ACT 2600 (Commonwealth)
2.
[PAYEE NAME] of [PAYEE ADDRESS] (Payee)
Context
A.
The Payee is an eligible applicant for the purposes of the Home Insulation
Program Industry Payment Scheme (Scheme). The Payee has accepted a
payment offer by the Commonwealth under the Scheme.
Operative provisions
In consideration of the mutual promises contained in this Deed, the parties agree
as follows:
1.
Interpretation
1.1.
Definitions
1.1.1.
In this Deed, unless the context indicates otherwise:
a.
a term in bold type has the meaning shown opposite it:
Application
means the application submitted by the Payee under the
Scheme
Claim
means any claim, demand, action, suit or proceeding
whether at law, under statute, in equity or otherwise, for
damage, costs, injunctions, enforcement of costs orders,
review of a decision or other remedy.
Deed
means this Deed and all schedules and attachments (if any).
HIP
means the Home Insulation Program, which commenced on
9 February 2009 and closed on 19 February 2010, as part
of the Energy Efficient Homes Package.
Related
Persons
means past and present ministers, officers, employees,
agents, professional advisors, executors, administrators or
assigns of a party to this Deed.
Settlement
Sum
means the advance part-payment, if any, and/or the final
payment determined by the Minister, if any.
Deed of Settlement
Page 1
1.2.
Guidance on construction of Deed
1.2.1.
This Deed records the entire agreement between the parties in relation to its
subject matter.
1.2.2.
As far as possible all provisions of this Deed will be construed so as not to be void
or otherwise unenforceable. If anything in this Deed is void or otherwise
unenforceable then it will be severed and the rest of the Deed remains in force.
1.2.3.
A provision of this Deed will not be construed to the disadvantage of a party solely
on the basis that it proposed that provision.
1.3.
Commencement
1.3.1.
The terms of this Deed apply on and from the date of this Deed.
2.
Company Payee qualifications
2.1.
Representation and warranty by a liquidator or receiver
2.1.1.
Where the Payee is a corporation in liquidation, the Payee represents and
warrants to the Commonwealth that the liquidator has not sold, assigned or
transferred to any person any right to take action against, or seek compensation
from, the Commonwealth in relation to loss or damage of any kind sustained by
the Payee as a result of or arising out of, directly or indirectly, the HIP and any
matter arising from and incidental to it.
2.1.2.
The Payee acknowledges that the Payee has no entitlement to the Settlement
Sum under this Deed unless the representation and warranty in clause 2.1 is true
and correct in every particular.
3.
Settlement
3.1.
Payment of Settlement Sum
3.1.1.
Subject to clause 2, the Commonwealth agrees to pay and the Payee agrees to
accept the Settlement Sum in full and final settlement of the Application.
3.2.
Release of the Commonwealth
3.2.1.
In consideration of the Commonwealth entering into this Deed and upon payment
of the Settlement Sum, the Payee forever discharges and releases the
Commonwealth from all actions, proceedings, claims and demands whatsoever
which the Payee now has or may in the future have against the Commonwealth in
relation to the Application and for loss or damage sustained by the Payee as a
result of or arising out of, directly or indirectly, the HIP and all matters arising from
and incidental to it.
3.2.2.
The Payee agrees not to make any further claims against the Commonwealth or
any of its Related Persons as a result of or arising out of, directly or indirectly, the
Application and the HIP.
3.3.
Commonwealth makes no admission of legal liability
3.3.1.
The Payee acknowledges that settlement under this Deed is made in recognition
of the Commonwealth’s moral responsibility to the Payee and that settlement is
made without the Commonwealth admitting or conceding any legal liability
whatsoever on the part of the Commonwealth or its Related Persons.
Deed of Settlement
Page 2
3.4.
Taxes, duties and government charges
3.4.1.
The Payee agrees to pay all taxes, duties and government charges imposed or
levied in Australia or overseas in connection with the performance of this Deed.
4.
Settlement of all claims
4.1.
Acknowledgements
4.1.1.
The parties acknowledge that payments made under this Deed are in full
satisfaction of any Claim for loss, damage, cost or expense in relation to the
Application and the HIP.
4.1.2.
Each party
a.
acknowledges that it enters into this Deed freely and voluntarily based upon its
own information, legal advice and investigation;
b.
acknowledges that it is not executing this Deed as a result of, by reason of, or
in reliance on any promise, representation, advice, statement or information of
any kind or nature whether in answer to any inquiry or not;
c.
represents and warrants that this Deed is valid and binding in respect of that
party; and
d.
must do all things necessary to give full effect to this Deed.
4.2.
Bar to proceedings
4.2.1.
This Deed may be pleaded in bar in any proceedings which may be commenced
by or through either party in respect of the Application and in relation to the HIP.
5.
General provisions
5.1.
Costs
5.1.1.
Each party will bear its own costs and expenses (including legal costs) arising out
of and incidental to negotiation, preparation, execution and delivery of this Deed.
5.2.
Waiver
5.2.1.
A failure or delay by a party to exercise any right or remedy it holds under this
Deed or at law does not operate as a waiver of that right.
5.3.
Variation
5.3.1.
Any variation to this Deed must be agreed in writing and be signed by the parties.
5.4.
Assignment
5.4.1.
The Payee cannot assign its obligations or rights under this Deed without the
Commonwealth's prior written approval.
5.5.
Applicable law
5.5.1.
This Deed is to be construed and governed by, the law of the Australian Capital
Territory (ACT). The parties submit to the jurisdiction of the courts of the ACT.
5.6.
Counterparts
5.6.1.
This Deed may be signed in counterparts. All signed counterparts taken together
constitute one document.
Deed of Settlement
Page 3
Executed as a Deed
Signatures
SIGNED, SEALED AND DELIVERED
for and on behalf of the
COMMONWEALTH OF AUSTRALIA
represented by the Department of
Industry & Science by:
)
)
)
Signature
^Name of signatory^
In the presence of:
Signature of witness
^Name of witness^
Date:
/
day
/
month
year.
SIGNED, SEALED AND DELIVERED
for and on behalf of [Insert Payee
Name] by:
^Name of signatory^
)
)
)
Signature
In the presence of:
Signature of witness
^Name of witness^
Date:
/
day
Deed of Settlement
/
month
year.
Page 4