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Deed of Settlement
Resumption of the Resumed Land
The Allens contact for this document is Bill McCredie This document is provided on a "without prejudice" basis
Allens Riverside Centre 123 Eagle Street Brisbane QLD 4000 Tel +61 7 3334 3000 Fax +61 7 3334 3444 www.allens.com.au
Allens, Australia 2013
Deed of Settlement
Contents
1 Definitions and Interpretation 1.1 Definitions 1.2 Interpretation Warranty by Applicants Settlement Terms 3.1 Payments 3.2 Settlement Amount 3.3 Method of Payment 3.4 No admission by the Council Discontinuance of the Proceeding Relocation or Demolition of Allan Dwelling 5.1 Election 5.2 Election to Relocate Allan Dwelling 5.3 Election to Demolish Allan Dwelling Council Not Liable Future Development on Balance Land Boundary Fencing Applicants Not Liable Release 9.110.1 Release by AllanApplicants 9.210.2 Release by the Council Covenant not to Sue 10.1 Covenant by Allan 10.2 Covenant by the Council Indemnity 11.1 IndemnityCovenant by the Applicants 11.2 IndemnityCovenant by the Council Indemnity 12.1 Indemnity by the Applicants 12.2 Indemnity by the Council Related Entities Acknowledgment and Representation Confidentiality 14.115.1 14.215.2 14.3 Confidentiality by the Council Entire Agreement Amendment Assignment Costs and Stamp Duty Counterparts Further Assurances
11.10.201329.10.2013
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Deed of Settlement
Goods and Services Tax Governing Law and Jurisdiction No Merger No Waiver Time of the Essence Notices Severability of Provisions
Schedule 1 Description of Resumed Land Schedule 2 Form 18 Notice of Withdrawal or Discontinuance Schedule 3 The Allan Dwelling Schedule 4 Public Road Reserve
11.10.201329.10.2013
page (ii)
Deed of Settlement
2013
Blodwen Patricia May Allan, Esther Ann Allan, Donna Rebecca Allan of [#], Brisbanec/- P&E Law, Suite 2, 37 Dalton Drive, Maroochydore in the State of Queensland (together, Applicants). Fraser Coast Regional Council (formerly Hervey Bay City Council) of c/- Allens, Level 31, Riverside Centre, 123 Eagle Street, Brisbane in the State of Queensland (Council).
Recitals A B C D Council resumed the Resumed Land on the Taking Date via the Taking of Land Notice. The Applicants were the owners of the Resumed Land immediately prior to the Taking Date. The Applicants made the Compensation Claim under the Act, which was referred to the Court on 25 October 2011. The Applicants and Council have agreed to settle the Proceeding on the terms set out in this Deed.
It is agreed as follows.
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1.1
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Deed of Settlement
Demolition Certification means written certification by an independent building inspector that the Allan Dwelling has been demolished in accordance with clause 5 herein. Demolition Date means [# - insert - period not exceeding twelve months from Deed Date]. Discontinuance Date means the date upon which the Form 18 Notice of Withdrawal or Discontinuance in Schedule 2 is filed at the Court by the Applicants. Election Date means 14 days from the Deed Date. Proceeding means Blodwen Patricia May Allan, Esther Ann Allan, Donna Rebecca Allan v Fraser Coast Regional Council (formerly Hervey Bay City Council) Land Court of Queensland Application No. AQL627-11. Public Road Reserve means the road marked "#145 Road" in the plan attached at Schedule 4. Related Body Corporate has the meaning given to related body corporate in the Corporations Act 2001 (Cth). Related Entity means, in relation to a party, any Related Body Corporate of the party and any past or present officer, employee or agent of the party or one of its Related Bodies Corporate (but does not include a party), and in the case of the Council includes Wide Bay Water Corporation. Relocation Confirmation Date means the date upon which Council receives all of the information referred to in clause 5(a) herein. Relocation Certification means written certification by an independent building inspector that the Allan Dwelling has been relocated on the Balance Land above RL34, in accordance with clause 5 herein. Relocation Date means [# - insert - period not exceeding twelve months from Deed Date].1 November 2014. Resumed Land means the land described in Schedule 1. RL34 means an elevation of RL 34.00 metres Australian Height Datum (AHD). Settlement Amount has the meaning set out in clause 3.1(a) herein. Settlement Date means the date 14 days from the receipt by Council of either: (i) (ii) the Relocation Certification; or the Demolition Certification;whichever is applicable.
Taking Date means 16 July 2004. Taking of Land Notice means the Taking of Land Notice (No 28) 2004 published in the Queensland Government Gazette on 16 July 2004 by which Council took the Resumed Land from the Applicants for water supply purposes.
1.2
Interpretation
(a) (b) (c) (d) Headings are for convenience only and do not affect interpretation. Mentioning anything after includes, including, for example, or similar expressions, does not limit what else might be included. Nothing in this Deed is to be interpreted against a party solely on the ground that the party put forward this Deed or a relevant part of it. The following rules apply unless the context requires otherwise: (i) The singular includes the plural, and the converse also applies.
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Deed of Settlement
If a word or phrase is defined, its other grammatical forms have a corresponding meaning. A reference to a clause is a reference to a clause of this Deed. A reference to writing includes any method of representing or reproducing words, figures, drawings or symbols in a visible and tangible form but excludes a communication by electronic mail. A reference to a party to this Deed or another agreement or document includes the party's successors, permitted substitutes and permitted assigns (and, where applicable, the party's legal personal representatives). A reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it.
(v)
(vi)
Warranty by Applicants
The Applicants warrant that the Resumed Land was not subject to any trust, obligation, mortgage, lease, agreement to lease, tenancy, charge, rate, contract, claim or other estate or interest whatsoever at the Taking Date except as stated at paragraph 4 of the Compensation Claim.
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3.1
Settlement Terms
Payments
Council will pay the following amounts to the Applicants: (a) (b) the amount of $161,087.00 (being the amount of $500,000 less the Advance) within 14 days of the Discontinuance Date (Settlement Amount); and subject to the relocation or demolition of the Allan Dwelling in accordance with clause 5,5 and the Applicants' compliance with the terms of this Deed, a further ex-gratia amount of $500,000 comprising: (i) (ii) $100,000, payable to the Applicants within 14 days of the Relocation Confirmation Date; and $400,000, payable on the Settlement Date.
3.2
Settlement Amount
For the avoidance of doubt, the parties agree that the Settlement Amount is in full and final settlement of all heads of compensation under the Act, including, without limitation, the costs of and incidental to the Proceeding.
3.3
Method of Payment
The payments referred to in clause 3.1 must be tendered by direct transfer of immediately available funds to the trust account of the solicitors acting for the Applicants.
3.4
Deed of Settlement
(b)
In order to facilitate the requirement in paragraph (a) above, the parties acknowledge and agree that, contemporaneously with execution of this Deed, they will execute a Form 18 Notice of Withdrawal or Discontinuance in the form attached to this Deed at Schedule 2. Each party will bear its own costs of and incidental to the Proceeding and this Deed.
(c)
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5.1
5.2
(ii)
(ii) theThe Applicants must relocate the dwellingAllan Dwelling to the proposed new location on any part of the Balance Land above RL34 by the Relocation Date. (b) Immediately upon the completion of the relocation of the Allan Dwelling, the Applicants must provide Council with a list of 3 (three) proposed independent and appropriately-qualified building inspectors to undertake the Relocation Certification (Relocation Inspector List). (c) Subject to (de) below, Council must, in its absolute discretion, and at its own cost, appoint one or more of the inspectors named in the Relocation Inspector List to undertake the Relocation Certification. (d) If Council considers that any or all of the inspectors identified in the Relocation Inspector List are not appropriately qualified, or not independent, then it may, in its absolute discretion, appoint a different inspector to undertake the Relocation Certification at its own cost, and without further notice to the Applicants. (e) The Applicants acknowledge and agree that they will allow any inspector appointed pursuant to this clause 5.25 reasonable access to the Balance Land in order to undertake the Relocation Certification.
(d)
(e)
(f)
5.3
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Deed of Settlement
(b)
Immediately upon the completion of the demolition of the Allan Dwelling, the Applicants must provide Council with a list of 3 (three) proposed independent and appropriatelyqualified inspectors to undertake the Demolition Certification (Demolition Inspector List). Subject to (d) below, Council must, in its absolute discretion, and at its own cost, appoint one or more of the inspectors named in the Demolition Inspector List to undertake the Demolition Certification. If Council considers that any or all of the inspectors identified in the Demolition Inspector List are not appropriately qualified, or not independent, then it may, in its absolute discretion, appoint a different inspector to undertake the Demolition Certification at its own cost, and without further notice to the Applicants. The Applicants acknowledge and agree that they will allow any inspector appointed pursuant to this clause 5.3 reasonable access to the Balance Land in order to undertake the Demolition Certification.
(c)
(d)
(e)
(c)
The Applicants will not bring or pursue, or procure that a third party brings or pursues, a Claim against Council in respect of any matter which is the subject of a release under clause 6(b). Each of the Applicants indemnify (and agree to keep indemnified) Council and its agents, employees, managers and contractors, from and against: (i) (ii) any loss or liability arising from or connected with a breach by any of the Applicants of clause 6(c); all losses, damages, liabilities, actions, suits, Claims, demands, costs and expenses in respect of or arising from loss, damage or injury from any cause whatsoever caused or contributed to by any act, omission, neglect, breach or default of the Applicants or their employees, contractors and agents.
(d)
Boundary Fencing
(a) The Applicants acknowledge and agree that they will allow Council, its Related Entities, agents and contractors access to the Balance Land as necessary for the purpose of Council constructing a boundary fencefences on the boundary line:
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Deed of Settlement
between the Balance Land and the Resumed Land; and along the boundary of the Public Road Reserve.
Council must provide the Applicants with 7 days6 weeks' prior written notice of its intention to access the Balance Land (as necessary) to commence work on the boundary fences and such written notice will include the following: (i) (ii) (iii) (iv) proposed traffic routes through the Balance Land for the purpose of constructing the boundary fences; name and contact details of personnel who will enter the Balance Land; name and contact details of Council's fencing contractor; and an estimate of the period during which the boundary fencing will be constructed.
(c)
Council acknowledges and agrees that work on the boundary fences: (i) (ii) (iii) will only occur between the hours of 6am and 4pm, Monday to Friday; will be undertaken as expeditiously as practicable; and will be at the sole cost of Council.
(d)
Once the boundary fences have been constructed: (i) (ii) the parties acknowledge and agree that they will be jointly responsible for the ongoing maintenance of the boundary fences; and the Applicants acknowledge and agree that they will notify Council in writing of any maintenance required to the boundary fences within 2 business days of becoming aware of such requirement.
(e)
The Applicants acknowledge and agree that they will take all reasonable steps to ensure that the boundary fences are not compromised or damaged in any way, including by stock grazing on the Balance Land. Council acknowledges and agrees that it will remediate any material damage, excluding fair wear and tear, to the Balance Land as a consequence of the construction of the boundary fences by Council pursuant to this clause 8.
(f)
(ii)
(c)
Council will not bring or pursue, or procure that a third party brings or pursues, a Claim against the Applicants in respect of any matter which is the subject of a release under clause (b). Council indemnifies (and agrees to keep indemnified) the Applicants from and against:
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(d)
Deed of Settlement
(i) (ii)
any loss or liability arising from or connected with a breach by Council of clause (c); all losses, damages, liabilities, actions, suits, Claims, demands, costs and expenses in respect of or arising from loss, damage or injury from any cause whatsoever caused or contributed to by any act, omission, neglect, breach or default of Council or their employees, contractors and agents.
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10.1
9 Release
9.1 Release by AllanApplicants
On and from the Deed Date, the Applicants release Council, and each of Council's Related Entities, from any Claim arising from or connected with: (a) (b) (c) the Proceeding; the circumstances or allegations giving rise to or referred to in the Proceeding; and any other Claim which is or could reasonably have been known to the Applicants as at the date of this Deed, whether or not the Claim is or could be known to the Applicants, and whether or not the Claim arises from or is connected with the Proceeding.
10.2
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11.1
11.2
12
12.1
11 Indemnity
11.1 Indemnity by the Applicants
On and from the Settlement Date, the Applicants indemnify Council and each of the Council's Related Entities against any loss or liability arising from or connected with a breach by the Applicants of clause 6 or clause 10.1.11.1.
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Deed of Settlement
12.2
13
12 Related Entities
(a) (b) It is not intended that any Related Entity of a party will execute this Deed. A Related Entity of a party may enforce clauses 9, 10, 11, and 1112 of this Deed as if the Related Entity were a party to the Deed.
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(iii) (b)
Each party represents and warrants to the other that as of the Deed Date, it will not have transferred to any other person any Claim referred to in clause 9.10.
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15.1
14 Confidentiality
14.1 Confidentiality by the Applicants of Deed
Subject to clause 14.2,15.2, the Applicantsparties must not disclose the existence of and terms of this Deed.
15.2
14.3
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Deed of Settlement
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15 Entire Agreement
This Deed contains the entire agreement between the parties with respect to its subject matter. It sets out the only conduct, representations, warranties, covenants, conditions, agreements or understandings (collectively Conduct) relied on by the parties and supersede all earlier Conduct by or between the parties in connection with their subject matter. None of the parties have relied on or are relying on any other conduct in entering into this Deed and completing the transactions contemplated by it.
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16 Amendment
This Deed may be amended only by another deed executed by the parties.
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17 Assignment
A party cannot assign, charge, encumber or otherwise deal with any of its rights or obligations under this Deed, or attempt or purport to do so, without the prior written consent of all other parties. Written consent will not be unreasonably withheld by any party.
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(ii)
20
19 Counterparts
This Deed may be executed in any number of counterparts. All counterparts together will be taken to constitute one instrument.
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20 Further Assurances
Each party must do anything necessary (including executing agreements and documents) to give full effect to this Deed and the transactions contemplated by it.
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(b)
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Deed of Settlement
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24
23 No Merger
The rights and obligations of the parties will not merge on the completion of any transaction contemplated by this Deed. They will survive the execution and delivery of any assignment or other document entered into for the purpose of implementing a transaction.
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24 No Waiver
A failure to exercise or a delay in exercising any right, power or remedy under this Deed does not operate as a waiver. A single or partial exercise or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing.
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27
26 Notices
Any notice, demand, consent or other communication (a Notice) given or made under this Deed: (a) (b) must be in writing and signed by the sender or a person duly authorised by the sender; must be delivered to the intended recipient by prepaid post (if posted to an address in another country, by registered airmail) or by hand or fax to the address or fax number below or the address or fax number last notified by the intended recipient to the sender: (i) to the Applicants: Blodwen Patricia May Allan, Esther Ann Allan and Donna Rebecca Allan [#]c/- P&E Law Suite 2, 37 Dalton Drive Maroochydore QLD 4558 Fraser Coast Regional Council (formerly Hervey Bay City Council) c/- Allens Level 31 Riverside Centre 123 Eagle Street Brisbane QLD 4000 Attention: Bill McCredie Fax No: (07) 3334 3444 (c) will be conclusively taken to be duly given or made: (i) (ii) in the case of delivery in person, when delivered; in the case of delivery by post, two Business Days after the date of posting (if posted to an address in the same country) or seven Business Days after the date of posting (if posted to an address in another country); and
(ii)
to Council:
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Deed of Settlement
(iii)
in the case of fax, on receipt by the sender of a transmission control report from the despatching machine showing the relevant number of pages and the correct destination fax number or name of recipient and indicating that the transmission has been made without error,
but if the result is that a Notice would be taken to be given or made on a day that is not a Business Day in the place to which the Notice is sent or is later than 4pm (local time) it will be conclusively taken to have been duly given or made at the start of business on the next Business Day in that place.
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27 Severability of Provisions
Any provision of this Deed that is prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of this Deed nor affect the validity or enforceability of that provision in any other jurisdiction.
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Deed of Settlement
Allans Road, Duckinwilla, Queensland Title Reference: 12990207 Lot Description: Lot 999 on Survey Plan 158435 County: Lennox Parish: Warrah Area: 28.5917 hectares
Allans Road, Duckinwilla, Queensland Title reference: 16217047 Lot description: Lot 3 on Survey Plan 159815 County: Lennox Parish: Dunmora Area: 13.942 hectares
Allans Road, Duckinwilla, Queensland Title Reference: 11228134 Lot description: Lot 2 on Survey Plan 159814 County: Lennox Parish: Dunmora Area: 44.4392 hectares
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Form 18
r.16 of the Land Court Rules 2000
Blodwen Patricia May Allan, Esther Ann Allan and Donna Rebecca Allan Applicants v. Fraser Coast Regional Council (formerly Hervey Bay City Council) Respondent
TAKE NOTICE that the Applicants discontinue the whole of the application against the Respondent. The Applicants do not represent any other person in the proceeding. Signed: (Applicant or Solicitor) Description: (of signatory) Dated: The Respondent consents to this discontinuance. Signed: (Respondent or Solicitor) Description: (of signatory) Dated: (If consent is on conditions, the conditions must be stated on this notice.) (If this notice is in relation to more than one respondent, each is to sign a consent in these terms.)
(Respondent or Solicitor) (Applicant or Solicitor)
3 4 Deed of Settlement
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5 6 Deed of Settlement
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Signed Sealed and Delivered for Fraser Coast Regional Council (formerly Hervey Bay City Council) by its duly authorised officer in the presence of:
Witness Signature
Print Name
Signed Sealed and Delivered by Blodwen Patricia May Allan in the presence of:
Witness Signature
Signature
Print Name
Signed Sealed and Delivered by Esther Ann Allan in the presence of:
Witness Signature
Signature
Print Name
Signed Sealed and Delivered by Donna Rebecca Allan in the presence of:
Witness Signature
Signature
Print Name
bybb A0125453510v23 120210924 page 19
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