Schedule 5Industry Deed

# Schedule 5 Industry Deed Schedule 5 Industry Deed (Section 3A) THIS DEED is made the day of 1989. | BETWEEN: | The HONOURABLE JOHN ROBERT ARTHUR DOWD, the Attorney General of the State of New South Wales for and on behalf of HER MAJESTY QUEEN ELIZABETH THE SECOND IN RIGHT OF THE STATE OF NEW SOUTH WALES (the “Crown”) of the first part; | | AND: | THE MOTOR ACCIDENTS AUTHORITY OF NEW SOUTH WALES a corporation constituted by the Motor Accidents Act 1988 (the “Authority”) of the second part; | | AND: | The Persons specified in Schedule 1 and all other persons who agree to become parties to this Deed in accordance with its terms (the “Insurance Parties”) of the third part. | > RECITALS > > > A. > > > > The [Motor Accidents Act 1988](/view/html/inforce/current/act-1988-102) (the “1988 Act”) relates to the recovery of damages, and compulsory insurance against liability, for the death of or injury to persons as a consequence of motor accidents and to other matters. > > > B. > > > > The Insurance Parties have applied to the Authority for licences under the 1988 Act. > > > C. > > > > The Crown and the Authority have agreed to exercise their powers and authority under the 1988 Act, in the manner set out in this Deed and the parties have agreed on various matters relating to the licences, the conduct of compulsory third-party insurance business in New South Wales and other matters arising under the Act in the terms set out in this Deed. NOW THIS DEED WITNESSES: 1. DEFINITIONS AND INTERPRETATION 1.1 Definitions In this Deed, unless the contrary intention appears: “Act” means the [Motor Accidents Act 1988](/view/html/inforce/current/act-1988-102), and includes any regulations, orders or proclamations made under it; “accession deed” means the accession deed referred to in clause 2; “accident year” means, in relation to a claim, the year commencing 1 July and ending on the next 30 June in which the motor accident giving rise to the claim occurred; “arbitrator” means a consulting actuary who is a Fellow of The Institute of Actuaries of Australia appointed by the President for the time being of The Institute of Actuaries of Australia; “business day” means a day upon which banks or a majority of them are open for normal business in Sydney and for this purpose a bank is a trading bank as defined in subsection 5 (1) of the [Banking Act 1959](http://www.legislation.gov.au/); “claim” means a claim for damages in respect of the death of, or injury to, a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the motor vehicle; “claimant” means a person who makes, or is entitled to make, a claim; “claim cost” means the amount paid by an insurer or the Nominal Defendant to or on behalf of a claimant in relation to a claim or the legal costs (including disbursements) of the claimant relating to the claim as the result of the final settlement or verdict in relation to a claim; “Deed” means this Deed as amended from time to time together with any accession deed executed in accordance with clause 2; “deregulation date” means 1 July 1991; “facility agreement” means an agreement under which insurers will provide a financial facility to the New South Wales Treasury Corporation for the purpose of funding the TAC Fund; “insurer” means a licensed insurer or a suspended insurer; “licence” means a licence under Division 1 of Part 8 of the Act; “licensed insurer”: > (i) means a person who holds a licence which is in force and has not been suspended; and > (ii) for the period up to 1 July 1989 includes each of the Insurance Parties; “Minister” means the Minister of the Crown for the time being administering the Act or the relevant part of the Act; “sharing agreement” means the agreement to share the cost of claims set forth in clause 5 of this Deed; “suspended insurer” means a licensed insurer whose licence has been suspended under section 106B of the Act. 1.2 Further Definitions In this Deed, unless the contrary intention appears, words defined in subsection 3 (1) of the Act which are not defined in subclause 1.1 shall have the same meaning in this Deed as they do in the Act. 1.3 Interpretation In this Deed: > (a) words importing one gender shall include the other gender; > (b) words importing the singular shall include the plural and vice versa; > (c) a reference to a clause shall be a reference to all of its subclauses, and a reference to a subclause shall be a reference to all its sub-subclauses unless the contrary intention appears; > (d) headings and underlinings are for reference only and have no effect on the construction, interpretation or meaning of the clauses; > (e) the Schedules referred to in this Deed form part of and are subject to the terms of this Deed; > (f) where the last day of any period prescribed or allowed by this Deed for the doing of anything falls on a day that is not a business day, the thing may be done on the first business day following that day; > (g) all sums of money and all payments made under this Deed shall be in Australian dollars. 1.4 Operative Date This Deed shall commence on the date it is executed by the Crown, the Authority and an Insurance Party. 1.5 Ceasing to be a Party—Licence Applicants Any of the Insurance Parties or any person who executes an accession deed shall cease to be a party to this Deed if: > (a) that person fails to apply for a licence within 3 months of becoming a party; or > (b) that person is not granted a licence within 6 months of becoming a party. 1.6 Ceasing to be a Party—Insurers An insurer shall cease to be a party to this Deed on the date the licence of that insurer is cancelled under the Act by the Authority. 2. ACCESSION 2.1 Execution of Deed of Accession A person who intends to become a licensed insurer may become a party to this Deed by executing an accession deed in the form of Schedule 2 or in such other form as the parties may approve. 2.2 Date of Accession An accession deed shall operate from the date of its execution or such other date specified in the accession deed being a date approved by the parties and not later than the date on which the person executing the accession deed becomes a licensed insurer. 2.3 No Other Consent Necessary The consent or agreement of any other party is not required for a person executing an accession deed to become a party to this Deed. 3. ACTING AS AGENT OF NOMINAL DEFENDANT 3.1 General Principle of Allocation Subject to subclauses 3.2 and 3.3, as the Nominal Defendant receives notice of claims against the Nominal Defendant, it shall randomly allocate those claims to licensed insurers in proportion to the market share of insurers for the accident year of the claim or if the market share for the accident year of the claim has not been determined then in accordance with the Nominal Defendant’s estimate of market share of insurers in that accident year based on the last determination of market share by the Authority. 3.2 Conflicts of Interest Subject to subclause 3.3, the Nominal Defendant shall not allocate a claim under subclause 3.1 involving an unidentified motor vehicle to a licensed insurer if the licensed insurer is or is likely to receive a claim relating to the same motor accident as the motor accident out of which the claim against the Nominal Defendant arises. 3.3 All Licensed Insurers have a Conflict If all licensed insurers receive or are likely to receive a claim relating to the same motor accident as a claim against the Nominal Defendant in respect of an unidentified motor vehicle then the Nominal Defendant shall allocate the claim involving the unidentified motor vehicle to which clause 3.2 applies to a licensed insurer who pursuant to the sharing agreement is not or is not likely to be an insurer handling claims arising from that motor accident. 3.4 Duty to Notify Nominal Defendant of Other Claims If an insurer is or has been allocated a claim by the Nominal Defendant involving an unidentified motor vehicle and that insurer has or is likely to receive a claim arising out of the same motor accident as the claim against the Nominal Defendant, then it shall promptly advise the Nominal Defendant of that fact. 3.5 Re-allocation of Nominal Defendant Claims The Nominal Defendant may re-allocate any claims previously allocated to an insurer: > (a) whose licence is suspended, cancelled or assigned; or > (b) where the claim relates to an unidentified motor vehicle, if the insurer handling the claim receives another claim in respect of the same motor accident. 3.6 No Refusal of Allocation A licensed insurer shall not refuse the allocation of a claim to it under this clause unless permitted or required to do so by subclause 3.2. 3.7 Insurers to Meet Nominal Defendant’s Claims Each insurer shall meet and pay any claim against the Nominal Defendant allocated to it under this clause in accordance with the provisions of this clause and the provisions of the sharing agreement. 3.8 Claims Handling Cost Each insurer who handles a claim against the Nominal Defendant which has been allocated to it is not entitled to recover any amount incurred or paid by it in handling the claim other than the claim cost but the insurer may retain any legal or other costs recovered from the claimant in relation to the claim. 3.9 Claims Adjustment Between Insurers After the application of the sharing agreement, the insurers shall share the claim cost of all claims against the Nominal Defendant which arose in an accident year in proportion to the market share of the insurers in that accident year. 3.10 Settlement of Claims Insurers will notify the claim costs in relation to the Nominal Defendant claims and recoveries handled by them in the same manner as is provided in subclauses 5.15, 5.16 and 5.17 and shall provide such details and supporting information as is required by the clearing house established under those subclauses. 3.11 Recovery Actions An insurer who brings a recovery, action under section 31 of the Act shall do so at its own cost but, if it makes any recovery, seventy five per cent of the claim cost recovered shall be credited against the amount sought to be recovered by it under subclause 3.8 in respect of the relevant accident year in which the claim arose. 3.12 Termination of Liability to Meet Nominal Defendant Claims If all licensed insurers agree, they may give not less than 12 months’ notice to the Authority that they do not intend to meet and pay claims in accordance with subclause 3.7 and in relation to all motor accidents occurring after the expiry date of that notice the insurers shall cease to be bound by the provisions of subclauses 3.1, 3.8, 3.9 and 3.10 of this Deed. 4. OBLIGATIONS OF AUTHORITY 4.1 Allocation of Policies At the request and cost of the insurers, the Authority shall, pursuant to the agreement under section 13 of the Act, arrange for the audit of the method of allocating policies and the Authority shall make such adjustments to the allocation of policies as may be recommended by the auditors and agreed by the insurers. 4.2 Agreement with Roads and Traffic Authority The Authority shall not enter any agreement with the Roads and Traffic Authority under section 13 of the Act which provides that the aggregate commission received by the Roads and Traffic Authority shall be greater than 1.5 per cent of the insurance premiums collected by the Roads and Traffic Authority or that the frequency of payments to insurers shall be less than weekly. 5. SHARING AGREEMENT 5.1 Interpretation In this clause, unless the contrary intention appears: > (a) “collision” means the physical contact of: > > > (i) one motor vehicle with another or other motor vehicles; > > > (ii) a person or thing in or on one motor vehicle with another motor vehicle or other motor vehicles; > > > (iii) a person or thing in or on one motor vehicle with the passengers or goods in or on another motor vehicle or other motor vehicles; > > > (iv) one motor vehicle and another motor vehicle or other motor vehicles and a pedestrian; or > > > (v) a pedestrian with one motor vehicle or other motor vehicles notwithstanding that there has been no contact between the motor vehicles, > > and includes consecutive contacts between the same where collisions, although not contemporaneous, are so closely related in time as to constitute one event or occurrence; > (b) a reference to an insurer includes a reference to the Authority in its capacity as the Nominal Defendant or an insurer appointed as the agent of the Nominal Defendant in respect of any claim against the Nominal Defendant but does not include a reference to the Authority in that capacity or its agent in respect of a claim brought under section 28 of the Act in relation to an unidentified motor vehicle; > (c) where one motor vehicle is being towed by another motor vehicle or is attached to another motor vehicle for towing, then if one of those motor vehicles is involved in a collision both motor vehicles shall be deemed to be involved in the collision. 5.2 Sharing If in respect of a claim the owner or driver of more than one motor vehicle has caused or contributed to the claim, then each insurer of any motor vehicle that has caused or contributed to the claim shall share the claim cost in accordance with this clause. 5.3 Deemed Sharing if Motor Vehicle Involved in a Collision The owner or driver of a motor vehicle shall be deemed to have caused or contributed to a claim if that motor vehicle is involved in the collision out of which the claim arises. 5.4 Deemed Sharing if so Determined by Referee If a motor vehicle is not involved in the collision out of which the claim arises, then the owner or driver of that motor vehicle shall be deemed to have caused or contributed to the claim if the insurer of that motor vehicle agrees or on application by any other insurer the referee determines that the owner or driver of that motor vehicle caused or contributed to the claim. 5.5 Claim by Driver If the claim is made by the driver of a motor vehicle, the insurers sharing the claim cost under this clause shall not include the insurer of that motor vehicle or any motor vehicle towed by or attached to the motor vehicle driven by that person unless the owner of that motor vehicle or the motor vehicle towed by or attached to the motor vehicle driven by that person has caused or contributed to the claim of the driver and in relation to which the owner is indemnified by the insurer of that motor vehicle or the motor vehicle towed by or attached to the motor vehicle driven by that person. 5.6 Method of Sharing An insurer who is liable to share the claim cost of a claim under this clause shall share that claim cost in the proportion that the number of motor vehicles insured by that insurer which are liable to share the claim cost bears to the total number of motor vehicles insured by all insurers who are liable to share the claim cost. 5.7 Other Arrangements Subclause 5.6 is not to be read so as to prohibit the insurers sharing a particular claim from agreeing as between themselves to share that claim in a different proportion from that provided in subclause 5.6. 5.8 Disputes If there is any dispute or difference as to any matter arising under this clause, that dispute or difference may be referred to the referee and after considering the dispute or difference the referee may give a direction to the parties to the dispute or difference and that direction shall be final and binding upon all parties to the dispute or difference. 5.9 Referee The referee under this clause shall be a person or one of a panel of persons approved by the insurers for that purpose and in determining a dispute or difference under this clause the referee shall act as the referee sees fit with a view to expeditiously and with as little formality as possible resolving the dispute or difference. 5.10 Costs of the Referee The costs of the referee shall be borne by the parties to the dispute in such proportion as the referee determines. 5.11 Insurers to Co-operate Each of the insurers shall co-operate in the handling and settlement of all claims to which this clause applies and shall provide to any other insurer who is or is likely to share the claim cost information in respect of the claim or to the referee all information required by the referee in relation to a matter referred to the referee. 5.12 Conduct of Claim Unless otherwise agreed by the insurers sharing a claim, the insurer of the motor vehicle sharing the claim cost of a claim which principally caused or contributed to the claim or a series of claims shall handle that claim or those series of claims for and on behalf of each other insurer and the insurer handling the claim shall be authorised to settle and compromise that claim or series of claims and otherwise deal with the claims or series of claims as it sees fit. 5.13 Determination of Principal Responsibility As between the insurers liable to share a claim under this clause, the determination of which insurer is principally responsible shall be made as early as possible by reference to the police reports relating to the event giving rise to the claim and statements of witnesses which may be available but if there is any dispute or difference, that dispute or difference shall be resolved by the referee pursuant to subclause 5.8. 5.14 Notification to Other Insurers Where an insurer becomes aware that a claim may be subject to the sharing agreement it shall notify the other insurers who it believes are liable to share the claim cost as soon as it becomes aware of those facts and it shall provide to those insurers reasonable particulars of the claim. 5.15 Insurers to Establish a Clearing House The insurers shall establish a claims settlement arrangement which shall operate as a clearing house and maintain records and accounts in relation to each insurer in relation to claims shared under this clause and under clauses 3 and 8 and after receiving the periodic reports of each insurer under subclause 5.16 the clearing house shall promptly notify each insurer of the net amounts owed to or payable by it and those insurers obliged to make payments shall immediately pay those amounts to the clearing house and the clearing house shall after receipt of those payments remit amounts owed to insurers. 5.16 Claims to be Notified and Paid In relation to claims shared under this clause and clauses 3 and 8, insurers shall notify to the clearing house within 14 days at the end of each six month period ending in December and June or at such other times as the insurers may agree the amount of claim costs incurred by them in that period and the details and supporting information of the claims to which they relate in the form required by the clearing house. 5.17 Special Claims Notwithstanding the provisions in subclauses 5.15 and 5.16: > (a) if an insurer incurs or becomes liable to incur a claim cost in relation to any one claim of an amount greater than $500,000, then it may immediately notify that to the clearing house and advise the proportion payable by other insurers and the clearing house will immediately advise each of the other insurers of the amount payable by them and those insurers shall immediately pay that amount to the insurer paying the claim cost; or > (b) notwithstanding that a claim has not been settled or determined by a court, if an insurer has paid in respect of any one claim an amount greater than $50,000 pursuant to section 45 of the Act, then the insurer may include that amount (being an amount greater than $50,000) in its claim costs notified under subclause 5.16 in a particular period. 5.18 Variation If the licensed insurers agree, they may vary the terms of the sharing agreement with the approval of the Authority which approval shall not be unreasonably withheld. 6. BULK BILLING 6.1 Insurers to be Party to any Bulk Billing Agreement If the licensed insurers agree to enter into a bulk billing agreement then unless that agreement has expired or has been terminated any person who is granted a licence and becomes a party to this Deed shall thereby be deemed to be a party to the bulk billing agreement on and from the date the licence is granted to that person and that person shall execute a counterpart of the bulk billing agreement or do such other act or thing that may be necessary or convenient to give effect to this clause. 6.2 Crown not to enter Separate Agreements with Insurers During any period in which an agreement under this clause operates the Crown shall ensure that the Minister for Health does not enter into any separate agreement with any insurer in relation to the matters the subject of that agreement. 7. OTHER OBLIGATIONS OF INSURERS 7.1 Insurers to Enter into Facility Agreement If at the time at which a corporation becomes an insurer there is a facility agreement in force, the insurer shall enter into the facility agreement and perform the obligations of that agreement. 7.2 Exchange Information An insurer shall provide to any other insurer on request any information in respect of a claim in which the insurers have a mutual interest or where the claimants are in any way related to each other or other parties involved in the claims. 8. DEREGULATION 8.1 Offer Renewals in Year Beginning 1 July 1991 In the year commencing 1 July 1991 the insurer shall offer to renew a policy issued by it prior to that date and in force immediately prior to the renewal date at the premium applicable to the policyholder. The offer for renewal shall be made at least 28 days prior to the renewal date by sending the offer to the address of the insured last known to the insurer. 8.2 Assigned Risks Pool Prior to the deregulation date and at least once every 12 months thereafter, authorised representatives of insurers shall meet to agree on: > (a) the detailed operation of the assigned risks pool which shall include motor vehicles which the insurers would not be ordinarily prepared to insure themselves; > (b) the risks to be allocated to the assigned risks pool; > (c) the premiums to be charged in relation to risks allocated to the assigned risks pool, and after agreement is reached in accordance with clause 10 the insurers shall submit the premiums to the Authority in accordance with sections 15–15B of the Act. 8.3 Insurers to Insure Assigned Risks Pool A licensed insurer shall insure any motor vehicle which falls into the assigned risks pool at the premium payable in respect of the vehicle unless the insurer is prepared to insure that motor vehicle at the insurer’s own risk. 8.4 Notification of Assigned Risks An insurer shall on the issue by it of a third party policy designate that policy in a manner specified by the insurers under subclause 8.2 as being an assigned risk or not and shall promptly notify the clearing house established under clause 5 of all policies issued by it in respect of the assigned risks pool. 8.5 Insurers to Meet Assigned Risk Claims Each insurer shall meet and pay any claim in respect of a policy issued by it and designated as included in the assigned risks pool (“assigned risk policies”) and after application of the sharing agreement the insurers shall share the claim cost of all claims in an accident year payable under assigned risk policies in proportion to the market share of insurers in that accident year. 8.6 Premium Adjustment At the end of each accident year the insurers shall adjust premiums received by each of them in respect of assigned risk policies so that each insurer receives a proportion of the aggregate of such premiums equal to the market share of that insurer in the accident year. 8.7 Settlement of Claims Insurers shall notify the claim costs in relation to claims under assigned risk policies handled by them in the same manner as provided in subclauses 5.15, 5.16 and 5.17 and shall provide such details and supporting information as is required by the clearing house established under those clauses. 9. ADVERSE ACTION BY THE CROWN OR THE AUTHORITY 9.1 Right to Immediately Surrender Licence 1 July 1989 to 1 July 1995 The Crown agrees with the insurers that if during the period of 1 July 1989 to 1 July 1995 any of the following events should occur: > (a) legislation is passed by the Parliament of the State of New South Wales which varies or replaces the [Motor Accidents Act 1988](/view/html/inforce/current/act-1988-102) and which materially adversely affects insurers or any one of them; > (b) regulations are gazetted and not disallowed by the Parliament of the State of New South Wales under the [Motor Accidents Act 1988](/view/html/inforce/current/act-1988-102) or any Act replacing or amending that Act on or after 1 July 1989 which materially adversely affects insurers or any one of them; > (c) legislation is passed by the Parliament of the State of New South Wales which increases or is likely to increase the claim cost of claims and which materially affects insurers or any one of them; or > (d) there is a material adverse failure to observe or perform any provision of this Deed by the Crown or the Authority and if that failure is capable of remedy and is not remedied within 20 business days of a notice by any insurer to the Crown or Authority, as the case may be, specifying the failure and requiring it to be remedied, then an insurer adversely affected by an event specified in this clause may by notice to the Authority given within 3 months of the event surrender its licence and the Authority shall immediately suspend that licence. 9.2 Compensation If an event specified in subclause 9.1 occurs prior to 1 July 1995, then the Crown in addition to any amount that may be payable under subclause 9.6 shall, within 28 days after they have been assessed, pay to each insurer who has surrendered its licence under subclause 9.1 by way of liquidated damages: > (a) if the event occurred prior to 1 July 1992, the sum calculated by the formula: > > %20AND%20(No%3D102)%20AND%20(Year%3D1988)%20AND%20(%22Historical%20Document%22%3D0))/g1.gif) > (b) if the event occurred on or after 1 July 1992 but prior to 1 July 1994, the sum calculated by the formula: > > %20AND%20(No%3D102)%20AND%20(Year%3D1988)%20AND%20(%22Historical%20Document%22%3D0))/g2.gif) > (c) if the event occurred on or after 1 July 1994 but prior to 1 July 1995, the sum calculated by the formula: > > %20AND%20(No%3D102)%20AND%20(Year%3D1988)%20AND%20(%22Historical%20Document%22%3D0))/g3.gif) > > > where: > > P is the aggregate premium income of the licensed insurer for the last 12 complete months immediately prior to the date the licensed insurer gives notice to the Authority surrendering its licence under subclause 9.1. 9.3 No Adverse Affect An insurer shall not be adversely affected by an event specified in subclause 9.1 if: > (a) the event will or is reasonably likely to reduce the amount payable in respect of most claims; > (b) the event is one specified in paragraph (a) or (b) of subclause 9.1 and it occurs after the deregulation date and it only operates in respect of motor accidents occurring 12 months after the date on which the variation is made; > (c) there is a variation of the Act or the regulations to which the insurers agree; or > (d) the event makes significant changes to reporting and procedural requirements prior to 1 July 1991 and the premium rates are increased to adequately compensate for the increased cost of those requirements in future years. 9.4 Deemed Adverse Affect Without limiting the generality of subclause 9.1, an event specified in paragraph (a) or (b) shall be deemed to materially adversely affect a licensed insurer if: > (a) a reasonable insurer in the circumstances of the licensed insurer would not have applied for a licence if the event relied on under paragraph (a) or (b) of subclause 9.1 had occurred prior to the application for a licence by that licensed insurer; > (b) the event occurs prior to the deregulation date and it increases or is likely to increase the amount payable in respect of claims; > (c) the event occurs after the deregulation date that increases or is likely to increase the amount payable in respect of claims and it operates in respect of claims arising from motor accidents occurring less than 12 months after the date of the event; or > (d) unless the insurers agree, a regulation reducing the discount rate specified in subsection 71 (1) (e) of the Act is prescribed. 9.5 Compensation to Suspended Insurers If the Act is varied to require or the Authority requires suspended insurers to incur additional costs by reason of changes in reporting, audit and related requirements, then the cost of those additional requirements shall be paid by the Crown. 9.6 Retrospective Changes to Amounts Payable Under Claims If at any time an event of a type specified in subclause 9.1 occurs whereby the amount payable in respect of a claim is increased in respect of claims arising from motor accidents occurring prior to a date 12 months after the date of the event, then the Crown, in addition to any damages payable under subclause 9.2, shall pay damages to each insurer of an amount sufficient to fully fund the increased liability of that insurer in respect of any additional amounts payable by that insurer by reason of that event in respect of those claims. 9.7 Dispute Resolution If there is any dispute or difference between the Crown and any insurer in respect of the amount payable under subclause 9.6 then that amount shall be determined by the arbitrator. 9.8 Extent of the Crown’s Liability The liability of the Crown for damages for an event specified in subclause 9.1 shall be determined exclusively in accordance with this clause and that liability shall not exceed the liability so determined. 9.9 Clause does not Affect other Rights Subject to subclause 9.8, this clause is not to be construed so as to limit or restrict any other right or entitlement that an insurer may have if there is any breach of the Act or this Deed. 10. AGREEMENT BY INSURERS 10.1 Approval Requirements In relation to any matter requiring the consent, agreement or approval of all licensed insurers or insurers under the Act or this Deed, then if 75% of those licensed insurers or insurers representing at least 65% of the market share of all licensed insurers so agree then all licensed insurers or insurers, as the case may be, shall be deemed to have given their consent, agreement or approval. 10.2 Method of Obtaining Approval A consent, agreement or approval under subclause 10.1 may be evidenced by a document or series of documents setting out the matter consented to, agreed or approved and executed by the required majority of licensed insurers or insurers. 10.3 Insurers May Appoint Agent For the purpose of entering into or negotiating any agreement supplementary to this Deed or relating to the third party business of insurers or for any other matter, the insurers may pursuant to this clause appoint a person or persons as the agent or representative of all the insurers for that purpose. 10.4 Other Agreements If the insurers or licensed insurers agree in writing on any matter relating to the operation of this Deed or the Act in accordance with subclause 10.1, then all insurers or a licensed insurer as the case may be shall be deemed to have given their agreement to that matter. 11. APPLICABLE LAW This Deed shall be governed by and construed in accordance with the law for the time being in force in the State of New South Wales and the parties agree to submit to the non-exclusive jurisdiction of the Courts of that State. 12. NOTICES 12.1 Any notice, approval, request, consent or other communication given or made to a party under this Deed must be in writing and delivered in person or sent by post, telex or facsimile transmission to the party at the following address, telex number or facsimile number: > in the case of the Crown: > Address: The Attorney General of the State of New South Wales > Facsimile No: > Telex No: > in the case of the Authority: > Address: > Facsimile No: > Telex No: > in the case of the Insurance Parties: > at the address, facsimile or telex number set forth in Schedule 1 or in the accession deed executed by the particular Insurance Party; > or such other address, facsimile or telex number as a party from time to time may notify to the other parties for the purpose of this clause. 12.2 Any notice, approval, request, consent or other communication given or made pursuant to this clause shall be deemed to be duly given or made: > (a) in the case of delivery in person when delivered to the recipient at such number or address; or > (b) in the case of telex on receipt by the sending of the answerback code of the recipient at the end of the transmission, but if such delivery or receipt is later than 5.00 p.m. (local time) on a business day it shall be deemed to have been duly given at the commencement of business on the next business day. 13. WAIVER 13.1 Delay in Exercise of Rights No delay or omission to exercise any right, power or remedy accruing to any party upon any breach or default by any other party under this Deed shall impair any such right, power or remedy nor shall it be construed to be a waiver of any such breach or default thereafter occurring nor shall any waiver of any single breach or default be deemed to be a waiver of any other breach or default. 13.2 Waivers Any waiver agreement, consent or approval of any kind or character on the part of any party of any breach or default by any other party or any waiver on the part of any party of any provisional condition of the Deed must be in writing and shall be effective only to the extent specifically set forth in such writing. 13.3 Remedies Cumulative All remedies available to the parties under this Deed shall be cumulative. 14. ENTIRE AGREEMENT The terms and conditions of this Deed together with any written amendments which are confirmed by the parties as amendments to this Agreement shall constitute the complete deed between the parties and it is expressly agreed and declared that no further or other covenants or provisions in respect of this Deed or otherwise shall be deemed to be implied in this Agreement or to exist between the parties by way of collateral or other deed by reason of any promise, representation, warranty or undertaking given or made by any party to another party on or prior to the execution of this Deed and the existence of any such implicational collateral or other agreement is hereby negated. 15. AMENDMENTS OR VARIATION No amendment or variation of this Deed by any other party shall be of any force or effect unless the amendment or variation is conferred in writing and signed by all parties. 16. ASSIGNMENT The deed may not be assigned in whole or in part by any party without the prior written consent of all other parties. 17. COSTS The parties shall each bear their own legal and other costs incidental to the preparation execution and implementation of this Deed. 18. ARBITRATION If any dispute or difference is referred to the arbitrator under this Deed then unless otherwise agreed by the parties to the referral the arbitrator shall determine the dispute or difference in accordance with and subject to the Institute of Arbitrators Australia Rules for the conduct of Commercial Arbitrations. SCHEDULE 1 | Name of Insurer | Address | Facsimile No. | Telex No. | | 1. | | | | | 2. | | | | | 3. | | | | | 4. | | | | SCHEDULE 2 Accession Deed THIS DEED POLL is made the day of 19 BY: \[ \] of \[ \] (the “Acceding Party”) > RECITALS > > > A. > > > > The Acceding Party proposes to apply to become a licensed insurer under the [Motor Accidents Act 1988](/view/html/inforce/current/act-1988-102). > > > B. > > > > It is a condition of the grant of licence under that Act that the licensed insurer become a party to the Industry Deed between the Crown, the Motor Accidents Authority and various insurers and dated \[ \] 1989 (the “Industry Deed”). > > > C. > > > > By clause 2 of the Industry Deed a person may become a party to the Industry Deed by executing an accession deed in the form of this Deed. NOW THIS DEED WITNESSES: The Acceding Party agrees to become bound by and to become a party to the Industry Deed on and from the date on which a licence under Division 1 of Part 8 of the [Motor Accidents Act 1988](/view/html/inforce/current/act-1988-102) is granted to the Acceding Party. For the purposes of clause 12 of the Industry Deed the address, telex number and facsimile number of the Acceding Party is as follows: > Address: > Facsimile No: > Telex No: IN WITNESS WHEREOF the Parties have executed this Deed on the day and year first hereinbefore written. | THE COMMON SEAL of was hereunto affixed in accordance with its Articles of Association in the presence of:.........................Secretary/Director | } | .........................Director | **sch 5:** Ins 1989 No 47, Sch 1 (77).