4Definitions

#### 4 Definitions 4 Definitions > > (1) In this Act— > > > > ABN 60 means the company registered under the Corporations Act immediately before the introduction day as ABN 60 Pty Limited (ACN 000 009 263) that was formerly called James Hardie Industries Limited, and includes any successor to or continuation of that company. > > > > ABN 60 Foundation means the company registered under the Corporations Act immediately before the introduction day as ABN 60 Foundation Limited (ACN 106 266 611), and includes any successor to or continuation of that company. > > > > Amaba means the company registered under the Corporations Act immediately before the introduction day as Amaba Pty Limited (ACN 000 387 342) that was formerly called Jsekarb Pty Limited, and includes any successor to or continuation of that company. > > > > Amaca means the company registered under the Corporations Act immediately before the introduction day as Amaca Pty Limited (ACN 000 035 512) that was formerly called James Hardie & Coy Pty Limited, and includes any successor to or continuation of that company. > > > > assent day means the day on which this Act received the Royal Assent. > > > > assets means any legal or equitable estate or interest (whether present or future, whether vested or contingent and whether personal or assignable) in real or personal property of any description (including money), and includes securities, choses in action and documents. > > > > authorised loan facility means a loan facility provided under a relevant loan facility agreement. > > > > claim means any claim, demand, action, cause of action or proceedings (whether based in tort, contract, under legislation or otherwise). > > > > claims processing expenses of a liable entity means any of the following incurred by the entity (whether before or during the winding up period for the entity as provided by Part 4) in connection with the management of claims made against the entity— > > > > > (a) expenses, charges or other costs for the provision of legal services to the entity, > > > > > (b) expenses, charges or other costs for the provision of expert evidence or for the provision of other professional advice to the entity, > > > > > (c) expenses, charges or other costs arising out of proceedings in a court or other tribunal or the use of any structured negotiation process for the settlement of claims (including mediation, conciliation or arbitration), > > > > but does not include any interest or legal costs payable by the entity to a claimant under a final judgment or binding settlement in respect of a proven personal asbestos claim or proven personal asbestos contribution claim. > > > > Compensation Foundation means the company registered under the Corporations Act immediately before the introduction day as the Medical Research and Compensation Foundation (ACN 095 924 137), and includes any successor to or continuation of that company. > > > > compensation funds means the following— > > > > > (a) the SPF, > > > > > (b) the discretionary fund. > > > > concurrent wrongdoer, in relation to a personal asbestos claim or other claim, means a person who is one of two or more persons whose acts or omissions (or act or omission) caused, independently of each other or jointly, the damage or loss that is the subject of the claim. > > > > contravene includes fail to comply with. > > > > Corporations Act means the [Corporations Act 2001](http://www.legislation.gov.au/) of the Commonwealth. > > > > Corporations legislation means the Corporations legislation to which Part 1.1A of the Corporations Act applies. > > > > damages includes any form of monetary compensation. > > > > discretionary fund means any discretionary trust fund— > > > > > (a) established in accordance with the SPF trust deed and the Final Funding Agreement with respect to any income derived from assets that form part of the SPF, and > > > > > (b) in respect of which the SPF trustee is also the trustee. > > > > exercise a function includes perform a duty. > > > > Final Funding Agreement means the deed entitled “A deed in respect of a Final Funding Agreement in respect of the provision of long term funding for compensation arrangements for certain victims of Asbestos-related diseases in Australia” that was entered into by the State, James Hardie Industries NV and LGTDD Pty Limited (ACN 116 110 948) on 1 December 2005, as in force from time to time. > > > > finalisation day, in relation to a liable entity, means the finalisation day in relation to the entity within the meaning of section 43. > > > > function includes a power, authority or duty. > > > > general law means the common law and equity. > > > > insurance proceeds right means any right of a person to the proceeds (or part of the proceeds) of a contract of insurance or re-insurance of a liable entity that is conferred by or under section 30. > > > > introduction day means the day on which the Bill for this Act was first introduced into Parliament. > > > > James Hardie Industries NV means the foreign company incorporated in the Netherlands registered under the Corporations Act immediately before the introduction day as James Hardie Industries NV (ARBN 097 829 895), and includes such successors to or continuations of that company, or other entities having obligations under the Final Funding Agreement, as may be prescribed by the regulations. > > > > legislation includes— > > > > > (a) any statute of a legislature (whether enacted or made in Australia or elsewhere), and > > > > > (b) any proclamation, regulation, rule, by-law, order or any other kind of subordinate legislation (however described) made under the authority of a statute (whether enacted or made in Australia or elsewhere). > > > > liable entity means each of the following— > > > > > (a) ABN 60, > > > > > (b) Amaba, > > > > > (c) Amaca. > > > > loan repayment, in relation to an authorised loan facility, means— > > > > > (a) the repayment of any part of the principal payable under the facility, or > > > > > (b) the payment of any interest (whether or not the interest is capitalised) payable under the facility, or > > > > > (c) the payment of any other amounts that are payable under, or in connection with, the facility. > > > > loan security expense of a liable entity means any amount that the entity is required to pay under, or in connection with, a relevant loan facility agreement. > > > > management of claims includes the handling, finalisation or payment of such claims. > > > > Member Register of a company means a register of members of the company kept under Chapter 2C of the Corporations Act. > > > > MRCF Investments means the company registered under the Corporations Act immediately before the introduction day as MRCF (Investments) Pty Limited (ACN 095 926 837), and includes any successor to or continuation of that company. > > > > operating expenses of a liable entity— > > > > > (a) means any expenses, charges or other costs (including taxes and duties), other than claims processing expenses, incurred by the entity in carrying on its business (whether before or during the winding up period for the entity as provided by Part 4), and > > > > > (a1) includes any loan security expenses of the entity, and > > > > > (b) includes any expenses, charges or other costs, other than claims processing expenses, incurred by the entity (including costs awarded against the entity) in connection with the making of an application to the Supreme Court under a provision of this Act. > > > > payable claimant of a liable entity means any person to whom the entity has incurred a payable liability. > > > > payable liability of a liable entity means a liability of the entity to pay any of following— > > > > > (a) a proven personal asbestos claim made against the entity in an Australian court or other Australian tribunal, but only to the extent that the exposure to asbestos or asbestos products to which the claim relates occurred wholly within the territorial limits of Australia, > > > > > (b) a proven personal asbestos contribution claim made against the entity in an Australian court or other Australian tribunal, but only to the extent that the exposure to asbestos or asbestos products to which the claim relates occurred wholly within the territorial limits of Australia, > > > > > (c) a pre-commencement claim against the entity, > > > > > (d) an operating expense of the entity, > > > > > (e) a claims processing expense of the entity, > > > > > (f) a claim for the payment of an insurance proceeds right that is declared to be a payable liability by regulations made for the purposes of section 30, > > > > > (g) an amount in respect of which the SPF trustee has a right to be indemnified by the entity under section 36 (2) (b), > > > > > (h) a statutory recovery claim against the entity. > > > > Note— > > > > Section 32 (2) of this Act provides that certain proven personal asbestos claims made against a liable entity may not be paid during its winding up period if the claimant has already received compensation for the personal injury or death to which the claim relates from a specified person. > > > > personal asbestos claim against a liable entity or concurrent wrongdoer means a claim by any of the following persons for damages (whether arising before, during or after the assent day) in respect of personal injury or death arising from exposure to any asbestos or asbestos products that were mined, manufactured, sold, distributed or used by or on behalf of the liable entity or concurrent wrongdoer (as the case may be)— > > > > > (a) the person who sustains the personal injury, > > > > > (b) the legal personal representative of a deceased person who sustained the injury or died as a result of the injury, > > > > > (c) a relative of a deceased person who sustained the injury or died as a result of the injury, > > > > and includes such a claim against a liable entity or concurrent wrongdoer pursuant to the joinder of the liable entity or concurrent wrongdoer as a party to proceedings. > > > > Note— > > > > Part 4 of the [James Hardie (Civil Liability) Act 2005](/view/html/inforce/current/act-2005-106) provides that Amaca is liable for certain personal asbestos claims against Marlew Mining Pty Limited in connection with its asbestos mining operations in Baryulgil. That Part also provides that the claims for which Amaca is liable are to be treated as personal asbestos claims against Amaca for the purposes of this Act. > > > > personal asbestos claimant means a person who has, or may at any time in the future have, a personal asbestos claim. > > > > personal asbestos contribution claim against a liable entity means any claim against the entity by a concurrent wrongdoer for contribution (whether arising before, during or after the assent day) in respect of a personal asbestos claim that has been made against the wrongdoer. > > > > power includes an authority. > > > > pre-commencement claim against a liable entity means any claim that was made or brought in legal proceedings commenced before 1 December 2005. > > > > proceeds of asset realisations of a liable entity includes the proceeds of a relevant insurance contract of the entity within the meaning of section 30. > > > > proven personal asbestos claim against a liable entity means a personal asbestos claim against the entity in respect of which— > > > > > (a) a final judgment has been entered by a court or other tribunal against the entity, or > > > > > (b) a binding settlement has been entered into by the entity, > > > > but only to the extent that the judgment or settlement gives rise to a liability of the entity (including any liability to pay damages, interest or legal costs to the claimant). > > > > Note— > > > > Part 4 of the [James Hardie (Civil Liability) Act 2005](/view/html/inforce/current/act-2005-106) provides that Amaca is liable for certain personal asbestos claims against Marlew Mining Pty Limited in connection with its asbestos mining operations in Baryulgil. That Part also provides that claims for which Amaca is liable and in respect of which final judgment has been entered or a binding settlement entered are to be treated as proven personal asbestos claims against Amaca for the purposes of this Act. > > > > Section 32 (2) of this Act provides that certain proven personal asbestos claims made against a liable entity may not be paid during its winding up period if the claimant has already received compensation for the personal injury or death to which the claim relates from a specified person. > > > > proven personal asbestos contribution claim against a liable entity means a personal asbestos contribution claim against the entity by a concurrent wrongdoer in respect of which— > > > > > (a) a final judgment has been entered by a court or other tribunal against the entity, or > > > > > (b) a binding settlement has been entered into by the entity, > > > > but only to the extent that the judgment or settlement gives rise to a liability of the entity (including any liability to pay damages, interest or legal costs to the claimant). > > > > Related Agreement means any agreement as in force from time to time that is entered into (whether before, during or after the assent day) as contemplated by the terms of the Final Funding Agreement. > > > > relevant loan facility agreement means any agreement that is authorised by section 30A, as in force from time to time. > > > > small claim—see section 4A. > > > > SPF means the trust fund established as referred to in section 8 or, if that trust fund is terminated, such other trust fund as may be prescribed by the regulations. > > > > SPF trust deed means the deed that established the SPF, as in force from time to time. > > > > SPF trustee means the person who is the trustee of the SPF from time to time. > > > > statutory recovery claim against a liable entity means any of the following claims— > > > > > (a) a claim against the entity under section 8E of the [Workers’ Compensation (Dust Diseases) Act 1942](/view/html/inforce/current/act-1942-014) for reimbursement of compensation paid or payable by the Workers’ Compensation (Dust Diseases) Board, > > > > > (b) any other claim against the entity for the payment of compensation, or the reimbursement of compensation paid, under a statute enacted in Australia in circumstances of a kind prescribed by the regulations. > > > > the State means the State of New South Wales. > > > > transfer of a share includes— > > > > > (a) an assignment (whether or not for consideration) of the share, and > > > > > (b) an assignment or transfer, or the creation, of any legal or beneficial interest (or both) in the share. > > > > winding up period for a liable entity—see section 20. > > > (2) In this Act, the following terms have the meanings given in section 9 of the Corporations Act— > > > > ACN > > > > ARBN > > > > ASIC > > > > books > > > > company > > > > constitution > > > > contributory > > > > director > > > > foreign company > > > > insolvent > > > > member > > > > negotiable instrument > > > > officer > > > > public document > > > > registered company auditor > > > > registered office > > > (3) In this Act, a reference to winding up of a liable entity includes a reference to any scheme of arrangement, receivership or other form of external administration of the liable entity (including, without limitation, the administration of a liable entity by the SPF trustee and the Minister under this Act). > > > (4) If this Act provides for an event or other thing to occur on a particular day, that event or thing is taken to occur at the beginning of that day. > > > (4A) Unless the context or subject-matter indicates or requires otherwise, a reference in this Act to the payment or discharge (whether in whole or in part) by the SPF trustee of a payable liability of a liable entity on the entity’s behalf or for its benefit is a reference to the payment or discharge of such a liability by the SPF trustee in its capacity as the trustee of the SPF or the discretionary fund or in both capacities (as the case may be). > > > (5) Notes included in this Act do not form part of this Act. > > **s 4:** Am 2006 No 108, Sch 1 \[2\]–\[4\]; 2009 No 116, Sch 1 \[1\] \[2\].