32Kinds of claims that are payable

#### 32 Kinds of claims that are payable 32 Kinds of claims that are payable > > (1) During the winding up period for a liable entity, only payable liabilities of the entity (other than a liability to pay a claim that is excluded by subsections (2) and (3)) may be paid (whether by the entity itself or by the SPF trustee on the entity’s behalf or for its benefit). > > > (2) Despite any other provision of this Part or any other legislation or other law, a proven personal asbestos claim against a liable entity may not be paid (whether by the entity itself or by the SPF trustee on the entity’s behalf or for its benefit) during the winding up period for the entity if— > > > > > (a) the claimant has already been paid compensation (whether on the basis of a cause of action arising at general law, under the Corporations Act or any other legislation) in respect of the same personal injury or death that is the subject of the claim, and > > > > > (b) the compensation was paid by any of the following— > > > > > > > (i) another liable entity, > > > > > > > (ii) James Hardie Industries NV or any of its controlled entities, > > > > > > > (iii) any person whose liability to pay the compensation arose from the person acting in the capacity of a director or other officer, employee, advisor or agent of a liable entity, James Hardie Industries NV or any of its controlled entities, > > > > > > > (iv) any other person who has recovered the amount paid in compensation from an entity or person referred to in subparagraph (i), (ii) or (iii) pursuant to a legal entitlement to do so (whether at general law, under legislation or otherwise), and > > > > > (c) the compensation paid to the claimant was paid pursuant to a final judgment entered by a court or other tribunal, or a binding settlement entered by a person or entity referred to in paragraph (b), in circumstances where the compensation was intended to compensate the claimant fully and finally for the personal injury or death concerned. > > > (3) Despite any other provision of this Part or any other legislation or other law, statutory recovery claims against a liable entity may only be paid (whether by the entity itself or by the SPF trustee on the entity’s behalf or for its benefit) during the winding up period for the entity— > > > > > (a) if the funding set aside under the Final Funding Agreement for the payment of such claims by the SPF trustee during a financial year (within the meaning of the Agreement) is or will be sufficient to cover all claims (whether actual or anticipated) within the year concerned, or > > > > > (b) if such funding will not be sufficient for the financial year concerned, in accordance with the regulations. > > > (4) For the purposes of (but without limiting) subsection (3) (b), the regulations may make provision for or with respect to the following— > > > > > (a) the deferral of payments of statutory recovery claims (whether in whole or in part), > > > > > (b) the part payment of statutory recovery claims (whether in whole or in part), > > > > > (c) any other matter concerning the rationing of payments of statutory recovery claims. > > > (5) The Minister is not to recommend the making of a regulation for the purposes of subsection (3) (b) or (4) unless the Minister has received the written concurrence of the SPF trustee to the making of the regulation. > > > (6) In this section— > > > > controlled entity of James Hardie Industries NV means a person or other entity (other than a liable entity or the SPF trustee) that James Hardie Industries NV is required to include in its consolidated financial reports for a financial year by the US GAAP or such other generally accepted accounting principles as may be prescribed by the regulations. > > > > Note— > > > > It is intended that the prescription by the regulations of other generally accepted accounting principles for the purposes of this definition will be consistent with the terms of the Final Funding Agreement. > > > > US GAAP means the Generally Accepted Accounting Principles in force from time to time in the United States of America, as developed by the Financial Accounting Standards Board for the United States. > > **s 32:** Am 2006 No 108, Sch 1 \[12\].