THE HONOURABLE REECE WHITBY MLA, the Minister of the Crown for the time being charged with the administration of the Casino Control Act 1984 acting for and on behalf of the State of Western Australia and its instrumentalities from time to time (“the State”);
BURSWOOD NOMINEES LIMITED (ACN 078 250 307) of 201 Great Eastern Highway, Burswood in the State of Western Australia as trustee of the Burswood Property Trust (“the Trustee”);
BURSWOOD RESORT (MANAGEMENT) LIMITED (ACN 009 396 945) of 201 Great Eastern Highway, Burswood in the State of Western Australia as manager of the Burswood Property Trust (“the Manager”).
A. The State, the Trustee (by virtue of the West Australian Trustees Limited (Merger) Act 1989) and the Manager (by virtue of a deed of retirement and appointment of manager made on 13 August 1990 and a deed of assumption and covenant made on 13 November 1991) are parties to an agreement dated 20 February 1985 ratified by and scheduled to the Casino (Burswood Island) Agreement Act 1985 as amended by:
(m) the Thirteenth Supplementary Agreement made on 16 March 2015;
(n) the Fourteenth Supplementary Agreement made on 6 October 2016;
(o) the Fifteenth Supplementary Agreement made on 7 May 2019; and
(p) the Sixteenth Supplementary Agreement made on 14 April 2023,
B. The parties have agreed to further amend the State Agreement for the purpose of more efficiently or satisfactorily implementing or facilitating its objectives.
THE PARTIES AGREE AS FOLLOWS:
Definitions and Interpretation
Words and expressions defined in the State Agreement when used in this Agreement have, unless the context otherwise requires, the same meanings as in the State Agreement and the provisions of clause 2 of the State Agreement as to interpretation apply to this Agreement.
Variation and Operation
(a) The State shall introduce and sponsor a Bill in the Parliament of Western Australia to ratify this Agreement and endeavour to secure its passage as an Act.
(b) The provisions of this Agreement other than this clause and clause 1 shall not come into operation until:
(i) the Bill referred to in sub‑clause (a) has been passed by the Parliament of Western Australia and comes into operation as an Act; and
(ii) the ratification provisions of the Bill referred to in sub‑clause (a) come into operation.
(c) On the said Bill commencing to operate as an Act and the ratification provisions of the said Bill coming into operation, this Agreement shall operate and take effect according to its terms notwithstanding the provisions of any Act or law of Western Australia.
Clause 23 amended
Clause 23 of the State Agreement is amended:
(a) in clause 23(8) by deleting the words "clause 33 provided that pending the determination upon such reference Casino Tax at such higher rate shall be payable by the Trustee provided further that" and replacing them with "clause 33 provided that, pending the determination upon such reference, Casino Tax at such higher rate shall be payable by the Trustee, provided further that";
(b) in clause 23(10)(b) by:
(i) inserting "until 23 December 2023" after the words "following the Completion Date"; and
(ii) deleting the words "preceding the Completion Date." in clause 23(10)(b) and replacing them with "preceding the Completion Date; and";
(c) by inserting after clause 23(10)(b) the following clause:
"(c) on and from 24 December 2023, $12,000,000.00 or an alternative amount pursuant to a notice issued under clause 23(13), subject to clauses 23(15) and (16)."; and
(d) by adding the following clauses:
"(13) The Minister may, with prospective effect from an Anniversary Date at any time after 24 December 2023 and having regard to the reasonable costs and expenses of the Commission in exercising its functions in relation to the Casino, review the Annual Specified Amount by not less than 12 weeks' notice to the Trustee specifying an alternative Annual Specified Amount, the Anniversary Date on and from which such alternative Annual Specified Amount is payable, and the reasons for specifying an alternative Annual Specified Amount.
(14) If the Minister issues a notice under clause 23(13) (“ASA Notice”), then the Annual Specified Amount will be the amount specified in the ASA Notice and will apply on and from the Anniversary Date specified in the ASA Notice.
(15) If a dispute shall arise between the Minister and the Trustee as to whether the amount specified in an ASA Notice under clause 23(13) is reasonable having regard to the costs and expenses of the Commission in exercising its functions in relation to the Casino, such dispute shall be referred to arbitration in accordance with clause 33 provided that, pending the determination upon such reference, the amount specified in the ASA Notice shall be the Annual Specified Amount for the purposes of clause 23(1)(b), provided further that if the dispute is decided in favour of the Trustee the State shall as soon as practicable cause to be repaid to the Trustee any portion of such amount so decided.
(16) The Annual Specified Amount is escalated on each Anniversary Date in respect of which an ASA Notice has not been given by the percentage by which the CPI last published prior to such Anniversary Date has increased over the CPI last published prior to the later of 24 December 2023, or the last ASA Notice.
(17) To give effect to the parties' agreement that the Annual Specified Amount specified in clause 23(10)(c) takes effect from 24 December 2023, if an amount has been paid by the Trustee under clause 23(1)(b) for the period commencing 24 December 2023, then the Trustee must pay to the Commission the difference between that amount and the amount that would have been payable if clause 23(10)(c) was inserted into this Agreement on 24 December 2023. The difference is payable at the same time and in the same manner as the next quarterly instalment is due under clause 23(1)(b)."
Clause 33 amended
Clause 33 of the State Agreement is amended:
(a) in clause 33(1) by:
(i) deleting "their umpire" and substituting "a third and presiding arbitrator"; and
(ii) deleting "Arbitration Act 1895" and substituting "Commercial Arbitration Act 2012"; and
(b) in clause 33(3) by deleting the words "or umpire (as the case may be)".
Clause 36 amended
Clause 36 of the State Agreement is amended:
(a) in clause 36(b):
(i) by deleting the words "facsimile (to be immediately confirmed by postal or hand delivery) or";
(ii) by deleting the notice details for the Trustee and substituting the following:
"Burswood Nominees Ltd
C/‑ Crown Perth
Burswood WA 6100
Attention: Chief Executive Officer"; and
(iii) by deleting the notice details for the Manager and substituting the following:
"Burswood Resort (Management) Limited
C/‑ Crown Perth
Burswood WA 6100
Attention: Chief Executive Officer"; and
(b) in clause 36(c):
(i) by deleting "facsimile (to be immediately confirmed by postal or hand delivery) or";
(ii) by deleting the notice details for the Minister and substituting the following: