Deed of agreement: Trust Accounts under the Building ... · L\334377244.5 Deed of agreement: trust...

$Page 1: Deed of agreement: Trust Accounts under the Building ... · L\334377244.5 Deed of agreement: trust accounts under the Building Industry Fairness (Security of Payment) Act 2017 (Qld)$
L\334377244.5

Revised Consultation Draft: 5 June 2020

Deed of agreement: Trust Accounts under the Building Industry Fairness (Security of Payment) Act 2017 (Qld)

Queensland Building and Construction Commission (QBCC)

[Insert name and ABN of approved financial institution] (the Financial Institution)

L\334377244.5 i

Contents

1. Definitions and interpretation .............................................................................. 1

1.1 Definitions .............................................................................................. 1 1.2 Interpretation .......................................................................................... 4

2. Duration and special conditions ......................................................................... 5

3. Approval ................................................................................................................. 5

4. Representation and warranty .............................................................................. 5

5. General undertakings ........................................................................................... 6

5.1 Compliance ............................................................................................ 6 5.2 No set-off etc. ........................................................................................ 6

6. Information undertakings ..................................................................................... 6

6.1 Meeting .................................................................................................. 6 6.2 Reporting ............................................................................................... 6 6.3 Records ................................................................................................. 7

7. Investigators .......................................................................................................... 8

7.1 Co-operation with Investigator ............................................................... 8 7.2 Access ................................................................................................... 8

8. Termination ............................................................................................................ 8

9. Dispute resolution ................................................................................................. 9

9.1 General .................................................................................................. 9 9.2 Disputes relating to information undertakings ..................................... 10 9.3 Disputes not relating to information undertakings ............................... 10

10. Privacy ................................................................................................................. 10

10.1 Privacy Laws applying to the Financial Institution ............................... 10 10.2 Privacy Laws applying to QBCC .......................................................... 10 10.3 Agents .................................................................................................. 11

11. Governing law and jurisdiction ......................................................................... 11

11.1 Governing law ...................................................................................... 11 11.2 Jurisdiction ........................................................................................... 11

12. Notices ................................................................................................................. 11

12.1 How notice to be given ........................................................................ 11 12.2 When notice taken to be received ....................................................... 12 12.3 Notices sent by more than one method of communication ................. 13 12.4 Notices sent to or by QBCC ................................................................ 13

13. Miscellaneous ...................................................................................................... 13

13.1 No restriction on statutory functions .................................................... 13 13.2 No breach of laws ................................................................................ 13 13.3 Authorised Representative .................................................................. 13 13.4 Variation ............................................................................................... 13 13.5 Waiver .................................................................................................. 14 13.6 Further acts and documents ................................................................ 14 13.7 Entire agreement ................................................................................. 14 13.8 Severance ............................................................................................ 14 13.9 Time of essence .................................................................................. 14 13.10 Force Majeure ...................................................................................... 14 13.11 Confidentiality ...................................................................................... 15 13.12 Assignment .......................................................................................... 16 13.13 Costs .................................................................................................... 16 13.14 Counterparts ........................................................................................ 16

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Schedule 1 - Contract Particulars ....................................................................................... 17

Schedule 2 - Monthly report format .................................................................................... 18

Schedule 3 - Special conditions ......................................................................................... 20

L\334377244.5

Deed of agreement: trust accounts under the Building Industry Fairness (Security of Payment) Act 2017 (Qld)

Date

Parties Queensland Building and Construction Commission (the QBCC)

[Insert name of ABN of approved financial institution] (the Financial Institution)

Background

A. QBCC is a body corporate that is established under the QBCC Act.

B. The BIF Act requires that funds paid under certain contracts are held in trust accounts to protect the interests of subcontractors.

C. "Trust accounts" (as defined in the BIF Act) may only be kept at an "approved financial institution" (as defined in the BIF Act).

D. Under the BIF Act, a financial institution may only become an approved financial institution if it has entered into an agreement with QBCC about providing financial services for trust accounts.

E. The Financial Institution wishes to hold "trust accounts" and agrees to do so subject to the BIF Laws and the terms and conditions of this document.

Operative provisions

1. Definitions and interpretation

1.1 Definitions

In this document:

Alternative Financial Institution means an "alternative financial institution" as defined in the BIF Act.

Amendment Act means Building Industry Fairness (Security of Payment) and Other

Legislation Amendment Act 2020 (Qld).

Approval has the meaning given in clause 3(a)(i).

Authorised Representative means any QBCC Representative or any Financial Institution Representative.

BIF Act means Building Industry Fairness (Security of Payment) Act 2017 (Qld).

BIF Law means:

(a) the BIF Act;

(b) the QBCC Act; and

L\334377244.5 Deed of agreement 2

(c) any rule, regulation, statutory instrument or order having the force of law (or any notice or direction) at any time made under or in connection with the BIF Act or the QBCC Act.

Business Days means "business days" (as defined in the BIF Act).

Business Hours means between 9:00 am and 5:00 pm on a Business Day.

Commissioner means the "commissioner" (as defined in the BIF Act).

Contract Particulars means the particulars set out in Schedule 1.

Corporations Act means the Corporations Act 2001 (Cth).

Event of Insolvency means:

(a) a controller (as defined in section 9 of the Corporations Act), administrator or similar officer is appointed in respect of a person or any asset of a person;

(b) a liquidator or provisional liquidator is appointed in respect of a person;

(c) any application (not withdrawn or dismissed within 7 days) is made to a court for an order, an order is made, a meeting is convened or a resolution is passed, for the purpose of:

(i) appointing a person referred to in paragraph (a) or (b) of this definition;

(ii) winding up or deregistering a person; or

(iii) proposing or implementing a scheme of arrangement, other than with the prior approval of QBCC under a solvent scheme of arrangement pursuant to Part 5.1 of the Corporations Act;

(d) any application (not withdrawn or dismissed within 7 days) is made to a court for an order, a meeting is convened, a resolution is passed or any negotiations are commenced, for the purpose of implementing or agreeing:

(i) a moratorium of any debts of a person;

(ii) any other assignment, composition or arrangement (formal or informal) with a person's creditors; or

(iii) any similar proceeding or arrangement by which the assets of a person are subjected conditionally or unconditionally to the control of that person's creditors or a trustee,

or any agreement or other arrangement of the type referred to in this paragraph (d) is ordered, declared or agreed to;

(e) as a result of the operation of section 459F(1) of the Corporations Act, a person is taken to have failed to comply with a statutory demand (as defined in the Corporations Act);

(f) any writ of execution, garnishee order, mareva injunction or similar order, attachment or other process is made, levied or issued against or in relation to any asset of a person;

(g) anything analogous to anything referred to in paragraphs (a) to (f) inclusive of this definition, or which has a substantially similar effect, occurs with respect to a person under any law; or


(h) a person is, or admits in writing that it is, or is declared to be, or is taken under any applicable law to be (for any purpose), insolvent or unable to pay its debts.

Financial Institution Representative means:

(a) the person specified as the "Financial Institution Representative" in the Contract Particulars; or

(b) any other person appointed by the Financial Institution at any time as its representative for the purposes of this document and whose appointment has been notified to QBCC in accordance with clause 13.3(b).

Force Majeure Event means any one or more, or a combination, of the following:

(a) any war, riot or armed conflict;

(b) any flood, storm or earthquake;

(c) any act of terrorism or sabotage; or

(d) any labour strike, stoppage or other industrial disturbance,

which (either separately or together) directly prevents (or delays) any party from performing its obligations under this document and was beyond that party's reasonable control and not caused or contributed to by that party or any of its affiliates.

Government Authority means any government or any governmental or semi-governmental entity, authority, agency, commission, corporation or body (including those constituted or formed under any Statute), local government authority, administrative or judicial body or tribunal or stock exchange.

Handle means collect, hold, use, disclose, process, store, transfer, access, correct, deal with or handle.

Historic BIF Act means the BIF Act in the form immediately before the commencement of the Amendment Act.

Information Privacy Act means Information Privacy Act 2009 (Qld) including the "Information Privacy Principles" in that Act.

Investigator means any person who has been appointed as a "special investigator" (as defined in the BIF Act) or an "investigator" under the QBCC Act and provided the Financial Institution with evidence of that appointment.

Month means calendar month.

Monthly Report has the meaning given in clause 6.2(b).

Personal Information means "personal information" within the meaning of the Information Privacy Act.

Power means any right, power, authority, discretion, remedy or privilege conferred on a person under this document or by law.

Privacy Act means the Privacy Act 1988 (Cth) including the "Australian Privacy Principles" in that Act.

Privacy Laws means the Privacy Act, the Information Privacy Act and any other law, regulation or lawful requirement or direction made under or arising from or through the


foregoing (eg the requirements of a mandatory code) relating to privacy or the Handling of information about individuals whether in Australia or elsewhere.

QBCC Act means the Queensland Building and Construction Commission Act 1991 (Qld).

QBCC Representative means:

(a) the person specified as the "QBCC Representative" in the Contract Particulars; or

(b) any other person appointed by QBCC at any time as its representative for the purposes of this document and whose appointment has been notified to the Financial Institution in accordance with clause 13.3(b).

Relevant Document means any document or information held by the Financial Institution:

(a) relating to any Trust Account or monies deposited into any Trust Account;

(b) relevant to a Trustee's compliance with the BIF Laws; or

(c) in respect of which an Investigator is entitled to have access under the terms of its appointment or Chapter 2 Subdivision 2 of the BIF Act.

Statute means any legislation of the Parliament of the Commonwealth of Australia, of any State or Territory of the Commonwealth of Australia or of any other jurisdiction or Government Authority in force at any time.

Term has the meaning given in clause 2(a).

Trustee means any "trustee" (as defined in the BIF Act) of any Trust Account.

Trust Account means any "project trust account" or "retention trust account" (as each such term is defined in the BIF Act) held at the Financial Institution at any time.

1.2 Interpretation

In this document:

(a) headings are for convenience only and do not affect interpretation;

and unless a contrary indication appears, any reference in this document to:

(b) "person" includes an individual, the estate of an individual, a corporation, a Government Authority, an association or a joint venture and a trust;

(c) a reference to a party includes that party's executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes a substituted or an additional trustee;

(d) a reference to a document is to that document as varied, novated, ratified, replaced or restated from time to time;

(e) a reference to a law includes any law, principle of equity, Statute and official directive of any Government Authority and a reference to a Statute includes any rule, regulation, ordinance, by-law, statutory instrument, order or notice at any time made under that legislation and, in each case, any consolidations, amendments, re-enactments and replacements;

(f) a word importing the singular includes the plural (and vice versa) and a word indicating a gender includes every other gender;


(g) a reference to a party, clause or schedule is a reference to a party, clause or schedule to or of this document and a reference to this document includes all schedules to it;

(h) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;

(i) "includes" in any form is not a word of limitation;

(j) where the day on or by which any act, matter or thing is to be done is a day other than a Business Day, that act, matter or thing will be done on the next Business Day;

(k) a reference to a "month" is, where that month is the last month to occur in any period, a reference to a period starting on the relevant date in a month and ending on the numerically corresponding day in the next month, except that if there is no numerically corresponding day in the next month, the period will end on the last Business Day in that month; and

(l) a time of day is a reference to Brisbane time.

2. Duration and special conditions

(a) This document commences on the later of:

(i) its date; and

(ii) [date to be inserted by QBCC],

and continues until it is terminated in accordance with clause 8 (the Term).

(b) To the extent of any inconsistency between any term of this document and the special conditions set out in Schedule 3, the special conditions will prevail.

3. Approval

(a) The Financial Institution acknowledges and agrees that:

(i) this document must be entered into before the Commissioner may approve the Financial Institution to hold any "trust account" (as defined in the BIF Act) (the Approval);

(ii) if this document is terminated, the Commissioner may immediately revoke the Approval.

(b) Nothing in this document applies to any "project bank account" (as defined in the Historic BIF Act) to the extent that that account has not been transitioned under section 211C of the Amendment Act to the "new scheme" (as defined in section 211C(9) of the Amendment Act).

4. Representation and warranty

The Financial Institution represents and warrants to QBCC (on the date of this document) that:

(a) it has the power to enter into, perform and deliver, and has taken all necessary action to authorise its entry into, performance and delivery of, this document and the transactions contemplated by this document;; and


(b) this document is enforceable against the Financial Institution in accordance with its terms; and

(c) the Financial Institution is an "authorised deposit-taking institution" within the meaning of the Banking Act 1959 (Cth).

5. General undertakings

5.1 Compliance

The Financial Institution will:

(a) comply in all respects with its obligations under the BIF Laws; and

(b) not, subject to clause 13.2,obstruct QBCC or the Commissioner from exercising their respective Powers or otherwise carrying out their respective functions under the BIF Laws.

5.2 No set-off etc.

The Financial Institution agrees and acknowledges that it does not have (and will not purport to have) any recourse or right (whether by way of set-off, counter-claim, security interest or otherwise) against any Trust Account or the amounts standing to the credit of any Trust Account.

6. Information undertakings

6.1 Meeting

(a) QBCC and the Financial Institution will ensure that their respective Authorised Representatives meet (in person or by phone):

(i) annually (not later than 15 Business Days after the end of each anniversary of the date of this document); and

(ii) as otherwise:

A. agreed between them; or

B. requested by either of them on 10 Business Days' notice,

to review and discuss:

(iii) the requirements and operation of this document (including opportunities to improve the future operation of this document);

(iv) subject to clause 13.2, any matters contemplated under this document or arising out of the information provided by the Financial Institution to QBCC, the Commissioner or any Investigator under this document or the BIF Laws; and

(v) the requirements of any BIF Laws.

(b) Any variations to this document as a result of the meetings held under clause 6.1(a) will be made in accordance with clause 13.4(a).

6.2 Reporting

(a) The Financial Institution will:


(i) (as soon as practicable after it becomes aware) notify QBCC (and the Commissioner) if any Trust Account is overdrawn; and

(ii) provide QBCC with a Monthly Report (as defined in clause 6.2(b)) as soon as it becomes available (but in any event within 5 Business Days after the end of each month);

(iii) as soon as practicable after it becomes aware, notify QBCC:

A. if the Financial Institution has breached any term of this document (and the steps, if any, it is taking to remedy that breach or suspected breach); or

B. of the occurrence of any other event that may entitle QBCC to terminate this document under clause 8(b); and

(iv) subject to clause 13.2, provide QBCC with any further information as QBCC or the Commissioner (each acting reasonably) require from time to time (and which QBCC or the Commissioner is entitled to request under this document, any BIF Law or any other law).

(b) A Monthly Report means a report that:

(i) is in the format set out in Schedule 2; and

(ii) includes the following information for that month:

A. the total number of Trust Accounts;

B. the account name of each Trust Account and the name of the relevant trustee in whose name that Trust Account is held;

C. the account (and BSB) number of each Trust Account; and

D. if a Trust Account was opened or closed in that month, the date on which that Trust Account was opened and/or closed,

together with any other information specified in Schedule 2 or which:

1) the Commissioner reasonably considers necessary to exercise the Commissioner's Powers under the BIF Act; or

2) QBCC or the Commissioner reasonably considers necessary to investigate any person's compliance with this document or any BIF Law.

6.3 Records

The Financial Institution will maintain during the Term (and for a period of seven (7) years after the termination of this document):

(a) records relating to each Trustee and Trust Account; and

(b) any information provided to QBCC, the Commissioner or any Investigator pursuant to this document or any BIF Law.


7. Investigators

7.1 Co-operation with Investigator

If the Commissioner appoints an Investigator, the Financial Institution will co-operate (in good faith) with that Investigator.

7.2 Access

(a) Subject to clause 13.2, the Financial Institution will:

(i) to the extent required under the provisions under any BIF Laws; and

(ii) subject to any conditions set out in the written instrument under which the relevant Investigator has been appointed,

allow any Investigator (and any employee, agent or delegate of any Investigator) to (on reasonable notice and without charge) have access to examine all Relevant Documents The Investigator (and any employee, agent or delegate of any Investigator) may make copies of any Relevant Documents to which it has access to under clause 7.2(a) and the Financial Institution will provide them with the necessary facilities to enable them to do so.

(b) Nothing in this clause derogates from the Powers of an Investigator under the BIF Laws or otherwise.

8. Termination

(a) Either party to this document may terminate this document by [60] days' notice i to the other party.

(b) Without limiting its rights under clause 8(a), QBCC may also terminate this document immediately by notice to the Financial Institution if:

(i) the Financial Institution breaches any term of this document and, if that breach is capable of remedy (and the breach does not also contravene any BIF Law), it has not remedied that breach within 14 days of the earlier of:

A. QBCC giving it notice of that breach; and

the Financial Institution becoming aware of that breach;

(ii) the Financial Institution does not comply with any BIF Law;

(iii) the Commissioner or QBCC is obliged by law to terminate this document;

(iv) the Commissioner revokes the Approval (and is legally entitled to do so);

(v) an Event of Insolvency occurs in relation to the Financial Institution; or

(vi) the Financial Institution ceases to carry on business or to be an "authorised deposit-taking institution" within the meaning of the Banking Act 1959 (Cth).

(c) If this document is terminated pursuant to clause 8(a) or clause 8(b), the Financial Institution will:


(i) have no right to damages or to pursue any action whatsoever against the Commissioner or the QBCC as a result of that termination;

(ii) co-operate (in good faith) with each Trustee, the Commissioner and QBBC to ensure that all of the Trust Accounts are transferred to an Alternative Financial Institution (within the timeframes stipulated by the Commissioner or QBCC in its notice under clause 8(b) or such longer period as the Commissioner or QBCC may agree); and

(iii) (without unreasonable delay) notify each Trustee of that termination;

(iv) continue to:

A. comply with its obligations under this document relating to any Trust Accounts that were held with it prior to that termination (until those Trust Accounts are closed and/or transferred to Alternative Financial Institutions); and

B. prepare and deliver a Monthly Report for each month following the termination of this document in which it holds (or has held) any Trust Account.

(d) All provisions of this document which, expressly or by implication from their nature, are intended to survive termination of this document will survive its termination, including any provision in connection with:

(i) confidentiality;

(ii) any obligation to make any records or information available to QBCC or the Commissioner;

(iii) any obligation which this document requires a party to undertake after the termination of this document;

(iv) any right or obligation arising on termination of this document or under any BIF Law; and

(v) any rights or remedies already accrued to either party under, or in respect of any breach of, this document.

9. Dispute resolution

9.1 General

(a) A party must not start court proceedings (except proceedings seeking interlocutory relief) in respect of a dispute arising out of this document (“Dispute”) unless it has complied with this clause.

(b) A party claiming a Dispute has arisen must give to the other party a notice of the Dispute and specifying the matters in dispute.

(c) Each party acknowledges and agrees that:

(i) it will continue to perform its obligations under this document notwithstanding the existence of any Dispute;

(ii) it will act in good faith and take reasonable steps to resolve any Dispute; and


(iii) nothing in this clause 9 will prevent, fetter or restrict QBCC or the Commissioner from exercising its Powers (including taking any enforcement action under any BIF Laws) (whether under this document, at law or otherwise) while a Dispute exists.

9.2 Disputes relating to information undertakings

(a) Notwithstanding anything in this clause 9, where the Dispute relates to the information undertakings in clause 6, the Financial Institution and QBCC agree to facilitate their Authorised Representatives to meet and promptly resolve the Dispute within 14 days of receipt of a notice of that Dispute under clause 9.1(b) (the Initial Period).

(b) If the parties have not resolved the Dispute within the Initial Period, the Financial Institution will arrange for one of its senior managers to meet with the Commissioner and attempt to resolve the Dispute within 14 days of the expiry of the Initial Period (without counting the last day of the Initial Period) or such longer period as the parties may agree (the Extended Period).

(c) If the parties have not resolved the Dispute within the Extended Period, either may start court proceedings in respect of the Dispute.

9.3 Disputes not relating to information undertakings

Notwithstanding anything in this clause 9, where the Dispute is not one to which clause 9.2 relates, the Financial Institution will arrange for one of its senior managers to meet with the Commissioner and attempt to resolve the Dispute within 14 days of receipt of a notice of that Dispute under clause 9.1(b). If the parties have not resolved the Dispute within that period, either may start court proceedings in respect of that Dispute.

10. Privacy

10.1 Privacy Laws applying to the Financial Institution

The Financial Institution must, in respect of information:

(a) disclosed by the Financial Institution to QBCC; or

(b) collected by the Financial Institution from QBCC,

comply with Privacy Laws applying to the Financial Institution.

10.2 Privacy Laws applying to QBCC

(a) QBCC must, in respect of information:

(i) disclosed by QBCC to the Financial Institution; or

(ii) collected by QBCC from the Financial Institution,

comply with the Information Privacy Act.

(b) The Financial Institution must, in respect of Personal Information Handled by QBCC in connection with this document or any BIF Law, provide reasonable assistance to QBCC to comply with Privacy Laws applying to QBCC.


(c) Subject to clause 10.2(d), the Financial Institution must, in respect of Personal Information disclosed by QBCC to the Financial Institution, not use or disclose the Personal Information for a purpose other than the purpose for which the Personal Information is disclosed to the Financial Institution by QBCC.

(d) Clause 10.2(c) does not prevent the Financial Institution from disclosing Personal Information if the disclosure is required to be made by (or authorised under) law.

(e) The Financial Institution must take all reasonable steps to ensure that Personal Information disclosed by the Financial Institution to QBCC is, at the time it is disclosed to QBCC:

(i) complete and up to date;

(ii) accurate; and

(iii) not misleading.

10.3 Agents

Without limiting any other clause of this deed, a reference in this clause 10 (excluding clause 10.2(a)) to QBCC, includes a reference to an Investigator or another person acting on QBCC's behalf.

11. Governing law and jurisdiction

11.1 Governing law

This document is governed by the law applying in Queensland.

11.2 Jurisdiction

The parties irrevocably:

(a) submits to the non-exclusive jurisdiction of the courts of Queensland, and the courts competent to determine appeals from those courts, with respect to any proceedings which may be brought at any time relating to this document; and

(b) waives any objection it may now or in the future have to the venue of any proceedings, and any claim it may now or in the future have that any proceedings have been brought in an inconvenient forum, if that venue falls within clause 11.2(a).

12. Notices

12.1 How notice to be given

Each communication (including each notice, consent, approval, request and demand) under this document:

(a) must be given to a party:

(i) using one of the following methods (and no other method) namely, hand delivery, courier service, prepaid express post or email; and

(ii) using the address or other details for the party set out in the Contract Particulars (or as otherwise notified by that party to each other party from time to time under this clause 12.1) (which, in each case, must include a physical address located in Queensland);


(b) must be in legible writing and in English;

(c) (in the case of communications other than email) must be signed by the sending party or by the sending party's Authorised Representative;

(d) (in the case of email) must:

(i) state the name of the sending party or the sending party's Authorised Representative and state that the email is a communication under or in connection with this document; and

(ii) if the email contains attachments ensure the attachments are in PDF or other non-modifiable format the receiving party can open, view and download at no additional cost,

and communications sent by email are taken to be signed by the named sender.

12.2 When notice taken to be received

Without limiting the ability of a party to prove that a notice has been given and received at an earlier time, each communication (including each notice, direction, consent, approval, request and demand) under or in connection with this document is taken to be given by the sender and received by the recipient:

(a) (in the case of delivery by hand or courier service) on delivery;

(b) (in the case of prepaid express post) on the second Business Day after the date of posting;

(c) (in the case of email, whether or not containing attachments) the earlier of:

(i) the time sent (as recorded on the device from which the sender sent the email) unless, within 4 hours of sending the email, the party sending the email receives an automated message that the email has not been delivered;

(ii) receipt by the sender of an automated message confirming delivery; and

(iii) the time of receipt as acknowledged by the recipient (either orally or in writing),

provided that:

(d) the communication will be taken to be so given by the sender and received by the recipient regardless of whether:

(i) the recipient is absent from the place at which the communication is delivered or sent;

(ii) the communication is returned unclaimed; or

(iii) (in the case of email) the email or any of its attachments is opened by the recipient;

(e) if the communication specifies a later time as the time of delivery then that later time will be taken to be the time of delivery of the communication; and

(f) if the communication would otherwise be taken to be received on a day that is not a working day or after 5.00 pm, it is taken to be received at 9.00 am on the next working day ("working day" meaning a day that is not a Saturday, Sunday or public


holiday and on which banks are open for business generally, in the place to which the communication is delivered or sent).

12.3 Notices sent by more than one method of communication

If a communication delivered or sent under this clause 12 is delivered or sent by more than one method, the communication is taken to be given by the sender and received by the recipient whenever it is taken to be first received in accordance with clause 12.2.

12.4 Notices sent to or by QBCC

Unless expressly stated otherwise, any communication sent or received by QBCC under this document will be taken to have been sent or received by QBCC and the Commissioner.

13. Miscellaneous

13.1 No restriction on statutory functions

The Financial Institution agrees that:

(a) nothing in this document will in any way unlawfully restrict (or otherwise unlawfully affect) the unfettered discretion of QBCC or the Commissioner to exercise any of its statutory functions or powers; and

(b) anything which QBCC or the Commissioner does, fails to do, or purports (in good faith) to do, pursuant to their statutory functions or powers or in the course of the creation or development of their policies and procedures and strategic decisions will be deemed not to be an act or omission by QBCC under this document and will not entitle the Financial Institution to make any claim against QBCC or the Commissioner arising out of the subject manner of this document.

13.2 No breach of laws

Notwithstanding any other provisions of this document, QBCC agrees that the Financial Institution is not required by this document to do anything that would cause it to be in breach of its financial services licence or any law, provided that the Financial Institution has notified QBCC of the details of the purported breach or otherwise satisfied QBCC (acting reasonably) of the conflicting requirements.

13.3 Authorised Representative

(a) Each party must ensure that at all times throughout the Term there is at least one natural person appointed by it as its Authorised Representative.

(b) If a party appoints a new person as its Authorised Representative that appointment will not be effective until that party gives notice of that appointment (and the details of its new Authorised Representative) to the other party.

13.4 Variation

(a) This document may only be varied by an agreement in writing executed by both parties.

(b) It will be sufficient evidence of an agreement to vary a schedule to this document if the parties execute and date a document purporting to be a substitute schedule.


13.5 Waiver

(a) No right under this document will be deemed to be waived except by notice in writing signed by the party granting the waiver.

(b) A waiver by either party pursuant to clause 13.5(a) will not prejudice that party’s rights in respect of any subsequent breach of this document by the other party.

(c) Subject to clause 13.10(a), any failure by either party to enforce any clause of this document, or any forbearance, delay or indulgence granted by one party to the other party, will not be construed as a waiver of rights under this document.

13.6 Further acts and documents

Subject to clause 13.2, the Financial Institution will:

(a) perform all acts and execute and deliver all further documents as QBCC, acting reasonably, requires for facilitating the exercise of any Power by QBCC or the Commissioner; and

(a) comply with privacy, confidentiality and security measures or protocols reasonably required by QBCC or as agreed by the parties in writing from time to time.

13.7 Entire agreement

To the extent permitted by law, in relation to their subject matter, this document:

(a) embodies the entire understanding of the parties, and constitute the entire terms agreed by the parties; and

(b) supersede any prior written or other agreement of the parties.

13.8 Severance

If at any time any provision of this document is or becomes illegal, invalid, void or unenforceable in any respect under the law of any jurisdiction, that will not affect or impair the legality, validity or enforceability:

(a) in that jurisdiction of any other provision of this document; or

(b) under the law of any other jurisdiction of that or any other provision of this document.

13.9 Time of essence

Time is of the essence in respect of each Financial Institution's obligations under this document.

13.10 Force Majeure

(a) A party will not be liable to the other party for failure to carry out any of its obligations under this document if, and only to the extent and for the time that, it is prevented or delayed from doing so by any Force Majeure Event.

(b) A party claiming the benefit or protection of this clause must:

(i) promptly give notice to the other party of the Force Majeure Event;


(ii) take all reasonable steps to ameliorate and remedy the Force Majeure Event without delay; and

(iii) resume performance in full of its obligations under this document as soon as practicable after the Force Majeure Event has occurred.

13.11 Confidentiality

(a) Subject to clause 13.11(b) and 13.11(c), each party must keep confidential and must procure that each of their respective officers, employees, professional advisers, agents and attorneys keeps confidential:

(i) the terms of this document;

(ii) all negotiations between the parties in relation to the subject matter of this document; and

(iii) any information arising under, out of or in connection with this document.

(b) Nothing in this document prevents a person from disclosing matters referred to in clause 13.11(a):

(i) if the disclosure is required to be made by (or authorised under) law (including under the Right to Information Act 2009 (Qld) or under any BIF Law) or the rules of a recognised stock or securities exchange;

(ii) if the disclosure is required to be made by QBCC to satisfy:

A. the disclosure requirements of the Auditor General; or

B. the requirements of Parliamentary accountability;

(iii) if the disclosure is made by way of a written announcement the terms of which have been agreed in writing by the parties prior to the making of the announcement;

(iv) if the disclosure is reasonably required to enable a party to perform its obligations under this document;

(v) to any professional adviser of a party who has been retained to advise in relation to this document or to the auditor of a party;

(vi) to any Alternative Financial Institution to whom any Trust Account is proposed to be transferred;

(vii) with the prior written approval of the party; or

(viii) where the matter has come into the public domain otherwise than as a result of a breach by any party of this document.

(c) Subject to the Approval being granted and continuing, QBCC will (and the Financial Institution acknowledges and agrees that QBCC will) publish the name and details of the Financial Institution on a list of "approved financial institutions". The Financial


Institution will promptly confirm the details required by QBCC for that purpose and advise QBCC of any changes that need to be made to them at any time.

13.12 Assignment

(a) The Financial Institution must not assign, novate or otherwise transfer any of its rights or obligations under this document without the prior written consent of QBCC.

(b) QBCC:

(i) may assign, novate or otherwise transfer any of its rights or obligations under this document to any other Government Authority without the prior written consent of the Financial Institution; and

(ii) (other than as permitted under clause 13.12(b)(i)) must not assign, novate or otherwise transfer any of its rights or obligations under this document without the prior written consent of the Financial Institution.

13.13 Costs

Except as otherwise provided in this document or in the BIF Act, each party must pay its own costs and expenses in connection with the negotiation, preparation, execution and performance of this document.

13.14 Counterparts

This document may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of this document.


Schedule 1 - Contract Particulars

Subject Particular

1. Name and details of QBCC Representative [Insert address]

Attention:

Telephone:

Email:

2. Name and details of Financial Institution Representative [Insert address]

Attention:

Telephone:

Email:

3. Notice details of QBCC to be used for:

(a) all communications in connection with clauses 6.2(a)(i) and [ ] of this document:

[Insert address]

Attention:

Telephone:

Email:

(b) for all other communications: [Insert address]

Attention:

Telephone:

Email:

4. Notice details of the Financial Institution [Insert address]

Attention:

Telephone:

Email:

-


Schedule 2 - Monthly report format

1. Media

Electronic Data File in either .Txt or .CSV format and transmitted by email to the address listed on Schedule 2.

2. Name of File: BALANCE

FIELD DESCRIPTION FORMAT SIZE

The total number of Trust Accounts Decimal 2 places

Month ending date (YYYYMMDD) Date 8

Number of trust accounts opened during the month Numeric

Number of trust accounts closed during the month Numeric

Number of trust accounts overdrawn during that month Numeric

Number of trust accounts that have had their names

changed during that month

All fields are mandatory. Note: There should be only one record contained in this file.

3. Name of File: DETAILS

FIELD DESCRIPTION FORMAT SIZE

Bank state branch number (BSB) – include leading zeroes where applicable

Alphanumeric 6

Branch name Alphanumeric 40

Trust account number Alphanumeric 20

Trust account name Alphanumeric 100

Name of trustee (in whose name the trust account is held) Alphabetical

Date opened (YYYYMMDD) Date 8

Date closed (YYYYMMDD or NULL) Date 8

All fields are mandatory. While the account is open insert the word NULL in the Date Closed field. A control total is required at the end of the file containing the number of trust accounts reported on.

Note: There should be one record in this file for each trust account held, opened or closed during the month.

4. Common Requirements

The following requirements apply to all files in .Txt File format:


(a) All data should be supplied in variable length format, with each field separated by a comma.

(b) All alphanumeric fields are to be enclosed in double quotes. Do not include commas or single quote characters within any data fields.

(c) All fields of type decimal require the decimal point to be included.

(d) Do not include any titles, column labels, or blank lines in the files and each record should start on a new line.

(e) Ensure that the order of the fields in each file is as listed above.


Schedule 3 - Special conditions

[To be inserted] / [Intentionally left blank]


Executed as a deed.

QBCC

Signed, sealed and delivered for and on behalf of Queensland Building and Construction Commission by its attorney in the presence of:

Signature of witness Signature of attorney who declares that the attorney has not received any notice of the revocation of the power of attorney

Full name of witness Full name of attorney

Financial Institution

Signed, sealed and delivered for and on behalf of [insert name of Financial Institution] by its attorneys under a power of attorney dated [ ] in the presence of:

Signature of attorney who declares that the attorney has not received any notice of the revocation of the power of attorney

Signature of attorney who declares that the attorney has not received any notice of the revocation of the power of attorney

Full name of attorney Full name of attorney

Signature of witness Signature of witness

Full name of witness Full name of witness

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