Commonwealth Consolidated Acts Commonwealth Consolidated Acts
TABLE OF CONTENTS
Date of Agreement
Recitals
Clause
1. Definitions and Interpretations
2. Agreement
3. Unit Fee
4. Further Amending Act
5. Grant of Exclusive Right
6. Adoption and Application of the Agreement
7. Non - merging on Settlement and Severability
8. Stamp Duty
9. Applicable Law
10. Waiver
11. Amendments or Variation
12. Assignment
Schedule of Amendments to Principal Agreement
AN AGREEMENT made the fifth day of November 1990
BETWEEN
the COMMONWEALTH OF AUSTRALIA
(hereinafter referred to as "the Commonwealth") of the one part
and
WESTPAC BANKING CORPORATION
of 60 Martin Place, Sydney
in the State of New South Wales
(hereinafter referred to as "the Bank") of the other part.
WHEREAS:
A. Under the Agreement between the Commonwealth and the Bank dated 9 November 1988 pursuant to the Amending Act the Bank acquired from the Commonwealth the interests of the Defence Service Homes Corporation ("the Corporation") in the Portfolio Assets and the exclusive right to provide Subsidised Advances and other benefits upon which subsidy is payable to all persons satisfying the tests of eligibility and entitlement under the Amended Act.
B. The Commonwealth proposes to introduce legislation to vary the categories of Subsidised Advances provided pursuant to the Amended Act by varying the Subsidy Scheme so as to introduce the Variation Advances.
C. The Bank wishes to acquire from the Commonwealth the exclusive right to provide the Variation Advances to all persons who satisfy the tests of eligibility and entitlement in respect of same under the Amended Act.
D. The Commonwealth is willing to provide to the Bank the exclusive right to provide the Variation Advances to all persons who satisfy the tests of eligibility and entitlement under the Defence Service Homes Act 1918 as amended by the Veterans' Affairs Legislation Amendment Bill 1990.
E. The Commonwealth is willing to pay to the Bank a Subsidy in respect of the Variation Advances granted to all persons who satisfy the tests of eligibility and entitlement under the Defence Service Homes Act 1918 as amended by the Veterans' Affairs Legislation Amendment Bill 1990.
F. The Bank is willing to pay to the Commonwealth a fee in respect of each Subsidised Advance which is a Variation Advance granted by the Bank.
G. In order to give effect to this Supplementary Agreement the Commonwealth and the Bank agree to amend the Agreement in the manner set out in the Schedule to this Supplementary Agreement and for the purposes of this Supplementary Agreement and its construction to abide by and act in accordance with the provisions of the Agreement as so amended.
H. The Commonwealth and the Bank acknowledge that this Supplementary Agreement is dependent upon the passage of legislation governing same, by the Parliament of the Commonwealth of Australia.
NOW THEREFORE IT IS AGREED AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATIONS
In this Agreement except where the context otherwise requires:
1.1 Definitions
Amended Agreement-- | means the Agreement as amended by the Supplementary Agreement. |
Further Amending Act-- | means Part 2 of the Veterans' Affairs Legislation Amendment Act 1990. |
Retirement Village-- | has the same meaning as in the Further Amending Act. |
Retirement Village Accommodation-- | has the same meaning as in the Further Amending Act. |
Right of residence in a retirement village-- | has the same meaning as in the Further Amending Act. |
Supplementary Agreement-- | means this Agreement. |
Unit Fee-- | means the fee payable by the Bank to the Commonwealth for each Variation Advance granted pursuant to this Supplementary Agreement. |
Unit Fee Claim Period-- | means the twelve month period immediately preceding the date of the invoice referred to in Sub - clause 3.3. of this Supplementary Agreement and, for the period preceding 1 May 1991, the period between the date of execution of this Supplementary Agreement and 1 May 1991. |
Variation Advance-- | means-- (a) (i)a Subsidised Advance made by the Bank in accordance with a Certificate of Entitlement issued under Subsection 18(2)(g), (h), (j) and (k) of the Defence Service Homes Act 1918 as amended by Part 2 of the Veterans' Affairs Legislation Amendment Bill 1990; |
| (ii) a Subsidised Advance made by the Bank in accordance with a Certificate of Entitlement relating to a person's retirement village accommodation or right of residence in a retirement village issued under Subsection 18(3)(a)(ii), (d)(ii) and (f), Subsection 20(2)(a) and (b) and Subsection 21(c) of the Defence Service Homes Act 1918 as amended by Part 2 of the Veterans' Affairs Legislation Amendment Bill 1990; and (b) a Further Advance made by the Bank in accordance with a Certificate of Entitlement issued under Section 19 of the Defence Service Homes Act 1918 as amended by Part 2 of the Veterans' Affairs Legislation Amendment Bill 1990 to a person who is or was a purchaser or borrower in relation to a Corporation advance, a Subsidised Advance or a Contract of Sale on 9 December 1987. |
1.2.1 Where this Supplementary Agreement includes a reference to a term which is defined in the Agreement the definition in the Agreement as amended by this Supplementary Agreement is to be applied except where the contrary intention is expressed.
1.3 Interpretation
1.3.1 Words importing one gender shall include the other gender.
1.3.2 Words importing the singular shall include the plural and vice - versa.
1.3.3 A reference to a Clause shall be a reference to all of its Sub - clauses, and a reference to a Sub - clause shall be a reference to all its Sub - sub - clauses unless the context otherwise admits.
1.3.4 The Clause headings in this Supplementary Agreement are for reference only and have no effect on the construction, interpretation or meaning of the Clauses.
1.3.5 The Schedule referred to herein forms part of and is subject to the terms of this Supplementary Agreement.
1.3.6 Where in this Supplementary Agreement any period of time dating from a given day, act or event, is prescribed or allowed for any purpose, the time shall, unless the contrary intention appears, be reckoned inclusive of such day or of the day of such act or event.
1.3.7 Where the last day of any period prescribed or allowed by this Supplementary Agreement for the doing of anything falls on a Saturday, or on a Sunday or on a day which is a public holiday or a bank holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following which is not a Saturday, or Sunday or public holiday or bank holiday in that place.
1.3.8 Where in this Supplementary Agreement any reference to time occurs, such time shall, unless it is otherwise specifically stated, be deemed in each State or part of the Commonwealth to mean the standard or legal time in that State or part of the Commonwealth.
1.3.9 A reference to a Clause shall be a reference to a Clause in this Supplementary Agreement unless otherwise specified.
1.3.10 A reference to the parties shall be a reference to the parties to this Supplementary Agreement.
1.3.11 All sums of money and all payments made under this Supplementary Agreement shall be in Australian dollars.
2. AGREEMENT
2.1 The Bank agrees to provide Variation Advances in the same manner as prescribed with respect to Subsidised Advances under the provisions of the Amended Agreement.
2.2 The Commonwealth agrees to grant the Bank the exclusive right to receipt of Subsidy in respect of each Variation Advance pursuant to Clause 5 hereof.
2.3 The Commonwealth further agrees to pay to the Bank a Subsidy with respect to each Variation Advance in accordance with the provisions of Clause 11 of the Amended Agreement.
2.4 The Bank further agrees that with respect to each Variation Advance it shall be bound by and act at all times in accordance with this Supplementary Agreement and the Amended Agreement.
2.5 The Commonwealth and the Bank agree that in order to give effect to this Supplementary Agreement the provisions of the Agreement are to be amended in accordance with the provisions of the Schedule to this Supplementary Agreement.
3. UNIT FEE
3.1 The Bank agrees to pay to the Commonwealth
(a) a minimum Unit Fee of four hundred dollars ($400.00) for each advance falling within paragraphs (a) (i) and (b) of the definition of Variation Advance which it grants pursuant to this Supplementary Agreement; and
(b) in each Unit Fee Claim Period, a further amount equivalent to the product of:
(i) the minimum Unit Fee; and
(ii) the number of Borrowers the sum total of whose first advance being an advance falling within paragraphs (a) (i) or (b) of the definition of Variation Advance and any other unsubsidised loan funds from the Bank provided to the Borrowers at the same time and for the same purpose as such Variation Advance exceeds sixty thousand dollars ($60,000.00); and
(iii) the fraction the numerator of which is the average amount by which each of the borrowings referred to in Sub - clause 3.1(b)(ii) exceeds sixty thousand dollars ($60,000.00) and the denominator of which is sixty thousand dollars ($60,000.00).
(c) In the event that the Commonwealth or any State or Territory legislature enacts legislation which restricts the Bank's ability to set its Establishment Fees as the Bank determines and as a result the Bank receives less by way of Establishment Fees than would otherwise have been the case the Bank shall have the right to reduce the amount payable to the Commonwealth pursuant to Sub - clause 3.1(b) by the difference between what it would have received in Establishment Fees and what it has in fact received and in the event of a dispute or disagreement arising between the Commonwealth and the Bank as to the amount of the reduction, the provisions of Sub - clause 3.6 shall apply.
3.2 For the purposes of this Clause the Bank shall be taken to have granted a Variation Advance to an Entitled Applicant upon the execution by the Entitled Applicant of all necessary mortgage or security documentation, or if mortgage or security documentation does not exist or is not required by the Bank, the date on which the Borrower first draws upon the Variation Advance.
3.3 On or after 1 May of each year commencing on 1 May 1991 the Commonwealth shall provide to the Bank a written invoice detailing its claim for payment of the Unit Fee referred to in Sub - clause 3.1 in respect of the Unit Fee Claim Period.
3.4 The Bank shall pay the Commonwealth the total amount by way of Unit Fee which the Bank has verified by 11:00 am. on the day which is thirty (30) days after receipt of the Commonwealth's invoice pursuant to Sub - clause 3.3.
3.5 Payment shall be made by depositing a cheque for the relevant amount with the Receiver of Public Monies, Department of Veterans' Affairs, Sydney, New South Wales or in such other manner as the Commonwealth may from time to time advise.
3.6 In the event of a dispute or disagreement arising between the Commonwealth and the Bank as to the amount payable to the Commonwealth by the Bank in accordance with this Supplementary Agreement the following provisions shall apply:
3.6.1 In the event that any such dispute or disagreement cannot be resolved between the Commonwealth and the Bank within a period of seven (7) days after first occurring, the dispute or disagreement is to be referred to arbitration in accordance with the procedure outlined in Clause 26 of the Agreement, except that the Commonwealth and the Bank agree that for the purpose of such dispute/disagreement the arbitrator shall be appointed by the President for the time being of the Australian Institute of Chartered Accountants.
3.6.2 Upon resolution of such dispute or disagreement in the event that there has been an overpayment by the Bank to the Commonwealth of the amount of the Unit Fee the Commonwealth shall pay to the Bank within seven (7) days of such resolution by way of adjustment the amount of such overpayment.
3.6.3 The Commonwealth and the Bank agree that the amount of adjustment shall bear interest at the Benchmark rate fixed in accordance with Sub - clause 11.10 of the Agreement.
4. FURTHER AMENDING ACT
4.1 This Supplementary Agreement is binding on the parties but, except for this Clause, is subject to and conditional upon Part 2 of the Veterans' Affairs Legislation Amendment Act 1990 being passed by Parliament in the form of the draft Bill initialled on behalf of the parties at the time of execution of this Supplementary Agreement with such amendments only as are agreed in writing by the parties.
4.2 In the event that Part 2 of the Veterans' Affairs Legislation Amendment Act 1990 passed by Parliament should contain any amendments from the draft Bill referred to in Sub - clause 4.1 the Commonwealth shall within two (2) days of the passage of the Veterans' Affairs Legislation Amendment Act 1990 give notice to the Bank of the amendments together with such information relating to those amendments as it wishes to provide.
4.3 If in the opinion of the Bank, such amendments:
(a) alter the obligations of the Bank set out in the Agreement, the Supplementary Agreement or the draft Bill;
(b) alter the arrangements for the payment of Subsidy set out in the Agreement, the Supplementary Agreement or the draft Bill;
(c) reduce or restrict the entitlements of persons set out in the Agreement, the Act or the draft Bill in a way which is likely to reduce, from levels applying in recent years, the number of Entitled Applicants for advances;
(d) alter the obligations of the Commonwealth set out in the Agreement, the Supplementary Agreement, the Amended Act or the draft Bill; or
(e) result in any financial consequences which are adverse to the Bank,
and are unacceptable to the Bank, the Bank shall notify the Commonwealth of such opinion within seven (7) days of receipt of the notice under Sub - clause 4.2, or such further period as may be agreed upon by the parties, and upon receipt of such notice this Supplementary Agreement shall terminate.
4.4 In the event that the Bank does not give notice under Sub - clause 4.3, it shall be taken to have agreed to such amendments for the purposes of Sub - clause 4.1.
4.5 The Commonwealth agrees that Part 2 of the Veterans' Affairs Legislation Amendment Bill 1990 referred to in Sub - clause 4.1 which is submitted to Parliament shall have only such amendments as may be agreed in writing between the parties.
4.6 In the event that Part 2 of the Veterans' Affairs Legislation Amendment Act 1990 is not passed in the form of the draft Bill referred to in Sub - clause 4.1 and, as a result, the condition contained in Sub - clause 4.1 is not met and this Supplementary Agreement is terminated or has no force or effect, neither the Bank nor the Commonwealth will have any right to claim compensation, losses, expenses, costs or damages arising or resulting from this Supplementary Agreement against the other.
5. GRANT OF EXCLUSIVE RIGHT
5.1 The Commonwealth hereby grants to the Bank on the terms set out in this Supplementary Agreement the exclusive right to provide the first twenty five thousand dollars ($25,000.00), or such other amount as may be agreed upon by the parties, of the Variation Advances upon which Subsidy is payable to all persons who satisfy the tests of eligibility and entitlement under the Defence Service Homes Act 1918 as amended by the Veterans' Affairs Legislation Amendment Bill 1990.
5.2 The Commonwealth agrees to notify all persons who seek Subsidised Advances in accordance with the Variation Advances under Part 2 of the Veterans' Affairs Legislation Amendment Act 1990 that the Bank has the exclusive right to grant these Variation Advances.
6. ADOPTION AND APPLICATION OF AGREEMENT
The Commonwealth and the Bank agree that they will adopt, apply, read and construe this Supplementary Agreement in accordance with the provisions of the Agreement as amended by the Schedule to this Supplementary Agreement.
7. NON - MERGING ON SETTLEMENT AND SEVERABILITY
Any provision in this Supplementary Agreement which is to take effect after the last date of commencement of Part 2 of the Veterans' Affairs Legislation Amendment Bill 1990, shall not merge on settlement but rather shall continue in full force and effect.
8. STAMP DUTY
Any stamp duty arising out of this Supplementary Agreement or its implementation shall be borne by the Bank.
9. APPLICABLE LAW
This Supplementary Agreement shall be governed by and construed in accordance with the law for the time being in force in the Australian Capital Territory and the parties hereto agree to submit to the non - exclusive jurisdiction of the Courts of the Australian Capital Territory.
10. WAIVER
Failure by either party at any time to enforce any of the provisions of this Supplementary Agreement or any amendments pursuant thereto by the other party shall not be contrued as a waiver by such party of such provision or in any way affect the validity of this Supplementary Agreement or any part thereof, or the rights of the other party thereafter to enforce each and every such provision. The waiver by either party of any provision of this Supplementary Agreement shall not constitute a waiver of any future obligation to comply with such provision.
11. AMENDMENTS OR VARIATION
No variation, modification or waiver of any provision of this Supplementary Agreement nor consent to any departure by any party therefrom shall in any event be of any force or effect unless the same shall be confirmed in writing, signed by all the parties hereto, and then such variation, modification, waiver or consent shall be effective only to the extent for which it may be made or given.
12. ASSIGNMENT
This Supplementary Agreement may not be assigned in whole or in part by either party without the prior written consent of the other party.
IN WITNESS WHEREOF the parties have executed this Agreement as at the day and year first before written:
SCHEDULE OF AMENDMENTS TO AGREEMENT
Clause 1
Amend the following definitions:
Establishment Fees: | Insert the words "or applications for retirement village accommodation" after the words "secured by first mortgage". |
Housing Loan Customer: | Insert the words "or retirement village accommodation" after the words "or refinance of a dwelling". |
Portfolio Arrears: | Insert the words "on the last day of the month immediately preceding the month in which a Subsidy payment is being calculated" after the words "and all Subsidised Advances". |
Insert the following new definitions:
Amended Agreement: | means the Agreement between the Commonwealth and the Bank signed on 9 November 1988 as amended by the Supplementary Agreement between the parties signed on fifth day of November 1990. |
Further Amending Act: | has the same meaning as in the Supplementary Agreement. |
Retirement Village: | has the same meaning as in the Further Amending Act. |
Retirement Village Accommodation: | has the same meaning as in the Further Amending Act. |
Right of residence in a retirement village: | has the same meaning as in the Further Amending Act. |
Supplementary Agreement: | means the Agreement signed by the Commonwealth and the Bank on the fifth day of November 1990. |
Variation Advance: | has the same meaning as in the Supplementary Agreement. |
Clause 5
5.1.2 | Insert "unless the Commonwealth and the Bank otherwise agree" after the words "any such application". |
Clause 7
7.3 | Insert "or such other security" after the words "first mortgage". Insert "(if any)" after the words "and documentation". |
Clause 8
8.3 | Insert after Sub - clause 8.3(b) the word "or". Insert a new Sub - clause 8.3(c) after Sub - clause 8.3(b): "(c) where the Borrower has been granted an advance falling within paragraph (a) of the definition of Variation Advance the Bank shall not be required to take any security." |
8.8 | Insert the words "or any other security, if any, which the Bank deems appropriate." At the end of the Sub - clause. |
Clause 9
9.4.3 | Insert the words "or other mortgage or security documentation, if any," after the words "by the first mortgage". |
Clause 10
10.1(b) | Insert the words: "or retirement village accommodation" after the words "or land and dwelling house". |
10.1(e) | Insert the words "or retirement village accommodation" after the word "land and dwelling house." |
10.1(f) | Insert the words "or retirement village accommodation" after the words "any other dwelling house;" |
10.1(g) | Insert the words "or retirement village accommodation" after the words "occupation of dwelling house." And delete the word "and" at the end of this paragraph. |
10.1(h) | Insert the word "; and" at the end of this paragraph. |
Insert a new Sub - clause 10.1(i) after Sub - clause 10.1(h) in the following terms:
"written notice that the Entitled Applicant's right of residence in a retirement village has been terminated."
Clause 11
Delete Sub - clause 11.5 and insert the following:
11.5.1 | Except where the provisions of Sub - clause 11.5.2 apply upon receipt by the Commonwealth of the invoice and information referred to in Sub - clause 10.5 the Commonwealth shall pay the Bank the amount of Subsidy which the Commonwealth has verified by 11:00 am. On the eighteenth day of the month to which such invoice and information refers. |
11.5.2 | If the Bank has not complied with the requirements of Clause 11.4 in respect of its claim for Subsidy on certain Specified Portfolio Assets and Subsidised Advances, but subsequently provides the invoice and information referred to in Sub - clause 10.5, the Commonwealth shall pay to the Bank the amount of Subsidy which it has verified by 11 am on the day which is seven (7) business days after the date on which the Bank provides the said invoice and information. The Commonwealth will promptly pay to the Bank claims verified after that date. |
Clause 22
Delete the Commonwealth's Fax number recorded as: (062) 813 822
Insert the following new Fax numbers for the Commonwealth:
(06) 282 3672 and/or (06) 285 2608
Insert the following after the words "For attention the Secretary":
"Notices issued to the Commonwealth should also be addressed to:
State Manager
Defence Service Homes
in the State/Territory in which the Westpac account is held."
Insert: "Notices issued to the Bank should be addressed to:
Delete the words: "66 Pitt Street, Sydney".
Insert the words:
"Australian Marketing Group
P.O. Box H258
Australia Square
Sydney, N.S.W. 2001"
Schedule D
E. REPORT--INDIVIDUAL ADVICE
Insert the words "or retirement village
accommodation" after "dwelling house" wherever the latter
appears.".