Victorian Current Acts Victorian Current ActsSchedule A
Agreement.
THIS AGREEMENT is made the tenth day of May One thousand nine hundred and thirty-seven BETWEEN The Honorable ALBERT ELI LIND in his capacity as Commissioner of Crown Lands and Survey of the State of Victoria for the time being (hereinafter referred to as "the Minister") of the first part THE MELBOURNE HARBOR TRUST COMMISSIONERS incorporated under the provisions of the Melbourne Harbor Trust Acts of the said State (hereinafter referred to as "the Commissioners" which expression shall include the body corporate or persons for the time being charged with the duties now performed by The Melbourne Harbor Trust Commissioners) of the second part and COMMONWEALTH AIRCRAFT CORPORATION PROPRIETARY LIMITED a Company incorporated under the Companies Act of the said State and having its registered office at 422 Little Collins Street Melbourne in the said State (hereinafter referred to as "the Company" which expression where the context admits or requires shall be deemed to extend to and include its assigns and transferees) of the third part WHEREAS representations have been made to the Minister by the Company of its intention to construct erect and establish a factory in Victoria for the manufacture of aircraft AND WHEREAS the Company is desirous of obtaining a suitable site in the said State for the said factory AND WHEREAS subject to the provision of a satisfactory landing and testing ground for aircraft thereto adjoining the land described in the thirteenth Schedule hereto being the land also described in the third fourth eighth and eleventh Schedules hereto is deemed by the Company to be a suitable site for the said factory AND WHEREAS the land described in the seventh and eleventh Schedules hereto is vested in His Majesty as part of a street or road known as Lorimer Street AND WHEREAS the land described in the first Schedule hereto (including the land described in the third eighth ninth and twelfth Schedules hereto) and the land described in the tenth Schedule hereto is vested in the Commissioners upon trust for the purposes of the Melbourne Harbor Trust Acts AND WHEREAS the land described in the second Schedule hereto is vested in the Commonwealth of Australia for an estate in fee simple AND WHEREAS the land described in the fourth fifth and sixth Schedules hereto being part of the land described in the said second Schedule is now being acquired by the Company NOW THESE PRESENTS WITNESS that subject to the necessary authority of the Parliament of Victoria being obtained it is hereby agreed by and between the parties hereto as follows:—
1. The portion of the said street or road known as Lorimer Street being the land described in the said seventh and eleventh Schedules shall be closed and the land described in the said seventh Schedule shall be vested in the Commissioners upon trust for the purpose of the Melbourne Harbor Trust Acts
2. The land described in the said third eighth and twelfth Schedules being part of the land described in the said first Schedule and the land described in the said tenth Schedule shall be divested from the Commissioners and vested in His Majesty freed from the trusts hereinbefore referred to
3. The land described in the said third eighth and eleventh Schedules shall be sold to and purchased by the Company for an estate in fee simple subject only to such rights and conditions as are hereinafter referred to
4. As a consideration for the said sale and purchase—
( a ) The Company shall pay to the Minister the sum of Nine thousand five hundred and twenty-five pounds of which One thousand one hundred and ninety pounds twelve shillings and six pence shall be paid on or before the execution of this Agreement as and by way of deposit and the balance of such sum namely Eight thousand three hundred and thirty-four pounds seven shillings and six pence shall be paid within one month after the date on which an Act passed by the Parliament of Victoria (hereinafter called "the said Act") ratifying and giving effect to this Agreement comes into operation
( b ) The Company shall within one month after the said Act comes into operation transfer and surrender to His Majesty free from all encumbrances the land described in the said fifth Schedule to the intent that the same together with the land described in the said tenth and twelfth Schedules shall be proclaimed a street or road as hereinafter provided
( c ) The Company shall within one month after the said Act comes into operation transfer and surrender to His Majesty free from all encumbrances the land described in the said sixth Schedule hereto to the intent that the same shall be vested in the Commissioners upon trust for the purposes of the Melbourne Harbor Trust Acts
5. Upon payment by the Company of the balance of the purchase money as aforesaid and of all proper Survey Crown Grant and Assurance Fund Fees and upon registration of the transfer and surrender to His Majesty of the land described in the said fifth and sixth Schedules as aforesaid and also a transfer and surrender to His Majesty free from encumbrances of the land described in the said fourth Schedule hereto—
( a ) The land described in the said thirteenth Schedule being the said land hereby agreed to be sold and the land described in the said fourth Schedule shall be granted by the Governor in Council in the name and on behalf of His Majesty to the Company for an estate in fee simple and such grant shall be made subject to the provisions of Sections 167, 294 and 295 of the Land Act 1928 and of Section 4 of the Mines (Petroleum) Act 1935 and subject to the conditions set out in Clauses 8, 9, 10, 11, 12, 14 and 15 of this Agreement and the provisions of Section 168 of the Land Act 1928 shall apply to such grant as though the said land had been alienated under the provisions of Part I. of the said Act
( b ) The land described in the said fifth tenth and twelfth Schedules shall be proclaimed by the Governor in Council as a street or road forming part of Lorimer Street aforesaid in substitution for the land described in the said seventh and eleventh Schedules to the intent that the land comprised in the said Crown Grant shall be bounded on the north side thereof by the said street or road and have access along Lorimer Street to the City of Melbourne
6. If within one month after the date upon which the said Act comes into operation the Company fails to pay the balance of the said purchase money or to transfer or surrender to His Majesty the said land described in the said fifth and sixth Schedules the Minister may by notice in writing to the Company forthwith determine this Agreement and in such event the deposit of One thousand one hundred and ninety pounds twelve shillings and six pence agreed to be paid by the Company shall be absolutely forfeited to the Minister but in the event of the necessary authority of the Parliament of the said State to give effect to this Agreement not having been obtained within nine months after the date of this Agreement or within such further time as may be agreed upon between the parties hereto then this Agreement shall (save as to the provisions of Clause 13 hereof) thereupon be deemed to be void and of no effect and the Minister shall thereupon repay the said deposit without any interest thereon to the Company
7. The Company may go into possession of the land hereby agreed to be sold on or after the date of the execution of these presents and from such date and so long as this Agreement remains in force and the Company's rights hereunder subsist and whilst the Company observes all of its obligations hereunder the Minister for his part and the Commissioners for its part will give the Company peaceable and quiet possession of the said land
8. The Company shall within one month after the date of this Agreement commence and proceed with the erection of the buildings plant equipment and other works necessary for and incidental to the construction organization and establishment on the land described in the said thirteenth Schedule of the said factory and shall within a period of two years after the said date expend on the said buildings plant equipment and other works a sum of not less than Two hundred and fifty thousand pounds (of which sum not less than One hundred thousand pounds shall be expended by the Company within the first twelve months of such period) PROVIDED HOWEVER that any delay or disability in the carrying out of this Agreement arising directly from the Act of God war restraints of princes strikes or lock-outs of workmen or other industrial disturbances unavoidable accident or any circumstances beyond its control other than the want of funds shall not entitle any party hereto to damages or to cancellation of this Agreement but this Agreement shall to the extent of such delay or disability be deemed to be suspended and shall forthwith come into full force and effect when such delay or disability shall have ceased
9. The Company shall during such period of two years and any extension of such period pursuant to the last preceding clause hereof construct and erect all buildings and erections necessary for the said factory in accordance only with such plans and specifications and designs as shall have been approved by the Minister or his agent authorized in writing in that behalf
10. Upon the written request of the Minister the Company shall from time to time during the progress of the erection of the buildings plant equipment and other works referred to in Clause 8 hereof furnish him with statements certified by the Secretary of the Company showing in detail the particulars and value of the work carried out in connexion therewith during any period or periods specified by the Minister and the particulars and value of the plant materials and machinery acquired or purchased by the Company for the purposes of the said works and shall within the aforesaid period of two years and any extension of such period pursuant to Clause 8 hereof permit any officer authorized by the Minister in writing to enter into and upon the land described in the said thirteenth Schedule or any part or parts thereof or any place where the said plant materials and machinery or any of them for the time being are to inspect and examine the same and to inspect and examine the said buildings plant equipment and other works
11. In the selection of plant materials or machinery to be purchased hired or otherwise acquired for the construction and establishment of the said factory preference shall be given so far as it is practicable so to do first to plant materials and machinery produced or manufactured in Victoria secondly to plant materials and machinery produced or manufactured elsewhere in the Commonwealth of Australia and thirdly to plant materials and machinery produced or manufactured elsewhere in the British Empire and any failure so to give preference shall be deemed to be a breach of this Agreement on the part of the Company
12. Except with the permission of the Minister first had and obtained the Company shall not excavate or remove or cause permit or suffer to be excavated or removed any sand on or from the land described in the said thirteenth Schedule PROVIDED NEVERTHELESS that the Company shall be entitled to dig excavate and use on the said land such sand as may be required by it for the purposes of or incidental to the construction erection and establishment of the said factory
13. If this Agreement shall be determined or become void in accordance with the provisions of Clause 6 hereof—
( a ) The Company shall on receipt by it of a notice from the Minister requiring it so to do vacate and deliver up possession of the land hereby agreed to be sold in the manner and within the time hereinafter stated that is to say—
(i) In the case of the land described in the said eleventh Schedule the Company shall vacate such land and deliver up possession thereof to the Minister within ninety days of the receipt by it of such notice from the Minister
(ii) In the case of the land described in the said third and eighth Schedules the Company shall vacate such land and deliver up possession thereof to the Commissioners within ninety days of the receipt by it of such notice from the Minister
( b ) The Company shall have the right upon receipt of such notice as aforesaid to remove any buildings or improvements which may have been erected or effected on the land hereby agreed to be sold or any part thereof by it or under its direction
( c ) The Minister may if he so elects by writing under his hand require that before the land hereby agreed to be sold or any part thereof is so vacated by the Company as provided in paragraph ( a ) of this clause the Company shall at its own expense remove from such land or such part or parts thereof as may be directed by the Minister all buildings and improvements which may have been erected or effected thereon by it or under its direction and shall cause all excavations made thereon by it or under its direction to be filled in and shall generally so far as it is possible so to do cause the said land or part or parts thereof to be restored to the condition in which it was at the time when the Company first entered into possession thereof and the Company shall carry out such direction accordingly and
( d ) The Company shall not be entitled to make against His Majesty the Minister or the Commissioners or any servant or Officer of His Majesty the Minister or the Commissioners any claim of any nature whatever for any loss or damage suffered or sustained by it by reason of arising out of or incidental to its vacating and delivering up possession of the land hereby agreed to be sold in the manner hereinbefore provided
( e ) In the event of the Company failing to vacate the land hereby agreed to be sold in accordance with the requirements of any notice given to it under the provisions of paragraph ( a ) of this clause the Minister as to the land described in the said eleventh Schedule and the Commissioners as to the land described in the said third and eighth Schedules shall have the right (without prejudice to any rights which he or it may have against the Company for any breach of this Agreement) by his or its agents (as the case may be) to re-enter on such land or any part thereof in the name of the whole respectively and without payment of any compensation to eject therefrom the Company or its transferees or any person or persons or any corporate or unincorporate body claiming through or under it or them
14. During the period of fifteen years next following the date on which the said Act comes into operation the Company shall not without the consent of the Minister sell lease or otherwise part with the possession of the land hereby agreed to be sold or any part thereof PROVIDED HOWEVER that the Minister shall not unreasonably withhold his consent to a proposed sale of the said land or any part thereof or to a proposed lease of such land or any part thereof if such sale is to be made to or such lease is to be granted to in the case of an individual a respectable financial and solvent person or in the case of a corporation a financial and solvent corporation and who or which in either case is in the Minister's opinion able and willing to continue during so much of the period of fifteen years aforesaid as may not then have expired the manufacture of aircraft upon the said land
15. In the event of failure on the part of the Company to carry out any or all of the terms and conditions contained in Clauses 8, 9, 10, 11, 12 and 14 of this Agreement the Crown shall have the right by itself or its agents to re-enter on the whole or any part of the land hereby agreed to be sold and without payment of any compensation to eject therefrom the Company or its transferees or any person or persons or any corporate or unincorporate body claiming through or under it or them PROVIDED HOWEVER that if the right of re-entry by this clause granted shall not have been exercised within a period of fifteen years and three months from the date on which the said Act comes into operation the Company shall be deemed to have complied with all of the terms and conditions contained in such clauses and shall thereafter hold the land described in the said thirteenth Schedule freed from such conditions
16. The purchase price of the land hereby agreed to be sold shall not be taken by any of the parties hereto or by any municipal or Government authority as evidence of the unimproved value of the said land or any part thereof for rating or taxation purposes
17. (a) The Minister shall within twelve months of the date of execution of these presents cause the land described in the said seventh and ninth Schedules by levelling and grading to be put into a condition suitable for the purposes of a testing and landing ground for aircraft
( b ) Subject to its observing all the conditions hereinafter mentioned and on its part to be observed and subject to the provisions of paragraph ( l ) hereunder the Company shall during the period hereinafter mentioned have full right and liberty (in common with any other or others to whom similar rights may be granted) to enter upon the land described in the said seventh and ninth Schedules and to use the said land for the purposes of a testing field and landing ground for aircraft
( c ) Such rights and liberties shall commence on the day that the Minister receives notification in writing from the Company that it desires to commence using the land described in the said seventh and ninth Schedules for the purposes aforesaid and shall cease at the time and in the manner hereinafter mentioned
( d ) If at any time the Company shall cease to carry on the business of manufacturing aircraft upon the land described in the said thirteenth Schedule the Minister may serve on the Company notice in writing of his intention to determine the rights and liberties hereby granted and at the expiration of thirty days from the service on the Company of such notice the said rights and liberties shall be determined.
( e ) The Company shall pay to the Minister for the said rights and liberties so long as they subsist the following sums—
(i) the annual sum of Five pounds in each and every year for the first ten years or less period the first of which annual sums shall be paid within one month of the receipt by it of a notice in writing from the Minister demanding payment thereof
(ii) for every year after such first ten years as aforesaid such annual sum on such date or dates and in such manner as may from year to year be determined by the Minister
( f ) The Company may at any time by writing under its seal surrender the rights and liberties by this clause granted
( g ) If at any time the Company's rights and liberties under this clause are determined or surrendered the Company shall not be entitled to any refund or any annual sum paid by it in accordance with the foregoing provisions of this clause
( h ) If the Minister does not within the period of two years mentioned in Clause 8 hereof or any extension of such period pursuant to the provisions of such clause receive from the Company any such notification of the kind referred to in paragraph ( c ) hereof then the Company shall be deemed to have waived all its rights under this clause
( i ) Whilst the rights and liberties herein referred to subsist the Company may erect or make on the land described in the said seventh and ninth Schedules any wind indicators or ground markings which in the opinion of the Company are reasonably necessary in connexion with the landing and departure of aircraft on and from the said land and in the event of the determination of the rights and liberties by this clause granted to it the Company may within one month of such determination remove and carry away any such wind indicators and ground markings so erected or made by it on the said land
( j ) Notwithstanding the rights and liberties hereby granted neither the Minister nor the Commissioners shall be under any obligation in regard to the maintenance of the land described in the said seventh and ninth Schedules hereto and after the same has by levelling and grading been put into a condition suitable for the purposes of a testing and landing ground for aircraft as aforesaid the Company shall not at any time make against His Majesty the Minister or the Commissioners any claim for any loss or damage suffered or sustained by the Company by reason of any defect which may subsequently develop therein
( k ) The Company shall after the commencement of the rights and liberties hereby granted save harmless and keep indemnified His Majesty the Minister and the Commissioners from all damages and costs in respect of all accidents damages or injuries whatsoever which may be sustained or suffered by any person whomsoever or body whatsoever arising out of the exercise by the Company of such rights and liberties
( l ) Notwithstanding anything hereinbefore contained the Commissioners its transferees and its and their licensees shall at all times have full and free right and liberty to enter upon the land described in the said seventh and ninth Schedules and lay and place therein any water pipes sewers drains conduit pipes or electrical cables but in the execution of any such works as little interference as may be shall be caused to the exercise by the Company of the rights and liberties by this cause granted
( m ) If the Company makes default in the due payment of any annual sum hereinbefore mentioned or commits any other breach of the above conditions then the Minister may at any time thereafter give to the Company notice in writing requiring it to remedy such breach and if at the expiration of thirty days from the service of such notice the Company has been unable or has failed or neglected to remedy such breach the Minister may upon giving notice in writing in that behalf to the Company forthwith determine the rights and liberties by this clause granted
18. The Minister shall cause to be introduced into Parliament as soon as practicable a Bill to give effect to this Agreement and such Bill shall contain ( inter alia ) provisions to enable the following matters to be done
( a ) To enable the Governor in Council to make regulations concerning the following matters or any of them—
(i) For the care protection and management of the land described in the said seventh and ninth Schedules
(ii) For the preservation of good order and decency thereon
(iii) Empowering such persons as he may think fit to remove and eject from the said land unauthorized persons who may be found thereon
(iv) Prescribing penalties for any contravention of or any failure to comply with any of the provisions of such regulations when made
19. Any notice communication opinion agreement approval or other matter or thing to be given made expressed or done by the Minister under these presents shall be deemed to have been duly given made expressed or done if given made expressed or done in writing signed by the Minister and if addressed to the Company and delivered or posted by prepaid post to the address of its registered office and if so posted the Company shall be deemed to have received the same at the time when in the ordinary course of post it would be delivered at the said address
20. Should any question or dispute arise between the parties hereto or any two of them concerning the meaning of this Agreement or with respect to any liability obligation right matter or thing arising under or in relation to these presents the same shall be referred to a single arbitrator in case the parties to the dispute can agree upon one otherwise to two or three arbitrators (as the case may require) one to be appointed by each party to the difference and in either case in accordance with and subject to the provisions of the Arbitration Acts 1928 or any statutory modification or re-enactment thereof for the time being in force
21. The land described in the Schedules hereto is delineated and colored as hereunder set out on the plan of which three copies bearing a memorandum that they are copies of the plan referred to in this Agreement have been signed by the Minister the Chairman of the Commissioners and the Secretary of the Company that is to say—
the land described in the first Schedule is delineated and shown within a red border
the land described in the second Schedule is delineated and shown within a dark blue border
the land described in the third Schedule is colored light green
the land described in the fourth Schedule is colored pink
the land described in the fifth Schedule is colored blue
the land described in the sixth Schedule is colored dark green
the land described in the seventh Schedule is delineated and shown by cross hatched brown lines
the land described in the eighth Schedule is colored purple
the land described in the ninth Schedule is colored yellow
the land described in the tenth Schedule is colored red
the land described in the eleventh Schedule is colored brown
the land described in the twelfth Schedule is delineated and shown by hatched blue lines
the land described in the thirteenth Schedule is delineated and shown within a green border
IN WITNESS WHEREOF the parties have executed these presents the day and year first above written
THE SCHEDULES ABOVE REFERRED TO.