wbwc without prejudice draft settlement deed (3).pdf fcrc attempt to force allan family to sign even...

7/27/2019 WBWC Without Prejudice Draft Settlement Deed (3).pdf FCRC attempt to force Allan family to sign even though it

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Allens is an independent partnership operating in alliance with Linklaters LLP.

Blodwen Patricia May Allan, Esther Ann Allan, Donna Rebecca Allan

Fraser Coast Regional Council (formerly Hervey Bay City Council)

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

AllensRiverside Centre123 Eagle StreetBrisbane QLD 4000Tel +61 7 3334 3000Fax +61 7 3334 3444www.allens.com.au

Allens, Australia 2013


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Deed of Settlement

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Contents

1 Definitions and Interpretation 1

1.1 Definitions 1

1.2 Interpretation 22 Warranty by Applicants 3

3 Settlement Terms 3

3.1 Payments 3

3.2 Settlement Amount 3

3.3 Method of Payment 3

3.4 No admission by the Council 3

4 Discontinuance of the Proceeding 3

5 Relocation or Demolition of Allan Dwelling 3

5.1 Election 3

5.2 Election to Relocate Allan Dwelling 4

5.3 Election to Demolish Allan Dwelling 4

6 Council Not Liable 4

7 Future Development on Balance Land 5

8 Boundary Fencing 5

9 Release 6

9.1 Release by Allan 6

9.2 Release by the Council 6

10 Covenant not to Sue 6

10.1 Covenant by Allan 610.2 Covenant by the Council 6

11 Indemnity 6

11.1 Indemnity by the Applicants 6

11.2 Indemnity by the Council 6

12 Related Entities 6

13 Acknowledgment and Representation 6

14 Confidentiality 7

14.1 Confidentiality by the Applicants 7

14.2 Permitted disclosure by the Applicants 7

14.3 Confidentiality by the Council 715 Entire Agreement 7

16 Amendment 7

17 Assignment 7

18 Costs and Stamp Duty 7

19 Counterparts 8

20 Further Assurances 8

21 Goods and Services Tax 8

22 Governing Law and Jurisdiction 8

23 No Merger 8

24 No Waiver 8

25 Time of the Essence 8


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Deed of Settlement

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26 Notices 8

27 Severability of Provisions 9

Schedule 1 Description of Resumed Land 10

Schedule 2 Form 18 Notice of Withdrawal or Discontinuance 11Schedule 3 The Allan Dwelling 13

Schedule 4 Public Road Reserve 15


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Deed of Settlement

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This Deed is made on 2013

Parties

1 Blodwen Patricia May Allan, Esther Ann Allan, Donna Rebecca Allan of [#], Brisbane in the

State of Queensland (together,Applicants).

2 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 Council resumed the Resumed Land on the Taking Date via the Taking of Land Notice.

B The Applicants were the owners of the Resumed Land immediately prior to the Taking Date.

C The Applicants made the Compensation Claim under the Act, which was referred to the Court on25 October 2011.

D The Applicants and Council have agreed to settle the Proceeding on the terms set out in this

Deed.

It is agreed as follows.

1 Definitions and Interpretation

1.1 Definitions

The following definitions apply unless the context requires otherwise:Actmeans theAcquisition of Land Act 1967(Qld).

Advance means the amount of $338,913.00 paid by Council to the Applicants on 31 March 2005

as an advance against compensation pursuant to section 23 of the Act.

Allan Dwellingmeans the existing dwelling house located on Lot 1 on SP159814, as marked on

the plan in Schedule 3.

Balance Landmeans the land described as Lot 1 on SP158435, Lot 4 on SP159815 and Lot 1

on SP159814, all in the County of Lennox, having a combined area of approximately 244

hectares.

Business Daymeans a day other than a Saturday, Sunday or public holiday.Claim includes any claim or liability of any kind (including one which is prospective or contingent

and one the amount of which is not ascertained) and, without limitation, costs (whether or not the

subject of a court order).

Compensation Claim means the claim for compensation dated 16 December 2004, as amended

on 25 October 2011.

Courtmeans the Land Court of Queensland.

Deedmeans this Deed of Settlement.

Deed Date means the date of this Deed.

Demolition Certification means written certification by an independent building inspector thatthe Allan Dwelling has been demolished in accordance with clause 5 herein.

Demolition Date means [# - insert - period not exceeding twelve months from Deed Date].


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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.

Proceedingmeans Blodwen Patricia May Allan, Esther Ann Allan, Donna Rebecca Allan vFraser 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 Entitymeans, 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 Certification means written certification by an independent building inspector thatthe 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].

Resumed Landmeans the land described in Schedule 1.

RL34 means an elevation of RL 34.00 metres Australian Height Datum (AHD).

Settlement Amounthas 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) the Relocation Certification; or

(ii) 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) Headings are for convenience only and do not affect interpretation.

(b) Mentioning anything afterincludes, including, for example, or similar expressions, doesnot limit what else might be included.

(c) 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.

(d) The following rules apply unless the context requires otherwise:

(i) The singular includes the plural, and the converse also applies.

(ii) If a word or phrase is defined, its other grammatical forms have a corresponding

meaning.

(iii) A reference to a clause is a reference to a clause of this Deed.

(iv) 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.


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(v) 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).

(vi) A reference to legislation or to a provision of legislation includes a modification orre-enactment of it, a legislative provision substituted for it and a regulation or

statutory instrument issued under it.

2 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.

3 Settlement Terms

3.1 Payments

Council will pay the following amounts to the Applicants:

(a) 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

(b) subject to the relocation or demolition of the Allan Dwelling in accordance with clause 5, a

further ex-gratia amount of $500,000 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 No admission by the Council

The payment referred to in clause 3.1(b) is not an admission of liability by the Council.

4 Discontinuance of the Proceeding

(a) Within 2 days of the Deed Date, the Applicants must discontinue the Proceeding by filing

a Form 18 Notice of Withdrawal or Discontinuance with the Court.

(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.

(c) Each party will bear its own costs of and incidental to the Proceeding and this Deed.

5 Relocation or Demolition of Allan Dwelling

5.1 Election

On or before the Election Date, the Applicants must notify Council in writing of their election to:

(a) relocate the Allan Dwelling in accordance with clause 5.2; or

(b) demolish the Allan Dwelling in accordance with clause 5.3.


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Deed of Settlement

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5.2 Election to Relocate Allan Dwelling

(a) If the Applicants elect to relocate the Allan Dwelling under clause 5.1(a):

(i) within 7 days after the Election Date, the Applicants must notify the Council in

writing as to the proposed new location of the Allan Dwelling, which the partiesagree can be on any part of the Balance Land above RL34; and

(ii) the Applicants must relocate the 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 (d) 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 5.2 reasonable access to the Balance Land in order to undertake

the Relocation Certification.

5.3 Election to Demolish Allan Dwelling

(a) If the Applicants elect to demolish the Allan Dwelling under clause 5.1(b), the Applicants

must demolish the dwelling by the Demolition Date.

(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 appropriately-

qualified inspectors to undertake the Demolition Certification (Demolition Inspector

List).

(c) 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.

(d) If Council considers that any or all of the inspectors identified in the Demolition InspectorList 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.

(e) 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.

6 Council Not Liable

(a) Each of the Applicants acknowledge and agree that they will undertake the relocation or

demolition of the Allan Dwelling in accordance with clause 5 entirely at their own risk.

(b) To the full extent permitted by law, each of the Applicants release Council and its agents,

employees, managers and contractors from:


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(i) any liability, Claim, loss, action, suit, costs, expenses or damage resulting from

the relocation or demolition of the Allan Dwelling, however occurring; and

(ii) loss, damage, death, injury to any property or person on Lot 1 on SP159814 or

on any land near it resulting from the relocation or demolition of the AllanDwelling, however occurring.

(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).

(d) Each of the Applicants indemnify (and agree to keep indemnified) Council and its agents,

employees, managers and contractors, from and against:

(i) any loss or liability arising from or connected with a breach by any of the

Applicants of clause 6(c);

(ii) 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.

7 Future Development on Balance Land

The Applicants agree that they will not build any habitable dwelling, or cause or permit anyone

else to build any habitable dwelling, on any part of the Balance Land below RL34.

8 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 ofCouncil constructing a boundary fence on the boundary line:

(i) between the Balance Land and the Resumed Land; and

(ii) along the boundary of the Public Road Reserve.

(b) Council must provide the Applicants with 7 days' prior written notice of its intention to

access the Balance Land (as necessary) to commence work on the boundary fences.

(c) Council acknowledges and agrees that work on the boundary fences:

(i) will only occur between the hours of 6am and 4pm, Monday to Friday;

(ii) will be undertaken as expeditiously as practicable; and

(iii) will be at the sole cost of Council.

(d) Once the boundary fences have been constructed:

(i) the parties acknowledge and agree that they will be jointly responsible for the

ongoing maintenance of the boundary fences; and

(ii) 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.


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Deed of Settlement

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9 Release

9.1 Release by Allan

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) the Proceeding;

(b) the circumstances or allegations giving rise to or referred to in the Proceeding; and

(c) 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.

9.2 Release by the Council

On and from the Settlement Date, Council releases the Applicants from any Claim arising from or

connected with:(a) the Proceeding; and

(b) the circumstances or allegations giving rise to or referred to in the Proceeding.

10 Covenant not to Sue

10.1 Covenant by Allan

On and from the Deed Date, Allan will not bring or pursue, or procure that a third party bring or

pursue, a Claim against Council or any of the Council's Related Entities in respect of any matter

which is the subject of a release under clause 9.1.

10.2 Covenant by the Council

On and from the Deed Date, Council will not bring or pursue, or procure that a third party bring or

pursue, a Claim against Allan in respect of any matter which is the subject of a release under

clause 9.2.

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.

11.2 Indemnity by the Council

On and from the Settlement Date, Council indemnifies the Applicants against any loss or liability

arising from or connected with a breach by the Council of clause 10.2.

12 Related Entities

(a) It is not intended that any Related Entity of a party will execute this Deed.

(b) A Related Entity of a party may enforce clauses 9, 10, and 11 of this Deed as if the

Related Entity were a party to the Deed.

13 Acknowledgment and Representation

(a) Each party acknowledges that:


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(i) it enters into this Deed fully and voluntarily on its own information and

investigation; and

(ii) it is aware that it, its legal advisers or other agents or advisers may discover facts

different from or in addition to the facts it now knows or believes to be true withrespect to the subject matter of this Deed; and

(iii) it fully, finally, absolutely and forever settles according to the provisions of this

Deed any and all Claims which it releases under clause 9.

(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.

14 Confidentiality

14.1 Confidentiality by the Applicants

Subject to clause 14.2, the Applicants must not disclose the existence of and terms of this Deed.

14.2 Permitted disclosure by the Applicants

The Applicants may disclose the existence or terms of this Deed:

(a) if required under any law; or

(b) to their financier and legal advisers for a legitimate purpose; or

(c) with the prior written consent of the Council.

14.3 Confidentiality by the Council

The Council is not subject to any confidentiality obligation in relation to, or in connection with, this

Deed and may disclose the existence and terms of this Deed to third parties.

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.

16 Amendment

This Deed may be amended only by another deed executed by the parties.

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.

18 Costs and Stamp Duty

(a) Each party must bear its own costs arising out of the negotiation, preparation and

execution of this Deed.

(b) The Council:


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(i) must pay all stamp duty and any related fines and penalties in respect of this

Deed, the performance of this Deed and each transaction effected by or made

under this Deed; and

(ii) is authorised to apply for and retain the proceeds of any refund due in respect ofstamp duty paid.

19 Counterparts

This Deed may be executed in any number of counterparts. All counterparts together will be

taken to constitute one instrument.

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.

21 Goods and Services Tax

(a) If GST is payable on a supply made under or pursuant to this Deed, the party providing

the consideration for that supply must pay as additional consideration an amount equal to

the amount of GST payable on that supply (the GST Amount). The GST Amount is not

payable until the supplier gives the recipient a tax invoice. This clause does not apply to

the extent that the consideration for the supply is expressly stated to be GST inclusive.

(b) In this clause words that have a specific meaning in the GST law (as defined in theA

New Tax System (Goods and Services Tax) Act 1999 (Cth)) shall have the same

meaning in this clause.

22 Governing Law and JurisdictionThis Deed is governed by the laws of Queensland. In relation to it and related non-contractual

matters each party irrevocably submits to the non-exclusive jurisdiction of courts with jurisdiction

there, and waives any right to object to the venue on any ground.

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.

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.

25 Time of the Essence

Time is of the essence of this Deed.

26 Notices

Any notice, demand, consent or other communication (a Notice) given or made under this Deed:

(a) must be in writing and signed by the sender or a person duly authorised by the sender;


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(b) 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 AnnAllan and Donna Rebecca Allan

[#]

(ii) to Council: 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) in the case of delivery in person, when delivered;

(ii) 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

(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.

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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Schedule 1 Description of Resumed Land

Allans Road, Duckinwilla, Queensland

Title Reference: 12990207

Lot Description: Lot 999 on Survey Plan 158435

County: Lennox

Parish: Warrah

Area: 28.5917 hectares


Title reference: 16217047

Lot description: Lot 3 on Survey Plan 159815

County: Lennox

Parish: Dunmora



Title Reference: 11228134

Lot description: Lot 2 on Survey Plan 159814

County: Lennox

Parish: Dunmora



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4 Deed of Settlement

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Schedule 2 Form 18 Notice of Withdrawal or Discontinuance


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Form 18r.16 of theLand Court

Rules 2000LAND COURT OF

QUEENSLAND

(Court Use Only)

NOTICE OF WITHDRAWAL OR DISCONTINUANCE

Land Court Reference: AQL627-11

In the matter of: 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: (Applicant or Solicitor)

(of signatory)

Dated:

The Respondent consents to this discontinuance.

Signed:

(Respondent or Solicitor)

Description: (Respondent or Solicitor)

(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 theseterms.)


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Schedule 3 The Allan Dwelling


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Schedule 4 Public Road Reserve


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Executed and delivered as a Deed in Queensland

Signed Sealed and Delivered forFraser

Coast Regional Council (formerly Hervey

Bay City Council) by its duly authorised

officer in the presence of:

Witness Signature Authorised Officer Signature

Print Name Print Name

Signed Sealed and Delivered byBlodwen Patricia May Allan in the

presence of:

Witness Signature Signature

Print Name

Signed Sealed and Delivered by Esther

Ann Allan in the presence of:


Print Name

Signed Sealed and Delivered by Donna

Rebecca Allan in the presence of:


Print Name

wbwc without prejudice draft settlement deed (3).pdf fcrc attempt to force allan family to sign even...

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