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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
James Hardie Former Subsidiaries
(Winding up and Administration)
Amendment (Trust Funds) Bill 2006
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of James Hardie Former Subsidiaries
(Winding up and Administration) Act 2005 No 105 2
4 Amendment of James Hardie (Civil Liability) Act 2005
No 106 2
5 Repeal of Act 2
Schedule 1 Amendment of James Hardie Former Subsidiaries
(Winding up and Administration) Act 2005 3
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2006
New South Wales
James Hardie Former Subsidiaries
(Winding up and Administration)
Amendment (Trust Funds) Bill 2006
Act No , 2006
An Act to amend the James Hardie Former Subsidiaries (Winding up and
Administration) Act 2005 to give recognition to a discretionary trust fund to be
administered by the SPF trustee that is to be a source of funding in addition to the
SPF; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
James Hardie Former Subsidiaries (Winding up and Administration)
Clause 1 Amendment (Trust Funds) Bill 2006
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the James Hardie Former Subsidiaries (Winding up and
Administration) Amendment (Trust Funds) Act 2006.
2 Commencement
(1) This Act commences on a day or days to be appointed by proclamation,
except as provided by this section.
(2) The following provisions of this Act commence on the date of assent to
this Act:
(a) sections 1, 4 and 5 and this section,
(b) Schedule 1 [1]-[10] and [23]-[27] (and section 3 in its
application to those items).
3 Amendment of James Hardie Former Subsidiaries (Winding up and
Administration) Act 2005 No 105
The James Hardie Former Subsidiaries (Winding up and
Administration) Act 2005 is amended as set out in Schedule 1.
4 Amendment of James Hardie (Civil Liability) Act 2005 No 106
The James Hardie (Civil Liability) Act 2005 is amended by omitting
"personal legal representative" from paragraph (b) of the definition of
asbestos claim in section 21 (1) and by inserting instead "legal personal
representative".
5 Repeal of Act
(1) This Act is repealed on the day following the day on which all of the
provisions of this Act have commenced.
(2) The repeal of this Act does not, because of the operation of section 30
of the Interpretation Act 1987, affect any amendment made by this Act.
Page 2
James Hardie Former Subsidiaries (Winding up and Administration)
Amendment (Trust Funds) Bill 2006
Amendment of James Hardie Former Subsidiaries (Winding up and Schedule 1
Administration) Act 2005
Schedule 1 Amendment of James Hardie Former
Subsidiaries (Winding up and
Administration) Act 2005
(Section 3)
[1] Section 2 Commencement
Insert after section 2 (3) (and the note to that subsection):
(4) The provisions of Part 3 of Schedule 1 commence on the date of
assent to the James Hardie Former Subsidiaries (Winding up and
Administration) Amendment (Trust Funds) Act 2006.
[2] Section 4 Definitions
Insert in alphabetical order in section 4 (1):
assets means any legal or equitable estate or interest (whether
present or future, whether vested or contingent and whether
personal or assignable) in real or personal property of any
description (including money), and includes securities, choses in
action and documents.
compensation funds means the following:
(a) the SPF,
(b) the discretionary fund.
discretionary fund means any discretionary trust fund:
(a) established in accordance with the SPF trust deed and the
Final Funding Agreement with respect to any income
derived from assets that form part of the SPF, and
(b) in respect of which the SPF trustee is also the trustee.
SPF trust deed means the deed that established the SPF, as in
force from time to time.
[3] Section 4 (1), definition of "personal asbestos claim"
Omit "personal legal representative" from paragraph (b) of the definition.
Insert instead "legal personal representative".
[4] Section 4 (4A)
Insert after section 4 (4):
(4A) Unless the context or subject-matter indicates or requires
otherwise, a reference in this Act to the payment or discharge
(whether in whole or in part) by the SPF trustee of a payable
liability of a liable entity on the entity's behalf or for its benefit is
Page 3
James Hardie Former Subsidiaries (Winding up and Administration)
Amendment (Trust Funds) Bill 2006
Schedule 1 Amendment of James Hardie Former Subsidiaries (Winding up and
Administration) Act 2005
a reference to the payment or discharge of such a liability by the
SPF trustee in its capacity as the trustee of the SPF or the
discretionary fund or in both capacities (as the case may be).
[5] Section 8 SPF may be treated as charitable trust
Insert after section 8 (2):
(3) If the discretionary fund is for the time being authorised or
required under the Final Funding Agreement or the SPF trust
deed to receive and provide funding for the payment of, and to
pay, any of the payable liabilities of any liable entity instead of or
in addition to the SPF, any trust fund that was originally
established for the purposes referred to in subsection (1) (a):
(a) continues to be a valid charitable trust, and
(b) is taken to be administered by the SPF trustee for the
purposes for which the trust fund was originally
established,
even though the fund is not the only trust fund being used during
that time for the purpose referred to in subsection (1) (a) (i).
[6] Section 12 Registered offices to be within the State
Insert at the end of section 12 (2) (b):
, and
(c) the provisions of paragraphs (a) and (b) have effect despite
any other provisions of the constitution of the company.
[7] Section 13 Member Register to be within the State
Insert at the end of section 13 (2) (b):
, and
(c) the provisions of paragraphs (a) and (b) have effect despite
any other provisions of the constitution of the company.
[8] Section 15 Certain transfers of shares in liable entities prohibited
Omit section 15 (3). Insert instead:
(3) It is taken to be a provision of the constitution of each liable entity
that:
(a) shares in the entity cannot be transferred without the
written approval of the Minister, and
(b) the provisions of paragraph (a) have effect despite any
other provisions of the constitution of the entity.
Page 4
James Hardie Former Subsidiaries (Winding up and Administration)
Amendment (Trust Funds) Bill 2006
Amendment of James Hardie Former Subsidiaries (Winding up and Schedule 1
Administration) Act 2005
[9] Section 16 Orders requiring transfer of shares in liable entities
Insert at the end of section 16 (6) (b):
, and
(c) the provisions of paragraphs (a) and (b) have effect despite
any other provisions of the constitution of the company.
[10] Section 18 When Part expires
Omit "1 October 2006" from section 18 (b).
Insert instead "1 October 2007".
[11] Section 24 Directions from SPF trustee
Omit "provided from the SPF" from section 24 (3).
Insert instead "provided from any of the compensation funds".
[12] Section 32 Kinds of claims that are payable
Omit "(whether by the entity itself or by the SPF trustee for the entity)" from
section 32 (1), (2) and (3) wherever occurring.
Insert instead "(whether by the entity itself or by the SPF trustee on the entity's
behalf or for its benefit)".
[13] Section 33 Determination of whether sufficient funds
Omit "the SPF" from section 33 (1).
Insert instead "any of the compensation funds".
[14] Section 33 (3)
Omit "the SPF by the SPF trustee".
Insert instead "any of the compensation funds by the SPF trustee".
[15] Section 34 Payments during period of sufficient funds
Omit "(or the SPF trustee on its behalf)".
Insert instead "(or the SPF trustee on its behalf or for its benefit)".
[16] Section 35 SPF trustee may apply to Supreme Court if insufficient funds
Omit "SPF" from the heading to section 35 (9).
Insert instead "SPF trustee".
Page 5
James Hardie Former Subsidiaries (Winding up and Administration)
Amendment (Trust Funds) Bill 2006
Schedule 1 Amendment of James Hardie Former Subsidiaries (Winding up and
Administration) Act 2005
[17] Section 36 Payments made by SPF trustee directly to claimants
Omit "from the SPF" from section 36 (1).
Insert instead "from any of the compensation funds".
[18] Section 36 (1)
Insert "that is made on the entity's behalf or for its benefit" after "the
claimant".
[19] Section 36 (2) (b)
Insert "except where the SPF trustee makes the payment from the
discretionary fund--" before "to confer".
[20] Section 36 (2) (c)
Insert "except where the SPF trustee makes the payment from the
discretionary fund--" before "to confer".
[21] Section 36 (3A)
Insert after section 36 (3):
(3A) Without limiting subsection (3), the SPF trustee may determine
whether to make a requirement under that subsection after the
end of the financial year (within the meaning of the Final Funding
Agreement) in which the right to indemnity arose or at such other
times as the SPF trustee may determine.
[22] Section 37 Winding up accounts
Insert "(within the meaning of the Final Funding Agreement)" after "financial
year" in section 37 (1).
[23] Section 54 Enforcement of provisions of this Part
Omit section 54 (4). Insert instead:
(4) Without limiting subsection (3), on any such application the
Supreme Court may:
(a) make an order setting aside a rationing direction made
under section 35 if it is satisfied that the direction should
not have been given or is no longer required, or
(b) make an order setting aside a transaction, or requiring the
repayment of money or the return of any other asset, (or
both), if satisfied that the transaction or the disposition of
the money or other asset (as the case may be) was in
contravention of a provision of this Part.
Page 6
James Hardie Former Subsidiaries (Winding up and Administration)
Amendment (Trust Funds) Bill 2006
Amendment of James Hardie Former Subsidiaries (Winding up and Schedule 1
Administration) Act 2005
[24] Section 63 Exemption from State tax
Insert after paragraph (c) of the definition of exempt matter in section 63 (1):
(c1) the establishment of the discretionary fund,
[25] Section 64 Tabling of copies of Final Funding Agreement and Related
Agreements
Insert after section 64 (2):
(2A) If a House of Parliament is not sitting when the Minister seeks to
table the copies of the disclosed Agreements, the Minister may
present the copies to the Clerk of the House concerned.
[26] Schedule 1 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
James Hardie Former Subsidiaries (Winding up and
Administration) Amendment (Trust Funds) Act 2006
[27] Schedule 1, Part 3
Insert after Part 2:
Part 3 Provisions consequent on enactment of
James Hardie Former Subsidiaries
(Winding up and Administration)
Amendment (Trust Funds) Act 2006
Division 1 Interim funding arrangements
9 Rights and liabilities relating to Interim Funding Deed not affected
(1) For the avoidance of doubt, it is declared that nothing in the NSW
administration legislation operates to abrogate, limit or otherwise
affect any right or liability of any person arising under or in
relation to the Interim Funding Deed.
(2) Accordingly, any provision of the NSW administration
legislation that would (but for subclause (1)) have abrogated,
limited or otherwise affected any such right or liability is to be
read as if it did not have that effect.
(3) The provisions of this clause are taken to have had effect on and
from the day on which the Interim Funding Deed was entered into
by the parties to the Deed.
Page 7
James Hardie Former Subsidiaries (Winding up and Administration)
Amendment (Trust Funds) Bill 2006
Schedule 1 Amendment of James Hardie Former Subsidiaries (Winding up and
Administration) Act 2005
(4) In this clause:
Interim Funding Deed means the deed entitled "Interim Funding
Deed" that was entered into by the following parties on
16 November 2006:
(a) James Hardie 117 Pty Limited (ACN 116 110 948),
(b) Amaca,
(c) the Compensation Foundation,
as in force from time to time.
NSW administration legislation means any of the following:
(a) the James Hardie Former Subsidiaries (Special
Provisions) Act 2005,
(b) this Act,
(c) any instrument made under an Act referred to in paragraph
(a) or (b).
Division 2 Winding up and termination of MRCF trust
fund
10 Definitions
In this Division:
asbestos medical research provider means a person or body that
conducts, or that provides funding for the conduct of, medical
research into asbestos-related diseases.
hold a share includes hold a share on trust or for the benefit of
another person.
modification includes addition, exception, omission or
substitution.
MRCF trust deed means the deed executed by James Hardie
Industries Limited (ACN 000 009 263) in February 2001 that:
(a) constituted a charitable private trust fund for the purposes
of medical research into asbestos-related diseases, and
(b) appointed the Compensation Foundation as the trustee of
the fund,
as in force from time to time.
MRCF trust fund means the trust fund established by the MRCF
trust deed.
MRCF trustee means the trustee of the MRCF trust fund from
time to time.
Page 8
James Hardie Former Subsidiaries (Winding up and Administration)
Amendment (Trust Funds) Bill 2006
Amendment of James Hardie Former Subsidiaries (Winding up and Schedule 1
Administration) Act 2005
trust assets means any assets held by the MRCF trustee for the
purposes of the MRCF trust fund.
11 MRCF trustee to apply trust assets for certain purposes
The MRCF trustee must, as soon as is reasonably practicable
after the day on which it ceases to hold any shares in the liable
entities, take such steps as are necessary to apply any trust assets
as follows:
(a) first, in payment of any amounts that are payable to any
creditor of the MRCF trust fund,
(b) second, transfer (for no consideration) the balance of any
trust assets to one or more asbestos medical research
providers prescribed by the regulations in such proportions
as may be prescribed by the regulations.
Note. Section 16 enables the Minister to order the trustee (namely, the
Compensation Foundation) to transfer shares that it holds in a liable
entity to a person or persons specified in the order.
12 Termination of MRCF trust fund
(1) The MRCF trustee must, within the period of 7 days after taking
all of the steps referred to in clause 11, give the Minister a written
notice (a compliance notice) stating that the trustee has complied
with the provisions of clause 11.
(2) The Minister may, by order published in the Gazette, terminate
the MRCF trust fund if the Minister has been given a compliance
notice.
(3) The MRCF trust fund is terminated on the day specified in the
order (being a day that is not earlier than the day on which the
order is published in the Gazette) and, accordingly, the MRCF
trustee ceases to be the trustee of the MRCF trust fund on that
day.
13 Application to Minister for advice or direction
(1) The MRCF trustee may apply for advice or direction from the
Minister on any matter relating to the scope or exercise of the
trustee's functions under this Division.
(2) In determining any such application, the Minister may decide to:
(a) approve or disapprove of any act proposed to be done by
the MRCF trustee, or
(b) give such advice or direction as the Minister considers
appropriate.
Page 9
James Hardie Former Subsidiaries (Winding up and Administration)
Amendment (Trust Funds) Bill 2006
Schedule 1 Amendment of James Hardie Former Subsidiaries (Winding up and
Administration) Act 2005
(3) An advice or direction given by the Minister under this clause is
to be given by order in writing.
(4) Subject to clause 14, no proceedings lie, or civil or other liability
arises, against the MRCF trustee or the Minister for or on account
of any act, matter or thing done or omitted to be done by the
trustee in accordance with any approval, advice or direction
given under this clause.
14 Applications to Supreme Court for compliance orders
(1) The Minister may apply to the Supreme Court for an order
requiring the MRCF trustee to comply with the provisions of this
Division.
(2) On any such application, the Supreme Court may, if satisfied that
the MRCF trustee has refused or failed to comply with a
provision of this Division, make such order or orders as it thinks
fit to require the trustee to comply with the provision.
15 Effect of Division
(1) Any dealing by the MRCF trustee with the trust assets as required
by or under this Division is not to be regarded as a breach of trust
or otherwise as a civil wrong (whether for the purposes of any
legislation of the State or the general law).
(2) For the avoidance of doubt, any amounts drawn from the trust
assets that are paid, or any trust assets that are transferred, as
referred to in clause 11 are paid or transferred free of any
equitable estates, interests, rights or obligations that attach to the
assets by reason of the MRCF trust fund.
(3) The provisions of this Division have effect despite anything to
the contrary contained in the MRCF trust deed (in particular,
clause 8 of that deed).
16 Protection for exercise of functions under this Division
(1) The provisions of section 59 (other than subsection (5) (a)) are
taken to apply to and for the purposes of this Division as if:
(a) a reference in that section to a protected person were a
reference to the MRCF trustee or the Minister, and
(b) a reference in that section to a protected function were a
reference to a function conferred or imposed by or under
this clause, and
(c) a reference in that section to this Part (that is, Part 4 of this
Act) were a reference to this Division, and
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James Hardie Former Subsidiaries (Winding up and Administration)
Amendment (Trust Funds) Bill 2006
Amendment of James Hardie Former Subsidiaries (Winding up and Schedule 1
Administration) Act 2005
(d) the section provided that nothing in that section prevents
the MRCF trustee or the Minister (as the case may be)
from:
(i) making an application under clause 13 or 14, or
(ii) being given advice or direction under clause 13 or
granted relief by the Supreme Court under
clause 14, and
(e) any provision or provisions of that section specified by the
regulations had effect subject to such modifications as may
be prescribed by the regulations.
(2) Nothing in this clause limits the operation of section 59 in its
application to matters arising under or in relation to Part 4 of this
Act.
Division 3 Discretionary fund
17 Establishment of discretionary fund by amendment of SPF trust
deed
For the avoidance of doubt, it is declared that for the purposes of
the law of trusts of the State the discretionary fund may be
established by amendment of the SPF trust deed in accordance
with the provisions of that deed dealing with its amendment
without the need to do anything else (including terminate the SPF
and re-settle the assets that are the subject of the SPF into 2 new
trusts).
Page 11
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