Victorian Current Acts Victorian Current ActsSCHEDULE
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THIS AGREEMENT is made the tenth day of October One thousand nine hundred and fifty-six BETWEEN The Honorable GORDON STEWART McARTHUR in his capacity as Minister of Forests for the time being of the State of Victoria (hereinafter called "the Minister") for and on behalf of the State of Victoria of the one part FORESTS COMMISSION incorporated by the provisions of the Forests Act 1928 of the said State (hereinafter called "the Commission") of the second part and MASONITE CORPORATION (AUSTRALIA) PTY. LIMITED a company incorporated in the State of New South Wales the registered office of which in Victoria is situate at 533 Collins-street Melbourne (hereinafter called "the Corporation") of the third part—
WHEREAS:
I. The Corporation is desirous of establishing in the State of Victoria the industry of manufacturing Masonite and other forms of hardboard from pulpwood obtained from forests controlled by the Commission in the Forest Area defined in clause 1 of this Agreement.
II. Before the Corporation incurs the expenditure involved in the industry it will be necessary for it to be satisfied that certain rights and powers incidental to the establishment and carrying on of the industry will be assured to it.
III. In order to effectuate the establishment and carrying on of the industry the parties hereto are desirous of entering into the Agreement following so that upon its ratification validation and approval by the Parliament of the State of Victoria the Commission and the Corporation shall become bound in manner hereinafter appearing.
NOW IT IS HEREBY AGREED as follows:
PART I—PRELIMINARY
In this Agreement unless inconsistent with the context or subject-matter—
"the Act" means the Act of the Parliament of Victoria to be passed to ratify validate approve and otherwise give effect to this Agreement;
"this Agreement" includes this Agreement as from time to time amended;
"commercial production" means production by the Corporation at a rate of not less than 10 000 tons a year continued for at least one month of Masonite from pulpwood obtained under this Agreement;
"Commission" means the said Forests Commission and if that Commission ceases to exist means the body corporate or persons for the time being charged with the duties or substantially the same duties now performed by the Forests Commission;
"Corporation" means the said Masonite Corporation (Australia) Pty. Limited and
if in accordance with clause 4 of this Agreement a subsidiary company is
incorporated or the rights of the Corporation are assigned to any company
includes that subsidiary or assignee company;
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"date of commencement" means the first day of the month following the date of the commencement of the Act;
"Forest Area" means State forest existing from time to time within the area surrounded by a red verge on the map annexed hereto or if that area is varied in accordance with clause 17 hereof that area as so varied;
"forest officer" has the same meaning as in the Forests Act 1928 ;
"forest produce" has the same meaning as in the Forests Act 1928 ;
"the industry" means—
(a) manufacture by the Corporation in the State of Victoria of Masonite from pulpwood; and
(b) investigations preliminary to and in connexion with such manufacture and the supply and preparation materials therefor; and
(c) the carrying on of processes incidental to such manufacture;
"Masonite" includes any other form of hardboard;
"minimum annual supply of pulpwood" means—
(a) until the end of the year within which the date of commencement falls and for the three years next following—nil;
(b) for the fourth year next following the year within which the date of commencement falls 50 000 tons; and
(c) thereafter—60 000 tons a year;
"Minister" means the responsible Minister of the Crown for the time being administering the Forests Act 1928 ;
"mixed species" means any species of tree (other than Eucalyptus delegatensis syn. Eucalyptus gigantea and Eucalyptus regnans) the timber of which is suitable for use in making Masonite;
"month" means calendar month;
"pulpwood" means timber stripped of bark and suitable for use in making Masonite;
"State forest" has the same meaning as in the Forests Act 1928 ;
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"term of this Agreement" means—
(a) the period of fifty years commencing on the date of commencement; or
(b) if this Agreement is determined before the expiration of that period the period commencing on the date of commencement and ending on the date of determination;
"timber" has the same meaning as in the Forests Act 1928 ;
"ton" means 2240 pounds weight;
"year" means calendar year and "annually" has a corresponding meaning.
(1) In this Agreement unless inconsistent with the context or subject-matter references to any Act shall include all amendments thereof for the time being in force and all later Acts by which provisions of the former Act are re-enacted with or without modification and all supplemental legislation for the time being in force whether by regulation rule proclamation or order made under authority conferred by that Act or any amendment or re-enactment thereof.
(2) The headings and sidenotes shall not affect the interpretation of this Agreement.
(1) This Agreement shall not be of any force or effect until it has been ratified validated approved and otherwise given effect by an Act of the Parliament of Victoria.
(2) The Minister undertakes that he will use his best endeavours—
(a) to introduce as soon as possible into the said Parliament a Bill to ratify validate approve and otherwise give effect to this Agreement which Bill shall provide for the Act coming into operation on a date to be proclaimed; and
(b) to have the said date proclaimed not later than three months after the date on which the Act is passed by the said Parliament.
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(1) The Corporation shall be at liberty at any time with the consent of the Minister in writing signed by him—
(a) to procure the incorporation of a subsidiary company to exercise as the nominee of the Corporation its rights under this Agreement and the Act; and
(b) to assign its rights under this Agreement and the Act to such subsidiary company or to any other company.
(2) After such incorporation or assignment and after notice thereof to the Minister the following provisions shall have effect—
(a) the subsidiary or assignee company shall by virtue of the assignment and the Act be subject to all the obligations and conditions imposed upon the Corporation by this Agreement so far as they remain in force and are capable of taking effect;
(b) the Corporation shall remain responsible to the Minister and the Commission for the performance of all its obligations under this Agreement as if no subsidiary company had been formed or assignment made.
In using its powers and applying its discretions whether under this Agreement or the Act or the Forests Act 1928 the Commission shall give full recognition to the fact that the Corporation is engaged in a competitive business and so far as the interests of proper forest management allow the Commission (which shall be the sole judge of what is proper forest management) shall so act in every reasonable way as to enable and assist the Corporation to carry on the industry in the most economic manner.
PART II—OPERATION OF INDUSTRY
Division A—Duration of Agreement
The provisions of this Agreement shall remain in force until the expiration of
the term of this Agreement and thereupon the rights interests powers and
privileges granted to the Corporation shall determine.
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The cessation of the effect of this Agreement shall not affect the enforcement of any right obligation or liability theretofore acquired accrued or incurred.
Division B—Timber Rights
The Forests Act 1928 shall apply to and with respect to all operations of the Corporation in the Forest Area except in so far as that Act may be inconsistent with the provisions of this Agreement.
(1) Save as expressly provided by this Agreement or the Act nothing in this Agreement or the Act shall affect the rights powers and privileges acquired (whether before or after the commencement of the Act) under the Forests Act 1928 or any other Act by any person.
(2) Notwithstanding anything contained in this Agreement or the Act any person who has acquired any rights powers and privileges as aforesaid shall be entitled to the full and free right of entry to the area in respect of which they were or are acquired.
Subject to the Commission's compliance with the obligations expressed in clause 14 hereof nothing in this Agreement shall operate so as to restrict the Commission's rights pursuant to the Forests Act 1928 to sell forest produce to meet the reasonable requirements of the general public. The Commission shall be the sole judge as to what are reasonable requirements within the meaning of this clause.
(1) Within three months after the date of commencement the Corporation shall deliver to the Commission a statement of the quantity of pulpwood which it desires to obtain from the Forest Area during the period (in this clause called "the first period") which comprises the remainder of the year in which the date of commencement occurs and the two years next following.
(2) Within three months after receipt of the
statement referred to in sub-clause (1) hereof the Commission shall draw up
and deliver to the Corporation a plan of utilization for the first period.
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(3) During the last three months of—
(a) the year commencing on the first day of January next following the date of commencement; and
(b) the second year of each period of three years after the first period—
the Corporation shall deliver to the Commission a statement of the quantity of pulpwood which it desires to obtain annually during the next succeeding period.
(4) Within nine months after the receipt of a statement in accordance with sub-clause (3) hereof the Commission shall draw up and deliver to the Corporation a plan of utilization for the period in respect of which the statement is prepared.
(5) The Commission and the Corporation may during the currency of any plan of utilization agree to a modification of the plan.
(6) The Corporation shall conform with each plan or modified plan of utilization.
(1) The Corporation shall carry out or cause to be carried out to the satisfaction of the Commission all operations under this Agreement on the Forest Area.
(2) The Corporation shall have the right (subject to the Act and the Forests Act 1928 but without obtaining any lease licence permit or authority so to do) either itself or by contractors to fell and remove pulpwood from the Forest Area.
(1) Subject to the provisions of clause 10 hereof
and to compliance by the Corporation with the provisions of clause 11
hereof the Corporation without obtaining any lease licence permit or authority
under the Forests Act 1928 shall have the exclusive right to obtain pulpwood
from trees of mixed species in the Forest Area other than any trees that are
indicated by a forest officer as being required for silvicultural or watershed
protection purposes.
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(2) Notwithstanding anything herein contained the Commission may make available to the Corporation from the Forest Area pulpwood from trees of the species Eucalyptus regnans and Eucalyptus delegatensis in such quantities from such locations under such conditions and at such royalty rates as are agreed upon from time to time between the Commission and the Corporation.
(3) The Corporation shall take all pulpwood from timber of mixed species available to it from operations carried out by or on behalf of the Commission within the Forest Area:
Provided that the Corporation shall not be required under this sub-clause to take any pulpwood in respect of which delivery cannot be effected at the Corporation's works at Eildon at an economic price and in the event of the Commission and the Corporation being unable to agree in any case as to whether the price is economic or not the matter shall be determined in accordance with clause 32 hereof.
(4) Where pursuant to the last preceding sub-clause the Corporation is not required to take any pulpwood the Commission shall notwithstanding anything contained in this Agreement be entitled to dispose of that pulpwood either as pulpwood or otherwise in such manner and to such persons as it thinks fit.
(5) Any pulpwood taken by the Corporation under the provisions of sub-clauses (2) and (3) of this clause shall for the purposes of clause 18 and sub-clause (1) of clause 14 hereof be included in the quantity of pulpwood made available by the Commission and taken by the Corporation.
(1) The Commission—
(a) shall be bound in each year to make available to the Corporation from the Forest Area such quantity of pulpwood not exceeding 120 000 tons as the Corporation may require;
(b) may in its discretion make available as aforesaid at the request of the Corporation in any year a quantity of pulpwood exceeding 120 000 tons.
(2) Any pulpwood of mixed species made available in accordance with the last preceding sub-clause shall so far as the Commission is able to do so be supplied in the following proportions—
(a) Peppermint—55 per centum;
(b) Messmate—30 per centum;
(c) other species—15 per
centum.
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The Corporation shall be bound to accept or take any pulpwood which is not less than four feet in length and which has a minimum diameter at the smaller end of not less than four inches.
For all pulpwood obtained by the Corporation under this Agreement it shall pay—
(a) as to pulpwood which the Corporation either by itself or its contractors fells and removes—the royalty payable from time to time under the provisions of this Agreement; and
(b) as to pulpwood obtained from timber either felled or felled and removed by or on behalf of the Commission—the royalty payable as aforesaid together with a fair and reasonable charge to be agreed upon from time to time between the Commission and the Corporation for the cost of felling or of felling and removal of the timber:
PROVIDED that if the Commission and the Corporation fail to agree upon the amount of that charge it shall be determined in accordance with clause 32 hereof.
Within one year prior to the expiration of each period of ten years after the date of commencement—
(a) representatives of the Commission and of the Corporation shall investigate the development of the industry and the supplies of pulpwood available in the Forest Area;
(b) in the light of each such investigation the Commission—
(i) may increase the Forest Area by the inclusion of an additional area of State forest within a radius not exceeding forty miles from the township of Eildon; or
(ii) may reduce
the Forest Area to an area capable in its opinion of producing supplies of
pulpwood adequate for the continuance of the industry.
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Subject to the provisions of clauses 29 and 30 hereof the Corporation shall be bound in each year in which the minimum annual supply of pulpwood to which it is entitled in that year (in this clause called "the minimum quantity") is available to it either—
(a) to take not less than 90 per centum of the minimum quantity from the Forest Area; or
(b) if it takes less than 90 per centum of the minimum quantity to pay royalty to the Commission on 90 per centum of the minimum quantity at the rate payable in that year under clauses 20 and 21 hereof.
The following provisions shall apply with respect to royalty payable under this Agreement—
(a) royalty shall be payable at such times after the amounts have been ascertained and in such manner as the Commission from time to time determines; and
(b) if any payment of royalty due by the Corporation remains unpaid for sixty days after the Commission has demanded payment thereof the Commission by notice in writing to the Corporation may suspend its right to obtain further supplies of pulpwood under this Agreement until payment is made.
Royalty on all pulpwood obtained by the Corporation under this Agreement during the period of twelve years commencing on the date of commencement shall be paid at the rate of One shilling and ten pence a ton.
At any time after the expiration of twelve years after the date of commencement the rate of royalty prescribed in the last preceding clause may be reviewed at the instance of the Commission or the Corporation so that—
(a) if the Commission and the Corporation fail to agree as to the rate of royalty to be paid during any period the rate shall subject to the succeeding provisions of this clause be determined as provided in clause 32 hereof;
(b) in any such determination the
arbitrators or their umpire shall take into consideration any alteration in
circumstances and any other relevant matters which either of the parties to
the reference may bring before the arbitrators or the umpire;
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(c) the arbitrators or umpire or some person appointed on their behalf may investigate the Corporation's affairs and accounts so far as may be necessary for assisting them towards a determination of a fair rate of royalty and the officers of the Corporation shall give them full access to all accounts and papers necessary for that purpose and shall afford them full information and assistance;
(d) any information obtained from the Corporation under this clause shall be used only for the purposes of the review or arbitration and shall be treated as confidential;
(e) where a rate of royalty has been determined as provided by this clause whether by agreement or arbitration that rate shall come into force on the first day of January after the determination and shall continue in force for not less than five years after that first day of January unless the Commission and the Corporation otherwise agree;
(f) the royalty determined as provided by this clause shall be not less than One shilling and ten pence a ton.
(1) The Corporation shall not construct any road track passage tramway chute or flume or building or erect any haulage or conversion unit within the Forest Area without the consent of the Commission or a forest officer previously obtained.
(2) The Corporation shall not commence the construction of any road track passage tramway chute or flume within the Forest Area until the plan of route and construction specifications thereof have been approved by the Commission or a forest officer nor shall it depart from any such plan or specifications without the like approval first obtained.
(1) Any road or track within the Forest Area
constructed by the Corporation shall be maintained by it to the satisfaction
of the Commission until such time as the Corporation informs the Commission in
writing that it no longer requires such road or track whereupon the
Corporation shall cease to have any right over or obligation to maintain such
road or track.
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(2) The Corporation shall not be responsible for the maintenance of any road or track within the Forest Area constructed by the Commission but it shall be responsible for and shall on demand by the Commission or a forest officer make good any damage (normal wear and tear excepted) to any such road or track caused by any vehicle operated by or on behalf of the Corporation or its contractors.
(1) The Corporation shall permit the passage over any road or track within the Forest Area constructed by it of vehicles used by any person to transport forest produce which the Commission has authorized that person to obtain and any person permitted by the Corporation pursuant to this sub-clause to use any such road or track shall do so at his own risk.
(2) The Corporation shall be entitled to make such charge or to be otherwise recompensed for the use by such person of any such road or track as the Commission may approve.
(3) The Corporation shall permit without charge the passage over any such road or track of any vehicle used by any forest officer or any employé or contractor of the Commission.
(4) The Commission shall having regard to the matters mentioned in clause 5 hereof do all in its power to ensure that the operations of the Corporation in the Forest Area are not unduly hampered by reason of the provisions of sub-clause (1) of this clause.
Any cartage unit used by the Corporation or its contractors in the Forest Area for the transport of pulpwood shall be—
(a) of a type and capacity approved by the Commission or a forest officer; and
(b) maintained in a condition
satisfactory to the Commission or a forest officer.
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(1) The Corporation shall throughout the currency of this agreement provide at its works at Eildon and maintain in accurate working order a weighbridge of a type approved by the Commission.
(2) At all times while the said weighbridge is in accurate working order the number of tons of pulpwood upon which royalty is payable under this agreement shall be determined by weighing the pulpwood on the said weighbridge.
(3) At all times while the said weighbridge is not in accurate working order the number of tons of pulpwood upon which royalty is payable under this agreement shall be determined in such manner as may be agreed upon between the Commission and the Corporation or failing agreement in such manner as the Commission may direct.
(4) The Corporation shall at all times during the currency of this agreement allow any person authorized by the Commission in writing either generally or in any particular case to enter any building or land of the Corporation at Eildon—
(a) to supervise the weighing of pulpwood on the said weighbridge;
(b) to examine and test the condition working order and accuracy of the said weighbridge; and
(c) to ascertain whether the provisions of this agreement and the Act and regulations made thereunder are being observed by the Corporation.
(1) The Corporation shall keep books records maps and plans recording the operations of the Corporation in connexion with the industry and showing in respect of each year particulars of—
(a) the quantity of pulpwood obtained by it from the respective areas within the Forest Area from which it obtains pulpwood in that year;
(b) the quantities of pulpwood obtained from—
(i) State forest other than the Forest Area; and
(ii) any source other than State forest;
(c) the quantities of pulpwood obtained from—
(i) Eucalyptus regnans and Eucalyptus delegatensis; and
(ii) mixed species;
(d) the quantities of pulpwood obtained as—
(i) mill waste;
and
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(ii) all other types;
(e) such other particulars of a similar nature as may be prescribed by regulation under the Act.
(2) The Corporation shall make such books records maps and plans available for inspection at all reasonable times by the Commission or an officer appointed by it for that purpose.
(3) The Corporation shall furnish to the Commission returns in respect of the matters mentioned in sub-clause (1) of this clause in such form and at such times as are prescribed from time to time by regulation under the Act.
(4) The Commission or any person appointed by it shall be entitled to require from the officers of the Corporation such information and explanations as are necessary for the purpose of testing and verifying the completeness and accuracy of such records and returns. The Commission and its officers shall keep strictly confidential any information obtained under this sub-clause.
To facilitate the forest operations of the Commission—
(a) the Corporation shall inform the Commission in writing from time to time of the names of the foremen contractors and other persons who are in charge of or are directing the obtaining of pulpwood in the Forest Area for the Corporation;
(b) the Corporation shall supply to each such person for production when required to a forest officer evidence in a form satisfactory to the Commission that he is employed in the obtaining of pulpwood for the Corporation and the Corporation shall forthwith inform the Commission in writing whenever any such person ceases to be so employed;
(c) the Corporation shall include in
every agreement by it with a contractor for the obtaining of pulpwood from the
Forest Area a provision that the contractor will not do or suffer to be done
anything which would constitute a breach of the regulations under the Act and
the Forests Act 1928 .
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Division C—Suspension of Obligations and Conditions
If any of the forests in the Forest Area are damaged or destroyed by fire disease or other cause to such an extent that it is impracticable for the Commission to comply with the provisions of clause 14 hereof or if by reason of anything beyond the control of the Commission it is prevented from complying with those provisions then so long as that state of affairs continues—
(a) the Corporation shall have no claim against the Commission for the non-fulfilment of its obligations under clause 14 hereof so far as non-fulfilment is due to any such cause;
(b) the Corporation's obligations under this Agreement shall be suspended.
If—
(a) the Corporation's mills or any works used in the production of Masonite or the means of transport of pulpwood are damaged or destroyed by fire or other calamity to a sufficient extent to prevent the carrying on of production at a rate of not less than 2000 tons a month of Masonite from pulpwood obtained under this Agreement;
(b) by reason of anything beyond the control of the Corporation it is prevented from establishing the industry or obtaining pulpwood or carrying on production at a rate of not less than 2000 tons a month of Masonite from pulpwood obtained under this Agreement; or
(c) by reason of any change in the
economics of the industry the carrying on of the industry becomes commercially
impracticable or the continued performance by the Corporation of its
obligations under this Agreement would affect it unfairly—
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then in any of those events—
(i) the Corporation may apply to the Commission for the suspension or a reasonable modification of the extent or operation of any obligation binding on the Corporation under this Agreement or for an extension of time for the performance or observance thereof;
(ii) the Commission upon any such application by the Corporation may grant a suspension of all or any of the obligations binding upon the Corporation or a reasonable modification of their extent or operation or an extension of time for their performance or observance;
(iii) if the Corporation is dissatisfied with the decision of the Commission upon any such application or if the Commission within two months after application by the Corporation does not inform the Corporation of its decision thereon the matter shall if the Corporation so elects be determined as provided in clause 32 hereof.
Division D—Determination of Corporation's Rights
If the Corporation—
(a) enters into liquidation (other than a voluntary liquidation for the purpose of reconstruction and assignment of rights under this Agreement); or
(b) delays the commencement of commercial production beyond the period of three years commencing on the first day of January next after the date of commencement; or
(c) abandons or repudiates this Agreement;
the Commission may thereupon determine this Agreement but such determination
shall not affect the enforcement of any right obligation or liability
theretofore acquired accrued or incurred.
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Division E—Supplemental
Wherever in any clause of this Agreement it is provided that any matter shall be determined in accordance with this clause—
(a) that matter shall be referred to two arbitrators one to be appointed by the Corporation and one by the Commission;
(b) the provisions of the Arbitration Act 1928 (in particular the provision allowing arbitrators to appoint an umpire) shall apply to the reference as if it were a reference by consent under that Act;
(c) the arbitrators so appointed and their umpire shall have regard to all matters set out in the clause which provides for determination of the matter under this clause and shall decide according to what is fair and reasonable having regard to the terms of this Agreement and the circumstances existing at the time of the reference.
This Agreement may be determined at any time by the consent of the Commission and the Corporation and upon such terms as they may agree.
The Commission and the Corporation may from time to time amend this Agreement by such additions deletions and variations of matters of detail as may be necessary or desirable to facilitate the carrying on of the industry.
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IN WITNESS whereof the parties hereto have executed this Agreement the day and year first before written. | ||
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Signed sealed and delivered by the said GORDON STEWART McARTHUR in the presence of G. K. COCKBURN |
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The common seal of FORESTS COMMISSION was hereto affixed in the presence of— |
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A. O. LAWRENCE, | ||
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C. M. EWART, | ||
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The common seal of MASONITE CORPORATION (AUSTRALIA) PTY. LIMITED was hereto affixed by authority of the Directors in the presence of— |
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E. S. WOLFENDEN, Director. | | |
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W. J. SMITH, Director. | | |
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Countersigned— | | |
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J. N. WALSH, Secretary. | | |
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