James Hardie Former Subsidiaries (Winding up and Administration) Regulation 2007

The Regulation relies on and operates through a small set of concepts, some fully defined in the instrument and others referenced to external instruments or agreements.

• Available annual funding. The phrase appears repeatedly in cl 4 as the quantum of funding set aside under the Final Funding Agreement for payment of statutory recovery claims by the SPF trustee in a given financial year (cl 4(1)). The Regulation does not define this term beyond that reference. Operationally the available annual funding is the finite resource to which the allocation and deferral rules apply.

• Final Funding Agreement and SPF trustee. Both terms are referenced in cl 4 as the source of available annual funding and the payor of statutory recovery claims. The Regulation assumes their existence and operation but does not set out their contents or legal effect. The clause links the distribution mechanics to the funding set aside under that agreement and to the trustee designated to apply it.

• Statutory recovery claim. The Regulation uses this phrase as the unit of payment. The clause attaches priority and allocation rules to statutory recovery claims against a liable entity, but it does not restate any statutory definition of that term; the reader must look to the Act for the Act’s definition and any limits on what constitutes a statutory recovery claim. Clause 4(1) explicitly ties the Regulation’s operation to section 32(3)(b) of the Act.

• Distribution period. Clause 4(2) defines the distribution period as the period of seven days before the end of the financial year concerned. This is the window in which, under the Regulation, the SPF trustee is to make payments from the available annual funding when the funding is insufficient.

• Existing claim and new claim. Clause 4(6) supplies specific definitions for the allocation rules: an existing claim is any statutory recovery claim made in a previous financial year that remains unpaid in whole or in part; a new claim is any statutory recovery claim made in the financial year concerned.

• Prioritisation and allocation formulas. Clause 4 sets out mechanically different allocation procedures for three factual matrices: (a) funding sufficient to pay all new claims but not all existing claims (cl 4(3)); (b) funding insufficient for all new claims and only one claimant exists (cl 4(4)); and (c) funding insufficient for all new claims and more than one claimant exists (cl 4(5)). The mechanics include sequence rules for which claims are paid in full, the allowance for a single partially-paid claim in certain contexts, and a proportional allocation between claimants by reference to the total value of new claims.

• Prescribed recipient and corporate continuation. Clause 5 prescribes the single recipient of remaining trust assets for the purpose of a specific clause in Schedule 1 of the Act, and clause 6 resolves a definitional question by prescribing one corporate entity as the continuation of another for the Act’s definition. Those are definitional or dispositive prescriptions rather than procedural mandates.

The Regulation is narrow in scope. Clause 4 operates conditionally when the available annual funding will not be sufficient in the financial year; clause 5 and clause 6 are prescriptive identifiers for discrete purposes in the Act. Several central terms crucial to implementation are located outside this instrument, notably elements of the Act, any Final Funding Agreement, and the SPF trustee’s documentation. The Regulation therefore functions as a set of mechanical, year-by-year rules placed into an existing contractual and statutory architecture.

Identify the parties and interests that the Regulation directly touches, as shown in the text.

• Claimants with statutory recovery claims. The primary group affected are individuals or entities holding statutory recovery claims against a liable entity whose claims are to be paid from the SPF trustee’s available annual funding. Clause 4 governs when and how those claimants receive payments from that funding in years when funding is insufficient (cl 4(1)-(5)). The Regulation distinguishes between claimants holding new claims in the financial year concerned and those holding existing claims from prior financial years (cl 4(6)).

• SPF trustee and Final Funding Agreement parties. The SPF trustee is the payor identified in cl 4 and is the actor constrained by the Regulation’s distribution protocol. The funding to be applied is that set aside under the Final Funding Agreement for payment of statutory recovery claims (cl 4(1)). Parties to the Final Funding Agreement therefore have an interest, because the available annual funding is the resource the regulation allocates.

• Liable entity. Statutory recovery claims are asserted against a liable entity; the regulation’s payment rules apply to claims “against a liable entity” (cl 4(1)). The identity and obligations of the liable entity remain governed by the Act and any associated documentation.

• Trust beneficiaries and trust administrators. Clause 5 prescribes that, for the purpose of clause 11(b) of Schedule 1 to the Act, the Asbestos Diseases Research Foundation (ACN 121 168 867) is the prescribed asbestos medical research provider and that 100 per cent of the balance of any trust assets is to be transferred to that provider (cl 5). Whoever administers the trust assets or is responsible for effecting transfers under the Act will need to apply that prescription.

• Corporations and registrars. Clause 6 prescribes James Hardie Industries SE, with the specified ARBN, as the continuation of James Hardie Industries NV for the purposes of the Act’s definition (s 4(1) of the Act) (cl 6). That prescription affects any provisions in the Act that depend on the definition of James Hardie Industries NV and will inform how corporate identity questions are resolved in the application of the Act.

• Regulators and courts. While the Regulation itself prescribes procedures and definitions, any enforcement, adjudication, or interpretation of disputes about whether payments were made in accordance with cl 4, or whether trust assets were transferred in accordance with cl 5, will involve courts or regulators applying the Act and this Regulation together. The Regulation has no separate penalty mechanisms, but it defines operational duties relevant to compliance disputes.

• Wider stakeholders. Although not named in the text, healthcare and research communities may be affected by cl 5 to the extent the Asbestos Diseases Research Foundation receives 100 per cent of residual trust assets under clause 11(b) of Schedule 1 to the Act. The Regulation prescribes that disposition and thereby determines the designated recipient.

In short, the Regulation governs the order and timing by which a trustee applies a specified pot of funding to statutory recovery claims; it prescribes a trust residual beneficiary; and it resolves a corporate identity issue. The actors who pay are the SPF trustee applying available annual funding from the Final Funding Agreement (cl 4(1)). The actors who decide application and allocation are the trustee, but subject to the formulaic rules in cl 4. Claimants’ rights to payment exist but are limited by the allocation and deferral mechanics set in the Regulation.

The Regulation imposes several specific duties and creates defined allocation rights for claimants, all of which are procedural and contingent on the circumstances described in clause 4.

Duties

• Trustee payment duty subject to clause 4. Where, for the purposes of s 32(3)(b) of the Act, the available annual funding set aside under the Final Funding Agreement is insufficient for the financial year, the SPF trustee is to make payments in accordance with the clause’s provisions (cl 4(1)). That duty is a duty to apply the available funding by following the procedure in the clause rather than a discretion to prioritise otherwise.

• Defer payments to the distribution period. Subject to the exceptions in cl 4(3)-(5), the trustee must defer payment of statutory recovery claims from the available annual funding until the distribution period, defined as seven days before the end of the financial year (cl 4(2)). The default operation is therefore a temporal deferral.

• Specific sequencing and partial-payment rules. The trustee must follow the sequencing rules in each factual posture:

  • If funding is sufficient to pay all new claims but not all existing claims, the trustee must pay all new claims in full during the distribution period in priority over existing claims; any remaining funding is to be applied to pay in full as many existing claims as possible, commencing with the earliest outstanding existing claim, then to pay in part one other existing claim with any remaining funding, with the rest deferred (cl 4(3)(a)-(c)).
  • If funding is insufficient for all new claims and there is only one claimant, the trustee is to apply funding during the distribution period to pay in full as many new claims as possible for that claimant, and to pay in part one other new claim with remaining funds, with outstanding new and all existing claims deferred until the next financial year in which payment is permitted (cl 4(4)(a)-(c)).
  • If funding is insufficient for all new claims and there is more than one claimant, the trustee must allocate the available annual funding between claimants by reference to each claimant’s total value of new claims as a proportion of the total value of new claims by all claimants (cl 4(5)(a)), and apply each claimant’s allocation to pay in full as many of that claimant’s new claims as possible and to pay in part one other new claim with any residual allocation, deferring the remainder (cl 4(5)(b)-(d)).

• Definitions duty. The trustee must treat claims as existing or new according to cl 4(6), which defines existing claim and new claim.

• Transfer duty for trust residual. For purposes of clause 11(b) of Schedule 1 to the Act, the Regulation prescribes that the Asbestos Diseases Research Foundation is the asbestos medical research provider and is to receive 100 per cent of any balance of trust assets (cl 5). The trustee or trust administrator responsible for effecting that transfer under the Act therefore must transfer the entire balance, where clause 11(b) of Schedule 1 to the Act requires such a transfer.

Rights and entitlements

• Claimant entitlement to allocation. Claimants have an entitlement to be paid from available annual funding according to the priority and allocation rules set out in cl 4. Where funding can cover all new claims but not all existing claims, new claims have a superior entitlement in that distribution period (cl 4(3)(a)). Where multiple claimants exist and funding is insufficient for all new claims, each claimant has an entitlement to a proportional allocation based on the total value of that claimant’s new claims (cl 4(5)(a)).

• Partial-payment limitation. The clause limits partial payment mechanics so that, in the scenarios provided, at most one other claim per cohort will be partially paid with any remaining funding after full payments of as many claims as possible. For existing claims, cl 4(3)(b)(ii) allows a single existing claim to be partially paid using remaining funds. For new claims under cl 4(4)-(5), a single other new claim for the claimant or claimant’s allocation may be partially paid.

• Deferment and future payment. A claimant whose claim is not fully paid during the distribution period has an entitlement only to deferment until the next financial year at which partial or full payment of the claim is permitted by or under the Act (cl 4(3)(c), cl 4(4)(b)-(c), cl 4(5)(c)-(d)). The Regulation thereby creates a procedural right to priority or allocation in the current year under specified regimes, and a deferral mechanism otherwise.

Other points

• The Regulation imposes no obligation on parties to expand or increase available annual funding; it only prescribes how the available annual funding is to be applied where it will not be sufficient in the relevant year (cl 4(1), note). If the available annual funding is sufficient to meet all existing and new claims during the financial year, clause 4 does not apply (cl 4(1) note).

• Clause 6 creates a definitional outcome for the Act, prescribing James Hardie Industries SE as the continuation of James Hardie Industries NV for the purpose of the Act’s s 4(1). That prescription affects who is treated as the corporate actor for any rights or duties in the Act tied to the definition.

All duties and rights in the Regulation are procedural; the Regulation does not, of itself, impose civil penalties or criminal sanctions within its text. The practical obligations fall primarily on the SPF trustee and any trust administrators fulfilling transfers under Schedule 1 of the Act.

The Regulation contains no express penalty provisions or specific enforcement mechanisms inside its four operative clauses. It sets procedure and prescription rather than criminal or civil penalty instruments.

• Absence of internal penalties. None of clauses 1-6 creates a civil penalty, an offence, a regulatory sanction, or an administrative fine. The Regulation prescribes how payments are to be sequenced and to whom a trust residue is to be transferred, but it does not specify consequences for non-compliance within its own text.

• Enforcement locus. Enforcement of the rules set out by the Regulation would arise through the Act and through the contractual and fiduciary obligations binding the SPF trustee and parties to the Final Funding Agreement. Clause 4 is expressly framed for the purposes of section 32(3)(b) of the Act (cl 4(1)), which suggests that obligations and remedies relating to s 32(3)(b) of the Act would be the primary enforcement mechanisms where a question arises about whether payments were made in accordance with the Regulation. The Regulation itself does not create a parallel enforcement regime.

• Trustee and contractual duties. The SPF trustee occupies the operational role required to apply the available annual funding in accordance with clause 4. If the SPF trustee fails to apply the funding as the Regulation prescribes, remedies will be contingent on the Act, the Final Funding Agreement, and any fiduciary duties applicable to the trustee. Those remedies are not specified here.

• Transfer obligation and compliance. Clause 5 prescribes a specific recipient and proportion (100 per cent) for the balance of any trust assets for the purpose of clause 11(b) of Schedule 1 to the Act. Failure to transfer the trust balance in accordance with that prescription would raise compliance issues under the Act and any relevant trust law duties; the Regulation does not itself set out enforcement steps.

• Role of external regulators and courts. Disputes about interpretation or compliance will be addressed under the Act, and by courts or tribunals that have jurisdiction over such disputes. The Regulation supplies procedural rules that those adjudicators will apply alongside the Act. The instrument contains no enforcement-specific powers or delegated-authority clauses.

• Practical consequence. Because the Regulation constrains the timing and order of payments by the trustee, the material enforcement risk is reputational, contractual, or fiduciary for the trustee and contractual parties if they fail to comply. The Act and the Final Funding Agreement will be the primary legal vehicles to seek performance, damages, or other remedies; this Regulation supplies the distribution rules to be applied when the specified funding insufficiency condition is met.

In sum, enforcement is derivative. The Regulation prescribes what must be done; the legal consequences of non-compliance are to be pursued under the Act, trust law, contract, and any relevant court or tribunal processes, not under penalty clauses contained within the Regulation itself.

The Regulation is a targeted instrument that expressly operates in the framework of the James Hardie Former Subsidiaries (Winding up and Administration) Act 2005 and interacts with corporate registration under the Corporations Act in one narrow respect. Its interaction with other laws is primarily dispositional and procedural.

• Relationship with the Act. Clause 3 expressly defines the shorthand the Act used throughout the Regulation. Clause 4 is expressly framed to operate for the purposes of section 32(3)(b) of the Act, applying only when the available annual funding set aside under the Final Funding Agreement will not be sufficient during the financial year (cl 4(1)). Clause 5 operates "for the purposes of clause 11(b) of Schedule 1 to the Act" to prescribe the asbestos medical research provider and the proportion of trust assets to be transferred (cl 5). Clause 6 prescribes an entity as a continuation of James Hardie Industries NV "for the purposes of the definition" in section 4(1) of the Act (cl 6). These cross-references mean that the Regulation supplies the detailed operational rules to be applied in particular provisions of the Act; the Act remains the primary statutory source of substantive rights and constraints.

• Dependence on external instruments and agreements. Clause 4 depends on the Final Funding Agreement and the SPF trustee. The Regulation treats the available annual funding and the trustee as operative facts. The Final Funding Agreement is likely a contract external to the Act and the Regulation; its terms will determine how funding is set aside and administered. The Regulation does not amend or displace the Final Funding Agreement but prescribes how available annual funding is to be applied under s 32(3)(b) of the Act when insufficient.

• Corporations Act reference. Clause 6 identifies James Hardie Industries SE as a Societas Europaea "registered as a foreign company under the Corporations Act" with the specified ARBN. That reference connects corporate registration under the Corporations Act to the interpretation of the Act’s definition and thereby affirms that corporate identity for the Act is to be resolved by treating the SE as the continuation of the NV. The Regulation does not change Corporations Act registration procedures; it uses the Corporations Act registration as a factual identifier.

• Trust law and Schedule 1 transfers. Clause 5 prescribes the recipient and proportion for the balance of trust assets under clause 11(b) of Schedule 1 to the Act. The actual mechanics of trust administration, the existence of trust instruments, and trust law obligations intersect with the Act’s Schedule 1 and the Regulation’s prescription. Those interactions will be governed by the Act, trust law principles, and any trust documentation.

• No conflict-resolution provisions. The Regulation contains no express clause resolving conflicts between its rules and other statutory provisions. Its operative language confines its application to specified purposes in the Act and to the factual condition of insufficient available annual funding. Therefore, in any event of perceived inconsistency, the Act would be the primary instrument to consider, and courts would interpret how the Regulation complements or supplements the Act.

• The Regulation is narrow and subordinate. It functions as subordinate legislation that supplies procedural detail for particular operations under the Act and for prescribed identifications in Schedule 1 and the Act’s defined terms. It does not set broader regulatory standards or create independent statutory regimes outside the Act’s structure.

Readers and implementers must therefore apply the Regulation in the context of the Act and relevant contractual and trust documentation, not as a standalone code. Where the Regulation defers to what is "permitted by or under the Act" for future payments (cl 4(3)(c), cl 4(4)(b)-(c), cl 4(5)(c)-(d)), the Act’s provisions will determine the permissibility and timing of deferred payments.

The Regulation contains internal notes that record the insertion and renumbering of certain clauses. The instrument’s text includes these editorial notes, which indicate later changes to clauses 4-6. The record in the Regulation itself is limited but precise.

• Commencement. The Regulation commenced on 8 February 2007 (cl 2). This is the date on which the instrument took legal effect.

• Clause 5 insertion and renumbering. The text records that cl 5 was previously cl 4 and was inserted by "2010 (97), cl 3" and later renumbered by "2012 (112), Sch 1" (see the end note to cl 5). The note reads: "cl 5 (previously cl 4): Ins 2010 (97), cl 3. Renumbered 2012 (112), Sch 1." That indicates a 2010 insertion and a 2012 renumbering.

• Clause 4 insertion. The end note to clause 4 states: "cl 4: Ins 2012 (112), Sch 1." That records that the extensive payment-priority clause was inserted in 2012, under the instrument or amendment number 2012 (112), Schedule 1.

• Clause 6 renumbering. The end note to clause 6 states: "cl 6 (previously cl 5): Renumbered 2012 (112), Sch 1." That shows clause 6 was previously clause 5 and renumbered in 2012.

• Pre-existing clauses and renumbering. Taken together, those notes show that the Regulation as originally made in 2007 has been the subject of at least the amendments recorded by the insertion in 2010 and the renumbering and additional insertion activity recorded in 2012. The printed notes specify instruments and clause numbers for those changes but do not reproduce the amending instruments themselves.

• No other amendments recorded in this text. The Regulation as supplied contains only those insertion and renumbering notes. It does not record any further amendments, repeals, or subsequent alterations beyond the 2010 insertion and the 2012 insertion/renumbering notes shown.

• Implication for interpretation. Clause numbering changes and insertions mean that the current clause references and the endnotes should be used to trace the history. The Regulation’s internal notes provide a minimal but direct trail to the amendment dates and instrument identifiers shown in the schedule references. Any practitioner seeking the full amendment instruments or the legislative history will need to consult the statutory instruments register entries identified in those notes for the complete amendment texts and dates.

This is the amendment history as recorded within the Regulation itself. No case law or further legislative amendment history is provided in the instrument text supplied.

The Regulation text supplied contains no citations to litigation, no references to cases, and no recorded judicial consideration. The instrument does not name any court decisions or administrative determinations. The Regulation’s endnotes record insertion and renumbering events but do not identify any judicial review or litigation connected to those amendments.

Practically, because the Regulation creates procedural rules that constrain trustee behaviour and prescribes a recipient for trust residuals, those points are susceptible to dispute in appropriate forums. However, the text provides no litigation history, no decisions, and no examples of courtroom construction. Any search for litigation would therefore need to be conducted outside this instrument by consulting court databases, party records, or the Act’s litigation history. The Regulation itself does not supply such material.

Accordingly, for the purposes of legal research based solely on the instrument before you, there is no litigation history to summarise or cite.

The Regulation contains several drafting features and operational constraints that create interpretive questions and practical risks. These are matters of mechanics rather than assessment of policy intent; they may affect cashflow, timing, computation, and administrative burden.

• Narrow distribution window. Clause 4(2) requires, subject to the exceptions, that payment from available annual funding be deferred until the distribution period, defined as the seven days before the end of the financial year. That creates a single, tight operational window for the trustee to make payment decisions and disburse funds. Administrative systems and bank processing times must align with that window, or payments may be effectively delayed until the next financial year under the deferral rules. The Regulation does not permit payments from that funding outside the distribution period when the clause applies.

• Conditional operation. Clause 4 applies only where the available annual funding will not be sufficient to cover payment of all such claims during the financial year (cl 4(1)). If available annual funding is sufficient to meet all existing and new claims during the financial year, clause 4 does not apply. Determining sufficiency in advance may involve forecasts and judgment. The Regulation does not specify the timing or standard for that sufficiency determination, which could create disputes over whether clause 4 ought to have applied.

• Priority of new claims over existing claims. Where funding is sufficient for all new claims but not for existing claims, cl 4(3) elevates new claims to priority status during the distribution period. This is a clear prioritisation that may surprise claimants holding older claims who expect priority by seniority. The clause then directs remaining funds to existing claims beginning with the earliest unpaid existing claim. That sequencing rule (earliest existing claim first) requires a chronological ledger of existing claims and raises questions about how to treat simultaneous filing times or contested claim dating.

• Proportional allocation method requires valuation. When funding is insufficient to pay all new claims and there is more than one claimant, cl 4(5)(a) requires allocation between claimants by reference to "the value in total of new claims made by the claimant as a proportion of the value in total of new claims made by all claimants". This requires numerically aggregating claim values. The Regulation does not prescribe whether "value" means the amount claimed, an assessed quantum, or some other metric. That omission invites disputes over valuation methodology and timing of valuation.

• Single partially-paid claim rule. In multiple scenarios the Regulation permits only a single partially-paid claim after full payments of as many claims as possible (see cl 4(3)(b)(ii), cl 4(4)(a)(ii), cl 4(5)(b)(ii)). This introduces a mechanical limit that may create winners and losers among claimants whose claims are marginally larger than the funds remaining after full payments. The clause does not provide guidance on selecting which claim receives the partial payment beyond the sequencing rules and proportional allocation.

• One claimant versus multiple claimants distinction. Clause 4(4) treats the case of a single claimant differently to cl 4(5) that treats multiple claimants. The instrument does not define "claimant" beyond ordinary meaning. In practice, the identity of the claimant population (for example, whether multiple persons represented by the same legal representative count as multiple claimants) could affect which regime applies. The Regulation does not give tie-breakers or aggregation rules.

• Dependency on Act for deferred payment permissibility. When payments are deferred under cl 4(3)(c), cl 4(4)(b)-(c), and cl 4(5)(c)-(d), the clause defers until "the next financial year at which partial or full payment of the claim is permitted by or under the Act". That phrase anchors future payment permissibility to the Act. If the Act imposes conditions or limits on when payments can be made, those limits will control deferred payments. The Regulation relies on that external permission but does not detail the circumstances in which the Act would permit payments, leaving practitioners dependent on the Act and related instruments for the timetable.

• Administrative recordkeeping and disputes. The operational rules will require trustees to maintain clear records of which claims are new or existing, claim dates, claim values, the identity of claimants, and computation of proportional allocations. The clause’s mechanical sequencing will increase administrative burden and create fertile ground for disputes over dates, valuations, and the proper ordering of payments.

• Prescribed recipient as an absolute instruction for clause 11(b). Clause 5 prescribes the Asbestos Diseases Research Foundation (ACN 121 168 867) as the asbestos medical research provider and 100 per cent of any trust balance to be transferred to it for the purposes of clause 11(b) of Schedule 1 to the Act. The prescription is absolute in the Regulation’s terms for that statutory purpose. Implementers must therefore not seek to divide the balance unless clause 11(b) of Schedule 1 to the Act or other law expressly allows otherwise.

• Corporate identity resolution. Clause 6 prescribes James Hardie Industries SE as a continuation of James Hardie Industries NV for the purposes of the Act’s definition. That is a statutory construct with implications for rights, obligations, and recognition in the Act. Practitioners must map corporate records and any contractual references accordingly.

These are interpretive and implementation "gotchas" that arise from the Regulation’s textual choices. They are concrete operational points that trustees, claimants, and administrators should consider when applying the Regulation.

Compliance under this Regulation requires procedure, recordkeeping, and alignment with the Act and the Final Funding Agreement. The following steps flow strictly from the Regulation’s text and the duties it imposes.

1. Confirm applicability at the start of the financial year.

   • Determine whether, for the purposes of s 32(3)(b) of the Act, the available annual funding set aside under the Final Funding Agreement for payment of statutory recovery claims by the SPF trustee in the financial year will be sufficient to cover the payment of all such claims (cl 4(1) note). If sufficiency exists, clause 4 does not apply. Document the sufficiency determination and the assumptions underlying it, because the Regulation’s application depends on that factual finding.

2. Prepare for distribution-period processing.

   • If clause 4 applies because available annual funding will not be sufficient, prepare to defer payment processing until the distribution period, which is defined as the period of seven days before the end of the financial year (cl 4(2)). Ensure banking, payment authorisations, and trustee decision meetings can occur in that week. Maintain contemporaneous records of the date and time of transfers.

3. Classify claims as existing or new.

   • For each statutory recovery claim against the liable entity, determine whether it is a new claim (made in the financial year concerned) or an existing claim (made in a previous financial year and unpaid, whether wholly or partly) as per cl 4(6). Record claim dates and payment status.

4. Compute sequencing and allocations according to the clauses.

   • If funding is sufficient to pay all new claims but not existing claims, apply cl 4(3): pay all new claims in full during the distribution period in priority over existing claims; with any remaining funding pay in full as many existing claims as possible starting with the earliest unpaid existing claim, and then pay in part one other existing claim with any residual funds (cl 4(3)(a)-(b)). Defer any remaining unpaid existing claims until the next financial year permitted by or under the Act (cl 4(3)(c)).
   • If funding is insufficient for all new claims and there is only one claimant, apply cl 4(4): use the entire available annual funding to pay in full as many of that claimant’s new claims as possible, then pay in part one other new claim with any remaining funding, and defer the balance of new claims and any existing claims to the next financial year when permitted by or under the Act (cl 4(4)(a)-(c)).
   • If funding is insufficient for all new claims and there is more than one claimant, apply cl 4(5): compute each claimant’s allocation by reference to the claimant’s total value of new claims as a proportion of the total value of all new claims (cl 4(5)(a)). Apply each claimant’s allocation to pay in full as many of that claimant’s new claims as possible and pay in part one other new claim with any remaining funds; defer outstanding new and existing claims until the next financial year when permitted (cl 4(5)(b)-(d)).

5. Define valuation methodology in advance.

   • Because cl 4(5)(a) requires allocation by reference to the "value in total of new claims", adopt and document a valuation methodology for new claims in advance of the distribution period. The Regulation does not prescribe whether value is the claimed amount or an assessed amount, so select a defensible and transparent method consistent with the Final Funding Agreement and the Act. Ensure this methodology is recorded and communicated to relevant parties where appropriate to reduce disputes.

6. Maintain an auditable chronological ledger.

   • For existing claims, the Regulation requires paying in full as many existing claims as possible commencing with the earliest existing claim the payment of which remains outstanding (cl 4(3)(b)(i)). Maintain an auditable ledger of filing dates, service dates, and any determinations that establish the "earliest" outstanding claim. Decide and document how to treat simultaneous or disputed dates.

7. Limit partial payments to single claims as required.

   • The clause permits, in each applicable scenario, paying in part only one other claim after full payments of as many claims as possible (cl 4(3)(b)(ii), cl 4(4)(a)(ii), cl 4(5)(b)(ii)). Implement a policy for selecting which claim receives the partial payment where multiple claims might qualify, based on chronology, claimant need, or other transparent criteria consistent with the clause.

8. Coordinate with the Final Funding Agreement and the Act.

   • Ensure all actions are consistent with the Final Funding Agreement’s provisions on funding availability and the Act’s provisions governing when payments are "permitted by or under the Act" for deferred payments (see cl 4(3)(c), cl 4(4)(b)-(c), cl 4(5)(c)-(d)). Obtain legal advice where the Act’s text is unclear about the permissibility timetable for deferred payments.

9. Effect transfers of trust balances as prescribed.

   • For dispositions under clause 11(b) of Schedule 1 to the Act, comply with cl 5 by transferring 100 per cent of the balance of any trust assets to the Asbestos Diseases Research Foundation (ACN 121 168 867) when the Act requires such a transfer. Maintain documentary proof of transfer and the authority under Schedule 1 to make the transfer.

10. Treat corporate identity in accordance with cl 6.

    • For any provision in the Act that depends on the definition of James Hardie Industries NV, treat James Hardie Industries SE (the named Societas Europaea with ARBN 097 829 895 and registered as a foreign company under the Corporations Act) as the continuation of James Hardie Industries NV (cl 6). Update internal registers and correspondence to reflect that definitional treatment where the Act’s provisions apply.

11. Record decisions and be transparent.

    • Because the Regulation’s application will likely lead to disputes, keep contemporaneous minutes of trustee meetings, valuations, allocations, and the rationale for sufficiency determinations. Produce documentation that shows adherence to the clause’s mechanical rules in the distribution period.

12. Seek legal advice for interpretive questions.

    • The Regulation leaves several practical questions open (for example, treatment of claim valuation, definition of claimant population, sequencing of identical-date claims). Seek legal advice if such interpretive issues arise to reduce the risk of later litigation. Remember the Regulation does not itself prescribe enforcement remedies; compliance is enforced through the Act, trust law, and contract.

Following these steps will align trustee conduct with the Regulation’s mandatory sequencing and prescription for trust residual transfers.