Deed of Settlement and
Release
The Minister for Police and Emergency
Services for the time being for the State of
Victoria
Candetti Constructions Pty Ltd
Baker & McKenzie
Solicitors
Level 19,
181 William Street
MELBOURNE VIC 3000
Tel: (03) 9617-4200
Fax: (03) 9614-2103
Email: alison.ashford@bakermckenzie.com
4 April 2011
Ref: 1177181-v1\AUSADZ
Contents
Clause
Number
Heading
1
Definitions and interpretation
1
2
Payment of Settlement Amount
2
3
Additional Obligations of Victoria Police
3
4
GST
3
5
Releases
3
6
Bar to action and covenant not to sue
4
7
No admission of liability
4
8
Authority to Sign and Legal Advice
4
9
Confidentiality to be preserved
4
10
No assignment of rights or obligations under this Deed
5
11
General
5
Annexure A
1
Annexure B
3
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Page
i
Deed of Settlement and Release
Date
7 April
Parties
Parties
2011
The Minister for Police and Emergency Services for the time being for the State of
Victoria of Level 3, 1 Treasury Place, East Melbourne, Victoria 3002 (Victoria
Police)
Candetti Constructions Pty Ltd (ABN 17 007 657 150) of 1st Floor, 29 Anzac
Highway, Keswick SA 5035 (Candetti)
Recitals
A
The Parties are parties to the Contract.
B
The Parties are in dispute in respect of the Project.
C
The Parties have agreed to settle the Dispute on the terms and conditions set out in this Deed
without any admission of liability by either Party.
Operative provisions
1
Definitions and interpretation
Definitions
1.1
In this Deed, unless the context requires otherwise, words used have the following meanings:
Business Day means a day that is not a Saturday, Sunday, a public holiday or bank holiday in
Victoria.
Claim means any claim, cost, damages, debt, expense, liability, loss, allegation, suit, action,
demand, cause of action or proceeding of any kind.
Contract means the contract based on an amended form of AS2124-1992 and dated 11
December 2006 for the construction of the Mildura Police Station.
Dispute means the Dispute set out in Candetti's Notice of Dispute dated 12 May 2010.
GST has the meaning given by the GST Act.
GST Law has the meaning given to that term in A New Tax System (Goods and Services Tax)
Act 1999, or if that Act does not exist for any reason, means any Act imposing or relating to
the imposition or administration of a goods and services tax in Australia and to any regulation
made under that Act.
GST Amount means, in relation to a taxable supply the amount of GST payable in respect of
that taxable supply.
Latent Defects means any defect, omission or deficiency in construction the existence of
which is unknown to, Victoria Police, the Superintendent or their representatives as at the
Settlement Date.
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Deed of Settlement and Release
Party means a party to this Deed.
Project means the construction of the Mildura Police Station at Mildura in the State of
Victoria.
Related Body Corporate means a related body corporate as defined in the Corporations Act
2001.
Settlement Amount means the amount of $198,400.00 (excluding GST) as contained in the
variation approval set out in Annexure B.
Settlement Date means the date of this Deed.
Superintendent has the meaning in the Contract.
Tax Invoice has the meaning given by the GST Act.
Interpretation
1.2
In this Deed, unless the context requires otherwise:
(a)
words suggesting the singular include the plural and vice versa;
(b)
references to any document (including this Deed) include references to that document
as amended, consolidated, supplemented, novated or replaced;
(c)
references to this Deed include references to this Deed and its schedules;
(d)
references to paragraphs, clauses, recitals and schedules are references to those parts
of this Deed;
(e)
headings are for convenience only and must be ignored in interpreting this Deed;
(f)
references to any person or any Party include references to its respective successors,
permitted assigns and substitutes, executors and administrators;
(g)
references to dollar and $ are to the lawful currency of the Commonwealth of
Australia;
(h)
references to any person include references to any individual, company, body
corporate, association, partnership, joint venture, trust and governmental agency;
(i)
references to GST are to Australian GST under the GST Act and terms defined in that
Act have the same meaning when used in clause 4 of this Deed.
2
Payment of Settlement Amount
2.1
Victoria Police agrees to make payment of the Settlement Amount within 14 days of the
Settlement Date.
2.2
Payment of the Settlement Amount is to be made via electronic transfer to the following
account:
Bank: Westpac Bank
BSB: 035-213
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Deed of Settlement and Release
Account Number: 164 551
Account Name: Candetti Constructions Pty Ltd
3
Additional Obligations of Victoria Police
3.1
Victoria Police has issued or will issue upon the Settlement Date a letter of approval to
Candetti in the form set out in the Annexure A to this Deed.
3.2
Victoria Police agrees (where appropriate and at its discretion) to invite Candetti to tender for
future Victoria Police construction works.
3.3
Victoria Police shall pay the costs of the mediator, Dr Donald Charrett, in respect of the
mediation held on Thursday 3 February 2011.
4
GST
4.1
If any GST is payable on any taxable supply made by the supplier ("Supplier") under this
Deed to the recipient of that supply ("Recipient"), the Recipient must pay the GST Amount to
the Supplier on the issue of an invoice relating to the taxable supply. It is a precondition for
payment of the GST Amount by the Recipient that the Supplier must provide to the Recipient
a tax invoice or a document that the Commissioner will treat as a tax invoice.
4.2
The amount recoverable by the Supplier on account of GST under this clause will include any
fines, penalties, interest and other charges incurred as a consequence of late payment or other
default by the Recipient under this clause.
4.3
The Parties agree to do all things necessary and instruct their solicitors to do all things
necessary to give effect to this clause.
5
Releases
5.1
Candetti releases and discharges Victoria Police from all Claims it has, or may have had but
for this Deed, against Victoria Police arising out of, in relation to or in connection with:
5.2
5.3
(a)
the Contract; and
(b)
the Project.
Subject to clause 5.3 Victoria Police releases and discharges Candetti from all Claims it has,
or may have had but for this Deed, against Candetti arising out of, in relation to or in
connection with:
(a)
the Contract; and
(b)
the Project.
Victoria Police does not release Candetti from any Latent Defects in the construction of the
Project. Victoria Police confirms that as at the Settlement Date, it is not aware of any Latent
Defects.
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Deed of Settlement and Release
5.4
The releases in Clause 5.1 and 5.2 do not apply to any Claims the Parties may have against
each other arising out of any breach of this Deed.
Benefits of Releases to include related companies etc
5.5
The benefit of any release given in this Deed to any Party is also given to all that Party's
Related Bodies Corporate and to all the directors, officers, employees and agents of that Party
and its Related Bodies Corporate. Each Party acts as an agent of all its Related Bodies
Corporate, its directors, officers and employees and the directors, officers and employees of its
Related Bodies Corporate in respect of the releases given in this Deed and enters into the
releases for the benefit of those persons in addition to its own benefit.
6
Bar to action and covenant not to sue
6.1
The Parties agree that the releases provided in this Deed may be pleaded as a bar to any action,
suit or proceeding commenced now or taken at any time by any of the Parties against any of
the other Parties, or any person on behalf of a Party, with respect to or in any way connected
with the subject matter of the releases.
6.2
Each of the Parties to this Deed covenants not to bring any action, suit or proceedings against
any of the other Parties based in any way on any Claim which is the subject of a release in
clause 5 of this Deed even if one or both of the releases contained in that clause prove to be
ineffective for any reason.
7
No admission of liability
7.1
Nothing in this Deed is to be construed as an admission of liability by any Party in relation to
the Dispute.
8
Authority to Sign and Legal Advice
8.1
Each Party warrants to the other(s) that:
9
(a)
it has full power and authority to enter into and perform this Deed; and
(b)
it has received legal advice regarding the subject matter of this Deed (including,
without limitation, the releases contained in this Deed) before entering into this Deed.
Confidentiality to be preserved
Provisions to remain confidential
9.1
The Parties acknowledge that the terms of this Deed are confidential. Each Party must keep
the terms of this Deed confidential and must not disclose or permit to be disclosed (or further
disclose) to any person:
(a)
the content or effect of this Deed;
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Deed of Settlement and Release
(b)
the detail of any disputes which previously existed between the Parties except to the
extent that those details are already public knowledge.
However, each Party may make disclosures as set out in Clause 9.2 of this Deed.
Permitted disclosures
9.2
A Party may make disclosures:
(a)
with the prior written consent of the other Party; or
(b)
to those of its employees, officers, professional or financial advisers, bankers and
creditors, as the Party reasonably thinks necessary to give effect to this Deed but only
on a strictly confidential basis; and
(c)
to the extent that the Party is compelled to disclose them by law, after the form and
terms of that disclosure have been notified to the other Party and the other Party has
had a reasonable opportunity to comment on the form and terms.
10
No assignment of rights or obligations under this Deed
10.1
The agreements in this Deed are personal to the Parties and may not be assigned.
11
General
Non-merger
11.1
The warranties, other representations and agreements made by the Parties in this Deed are
continuing and will not merge or be extinguished by payment of any monies payable under
this Deed.
Invalid or unenforceable provisions
11.2
If a provision of this Deed is invalid or unenforceable in a jurisdiction:
(a)
it is to be read down or severed in that jurisdiction to the extent of the invalidity or
unenforceability; and
(b)
it does not affect the validity or enforceability of:
(i)
that provision in another jurisdiction; or
(ii)
the remaining provisions.
Waiver and exercise of rights
11.3
A waiver by a Party of a provision or of a right under this Deed is binding on the Party
granting the waiver only if it is given in writing and is signed by the Party or an officer of the
Party granting the waiver.
11.4
A waiver is effective only in the specific instance and for the specific purpose for which it is
given.
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Deed of Settlement and Release
11.5
A single or partial exercise of a right by a Party does not preclude another or further exercise
of that right or the exercise of another right.
11.6
Failure by a Party to exercise or delay in exercising a right does not prevent its exercise or
operate as a waiver.
Amendments to this Deed
11.7
This Deed may be amended only by a document signed by all Parties.
Counterparts and exchange
11.8
This Deed may be signed in counterparts and all counterparts taken together constitute one
document.
11.9
A facsimiled executed copy of this Deed may be exchanged, however the Party exchanging by
facsimile must deliver the original executed version of the Deed to the other Party with a
reasonable time after exchange.
11.10 Delivery of this Deed may be effected by the Parties' legal advisors.
Costs
11.11 Each Party must pay its own costs (including its own legal costs) of the negotiation,
preparation, execution and performance of this Deed.
Further assurances
11.12 Each Party agrees to promptly do or arrange for others to do everything, including executing
any documents, reasonably necessary to give full effect to this Deed and the transactions
contemplated by this Deed and as required to give the other Parties the full benefit of this
Deed.
Entire Agreement
11.13 This Deed is the entire agreement of the Parties about the subject matter of this Deed and
supersedes any representations, negotiations, arrangements, understandings or agreements and
all other communications.
Governing Law and jurisdiction
11.14 This Deed is governed by the laws of Victoria and each Party irrevocably and unconditionally
submits to the non-exclusive jurisdiction of the courts of Victoria.
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Deed of Settlement and Release
Annexure A
DOCUMENT TO FOLLOW
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Deed of Settlement and Release
Properties Branch
Infrastructure & IT Department
Level 12, Tower 4
World Trade Centre
637 Flinders Street
DOCKLANDS 3008
VICTORIA, AUSTRALIA
DX
210096
Telephone (03) 9247 6215
Facsimile (03) 9247 6211
Ref: P3100CN
[insert date]
Mr A Candetti
Candetti Constructions
Level 1, 29 Anzac Highway
KESWICK SA 5035
Dear Mr Candetti
NEW MILDURA POLICE STATION
I refer to recent discussions regarding the above new Police Station and I once again
congratulate Candetti Constructions on the successful completion of the project and reaffirm
that my office holds your company in the highest regard in terms of your ability to deliver
such a wonderful end product. The facility has often been the subject of unsolicited
favourable comment by Victoria Police members and other users of the Station and I look
forward to working with Candetti Constructions again should future similar opportunities
arise.
Yours sincerely
BRUCE CROWE
Manager – Capital Works
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Deed of Settlement and Release
Annexure B
DOCUMENT TO FOLLOW
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Deed of Settlement and Release
Executed as a deed.
Signed by
The Minister for Police and Emergency
Services for the time being for the
State of Victoria in the presence of:
Signature of witness
Signature of the Honourable Peter Ryan, MP
Name of witness (please print)
Signed by
Candetti Constructions Pty Ltd
(ABN 17 007 657 150) in accordance with
section 127 of the Corporations Act 2001 by a
director and secretary/director:
Signature of director
Signature of director/secretary
Name of director (please print)
Name of director/secretary (please print)
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Deed of Settlement and Release