Fillable Printable Standard Deed of Novation

Standard Deed of Novation

Between

The entity described in Item 1 of the Schedule as the State of Queensland

(“State”)

AND

The entity described in Item 2 of the Schedule as the Finance Company

(“Finance Company”)

AND

The person described in Item 3 of the Schedule as the Employee

(“Employee”)

Department of Public Works

80 George Street

BRISBANE QLD 4000

Standard Deed of Novation

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Queensland Government Standard Deed of Novation Version 1.2 dated 22 July 2011

BETWEEN:

The State of Queensland as described in Item 1 of the Schedule (“State”)

AND:

Name of Finance Company as described in Item 2 of the Schedule (“Finance Company”)

AND:

Name of Employee as described in Item 3 of the Schedule (“Employee”)

BACKGROUND

A. The Employee leases the Vehicle from the Finance Company under the Original Lease.

B. The Employee and the Finance Company agree that the Original Lease may be novated on the terms and

conditions of this Deed.

C. The State and the Finance Company agree to assume the rights a nd obligations under the Novated Lease

on the terms and conditions of this Deed.

OPERATIVE PROVISIONS

1. Definitions and Interpretation

1.1 In this Deed unless the context otherwise requires –

“Authorised Personnel” means employees, agents or subcontractors of the Finance C ompany who assist

the Finance Company to comply with its obligations under this Deed;

“Business Day” means between 9.00am and 5.00pm on a weekday other than a Saturday, Sunday or public

holiday at the Agency’s address;

“Certified agreement” means an agreement mad e in accordance wit h Chapter 6 of the Industrial Relati ons

Act 1999 (Qld) or Part 2-4 of the Fair Work Act 2009 (Cth);

“Commencement Date” means the date the last party to this Deed signs this Deed;

“Deed” means this Deed, any vari ations permitted by this Deed and any Schedules, Annexures or

Attachments to this Deed;

“Department” or “Agenc y” means a Queensland Govern ment department or an administrative unit thereof;

“Employee” means the person described in Item 3 of the Schedule;

“Finance Com

pany” means the entity described in Item 2 of the Schedule;

“Machinery of Government Change” means a transfer of responsibility, function or operations either wholly

or partly, from a Queensland Government Department or Queensland Government Body to another

Queensland Government Department or Queensland Government Body;

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Queensland Government Standard Deed of Novation Version 1.2 dated 22 July 2011

“Novated Lease” means the lease of the Vehicle between the State and t he Finance Company;

“Original Lease” means the lease between the Finance Company and th e Employee, a copy of w hich is set

out in Annexure A to this Deed;

“Personal Information” me

ans information or a n opinion (including information or a n opinion forming part of

a database), whether true or not, and whether recorded in a material form or not, about an indi vidual whose

identity is apparent, or can reasonably be ascertained, from the information or opinion;

“Residual Payment” means a payment to the Finance Company for the residual value of the Vehicle at the

end of the Original Lease or Novated Lease;

“State” means the State of Queensland acting thr ough the entity descri be d in Item 1 of the Schedule;

“Term” means the period beginning on the Commencement Date and ending on the Termination Date;

“Termination Date” means the earlier of:

a) the date the Employee ceases to be employed by the State;

b) the Employee’s date of death;

c) the date the State notifies the Employee that clause 4 applies; or

d) the ter

mination date under the Novated Leas e;

“Third Party Service Provider” m eans the service provider identified in Item 4 of the Schedule;

“Vehicle” means the vehicle leased to the Employee by the Finance Company und er the Original Lease.

1.2 Interpretations

1.2.1 In this Deed, the index and clause headings have been inserted for ease of reference only and are

not intended to affect the meaning or interpretation of this Deed.

1.2.2 The following rules shall apply in interpreting this Deed, except where the context makes it clear

that a rule is not intended to apply:

(a) words importing a ge nd er include the other gender;

(b) words in the singular include the pl ural and vice versa;

legislation amending, consolidatin g or replacing it;

(d) a reference to an entity or person includ es an individual, co rporation, partnership or other

legal entity;

(e) a party includes its executors, administrators, liquidators, successors and permitted assigns;

(f) “consent” means prior written consent;

(g) “in writing” me ans either by letter, ema il or facsimile;

(h) a clause, Schedu le, attachment or annexure is a reference to a clause, Schedule,

attachment or annexure to this Deed;

(i) if a day on which an act is to be done is a Saturday, S unday or public holiday in the place

where the act is to be done, the act may be done on the next Business Day in that place,

unless the Parties agree otherwis e;

(j) if any expression is defined, other grammati cal forms of that expression will have

corresponding meanings, unless the cont ext otherwise requires;

(k) a clause is a reference to all of its sub-claus es; and

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Queensland Government Standard Deed of Novation Version 1.2 dated 22 July 2011

(l) a document or agreement or a provision of a doc um ent or agreem ent, is a referen ce to that

document, agreement or provision as amended, supplemented, replaced or novated.

Terms defined in the Original Lease have the same meaning in this Deed.

2. Novation of Lease

2.1 From the Commencement Date:

(a) the Original Lease is terminated and the Employee and Finance Company:

(i) surrender all their rights; and

(ii) release each other from all obligations, under the Original Lease; and

(b) the Employee’s rights and obligations under the Original Lease are novated to, and assumed by, the

State under the Novated Lease.

2.2 The terms of the Novated Lease are identical to the terms of the Original Lease except that:

(a) any reference to the Employee in the Original Lease will be taken to be a reference to the State in the

Novated Lease;

(b) the Finance Compa ny releases the State from any obligation to make the Residual Payment under the

Novated Lease;

(d) any indemnity provided by the State to the Finance Company is limited to loss or damage i ncurred by

the Finance Compa ny as a result of a breach of the Novated Lease by the State.

3. Employee’s use of Vehicle

3.1 During the Term the St ate must make the Vehicle available to the Em ployee as part of the Employee’s agreed

remuneration package.

3.2 The Finance Company consents to the State providing the Vehicle to th e Employee under clause 3.1.

3.3 During the Term the Empl oyee must:

(a) keep the Vehicle in the Employee’s possession and contro l;

(b) at the Employee’s ow n cost, maintain the Vehicle in good working order;

including, but not limited to, administration costs, stamp duty, insurance premiums, registration,

maintenance, repairs, r ep lacement parts, fuel and o il;

(d) maintain comprehensive insurance in respect of the Veh icle that is acceptable to the State and

Finance Company and ensure that the State and Finance C ompany’s interests are noted under the

insurance polic y ;

(e) not do anything that may result in the insurer refusing an insurance claim in relation to the Vehicle;

(f) not do anything which may void the insurance on th e Vehicle;

(g) not do anything that may void the supplier’s or manufacturer’s warranty for the vehi cle;

(h) only use the Vehicle in accordance with the manufacturer’s recommendations;

(i) not carry any dangerous, noxious or hazardous substance in the Vehicle;

(j) not use the Vehicle in any race or competition;

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Queensland Government Standard Deed of Novation Version 1.2 dated 22 July 2011

(k) not offer the Vehicle for hire;

(l) notify the State and Fin ance Company of any change to the Employee ’s residential address; and

(m) comply with any reasonable directions given by the State in relation to the Vehicle.

4. Termination of Novated Lease

4.1 The State may at any time without reason terminate the Novated Lease by notice in writing to the Finance

Company and t he Employee. The period of the notice will be the period provided for in the Empl oyee’s

relevant Certified agreeme nt, or if no period is provided for, then at least 21 days.

4.2 On the Termination Date:

(a) all the State’s r ights and obligations under the Novated Lease become rights and obligations of the

Employee as if references to the State in the Novated Lease were references to the Employee; and

(b) the State will cease to have any liability under the Novated Lease other than for unpaid lease

payments or unpaid interest payments due and p ayable on the Termination Date.

4.3 The Employee will become personally liable for ongoing lea s e payments and the Residual Payment from the

Termination Date.

5. Indemnity

5.1 The Employee indemnifies the State against any costs, loss or dama ge incurred by the State under the

Novated Lease (other than rent and interest payments), including costs, loss or dam age:

(a) in connection with the Employee failin g, refusing or neglecting to duly and punctually perform the

Employee’s obligations under this Deed;

(b) in connection with any act or omission of the Employee that causes the State to be in breach of the

Novated Lease or this Deed;

(d) as a result of the terminati on of the Novated Lease; and

(e) as a result of this Deed after the Termination Date.

5.2 The State may enforce the indemnity in clause 5.1 without firs t incurring any expense or making any paym ent.

5.3 This clause 5 will survive the termination or expiration of this Deed.

6. Employee’s acknowledgements

6.1 The Employee acknowled ges that:

(a) either:

(i) the Employee has received financi al, taxation and legal advice in relation to the Original Lease

and this Deed; or

(ii) the Employee has sufficient understanding of the Original Lease and this Deed;

(b) FBT charges shall be the responsibility of the employee;

result in the FBT;

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Queensland Government Standard Deed of Novation Version 1.2 dated 22 July 2011

(d) the Employee is responsible for obtainin g financial, taxation an d legal advice, if necessary.

(e) the State recommended that the Employee seek independent financial, taxation and legal advice

before entering into the Original Lease and this Deed;

(f) the Employee has not relied on the advice of the State or the Finance Company in entering into the

Original Lease or this Deed;

(g) the Employee has entered int o the Original Lease and this Deed volu ntarily;

(h) the State does not guarantee the Employee’s employment will continue until the end of the term of the

Novated Lease;

(i) the Employee will become liable for any Residual Payment that becomes due u nd er th e Original Lease

or the Novated Lease; and

(j) any Residual Payment may be more than t he value of the Vehicl e.

6.2 The Employee consents to the Finance Company and the State exch anging and disclosing to the Third Party

Service Provider, Personal Information relating to the Employee for purposes associated with the parties’

obligations under this Deed, the Original Le ase and the Novated Lease and the coll ection of the Residual

Payment.

6.3 The employee consents to the Finance Company and the Third Party Ser vice Provider providing to the State

or a nominated representative of the State, details of all operating costs and data (includi ng fuel costs, litres of

fuel purchased, registration, insurance, lease charges) associated with the operation of the vehicle that is the

subject of this Deed of Novation for a period from 1 April to 31 March in any year or part thereof during the

Term.

7. Finance Company Obligations

7.1 The Finance Company will exchange and disclose to the Third Party Service Provider, Personal Information

relating to the Employee for purposes associated with the parties’ obligations under this Deed, the Original

Lease and the Novated Lease and the colle c tion of the Residual Payment.

7.2 The State may request in writing (as defined in sec.36 of the Acts Interpretation Act 1954) that the Finance

Company provi de to the State or a nominated representative, information within t he possession or control of

the Finance Company about operating costs (including fue l cost, litres of fuel purchased, r eg istration,

insurance, lease ch arges) associated with the operation of the Vehicle that is for a period from 1 April to 31

March in any year or part thereof during the Term.

7.3 The information requested under clause 7.2 must be provided to the State or the nominated representative

within 21 business days of the request being made by the State in a format that can be utilised by the State

unless that information is n ot with in the possessio n or control of the Finance Company.

7.4 This clause 7 will survive expiration or termination of this Deed.

8. Privacy

8.1 To the extent that the Finance Company has access to, or collects, Personal Information in order to fulfill its

obligations under this Deed, the Original Lease and the Novated L ease then it must comply with the privacy

obligations in clause 8.2.

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Queensland Government Standard Deed of Novation Version 1.2 dated 22 July 2011

8.2 The Finance Company must, unless otherwise consented to in writing by the State:

(a) where it is responsible for holding Personal Information, ensure th at Personal Information is protected

against loss and against unauthorised access, use, modification or disclosure and against other

misuse;

(b) not use Personal Information other than for the purposes of this Deed, the Original Lease or the

Novated Lease unless required or authorised by law;

whom the Personal Information relates, unless:

(i) the disclosure is req uired or authorised by law; or

(ii) the Personal Information is disclosed to the Third Party Service Provider or the State and, when

that information was collected, the Employee was made aware that it is Finance Company’s

usual practice to disclose information of that type to the Third Party Service Provider or the

State;

(d) ensure that only Authorised Personnel have access to Personal Information;

(e) promptly notify the State if it becomes aware that a disclosure of Personal Information is, or may be,

required or authorised by law;

(f) make its employees, age nts and subcontractors aware of the Finance Company’s obli gations under

this clause including, when requested by the State requiring those employees, agents and

subcontractors to promptly sign a privacy deed, in a form approved by the State relating to Personal

Information;

(g) not transfer the Personal Information outsid e Australia for any reason unless approve d under a written

authority from the State;

(h) indemnify the State for any liability, loss or cost arising from a breach by the Finance Company of this

clause despite any other provision of this Deed or any other indemnity available to the Finance

Company from the State ; and

(i) comply with such other privacy and security measures as the State reasonably advis es the Finance

Company of in writing from time to time.

8.3 The Finance Company must immediately notify the State upon becoming aware of any breach of clause 8.2.

8.4 This clause 8 will survive expiration or termination of this Deed.

8.5 The Finance Company must not use any subcontractor, servant or agent who is based i n a foreign jurisdiction

without the approval of the State.

8.6 The Employee acknowledges that the Finance C ompany is required t o collect the Employ ee’s Personal

Information for the purposes of this Deed, the Original L ea se and/or the Novated Lea se.

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Queensland Government Standard Deed of Novation Version 1.2 dated 22 July 2011

9. Inconsistencies

9.1 The terms of this Deed will prevail to the extent of any inconsistency with the terms of the Novated Lease.

10. Relationship of the Parties

10.1 Except as is specifically provided in this Deed or any other agreement in writing between the parties –

(a) none of the parties to this Deed shall in cur any expenditure on behalf of any other party to this Deed;

and

(b) none of the parties to this Deed have the power to bind the other party, pledge the credit of any party

or bind the party to any contractual obligation whatsoever, without specific approval in writing of the

other party.

10.2 This Deed does not create any partnership, contract of employment or employment relationship, joint venture

or relationship of principal and agent between the parties.

11. Costs

11.1 The parties to this Deed shall pay their own costs, (including legal costs), expe nses and disbursem ents of and

incidental to the preparation and execution of this Deed.

12. Waiver

12.1 Any failure by a party at any time to enforce a cl ause of this Deed, or any forbearance, delay or indulgence

granted by a party to the other, will not constitute a waiver of the party’s rights.

12.2 No provision of this D eed will be deemed to be waived unless that waiver is in writing and signed by the

waiving party.

12.3 A waiver by a party of breach of any part of this Deed will not be a waiver of any subsequent breach of the

same part nor a waiver of a breach of any other part.

13. Assignment

13.1 Notwithstanding any other provision of this Deed, the Finance Company a nd Employee agree that the State is

entitled to freely transf er responsibility for this Deed and the Novated Lease to another Department or to freely

transfer any of its rights and obligations to another Department on the same terms and conditions as this

Deed, but only as a consequence of either:

(a) a Machinery of Government Change; or

(b) a temporary or permanent change in the Employee’s Department of employment.

14. Variation of Deed

14.1 This Deed may be varied at any time by an a greement in writing ex ecuted by both parties.

14.2 It shall be sufficient eviden ce of an agreement to vary a Schedule to this Deed, if the parties execute as a

deed a document purporting to be a substitute Schedule.

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Queensland Government Standard Deed of Novation Version 1.2 dated 22 July 2011

15. Governing Law

15.1 This Deed is governed by and construed in acc ord ance with the laws of Queensland and the parties submit to

the non-exclusive jurisdiction of the courts of Queensland.

16. Severability

16.1 If any part of this Deed is determined to b e i nvalid, unlawful or unenforceable for any reason the n that part, to

the extent of the invalidity, unlawfulness or unenforceability, will be severe d from the rest of the Deed and the

remaining terms an d conditions will continue to be valid and enforceable to the fullest extent permitted by law.

17. Notices

17.1 Any Notice or other form of communication (a “notice”) which may be given to or s erved on to a party under

this Deed must be in writing and must be sent by prepaid postage, fax or ema il or delivered by han d to the

following respective addresses:.

(a) for the State – as described in Item 1 of the Sched ul e;

(b) for the Finance Company – as describe d in Item 2 of the Schedule;

subsequently notify to the other/s.

17.2 Notwithstanding clause 10.1, the State m ay serve a notice at any time on the Fi nance Company’s re gistered

office.

17.3 A notice will be de emed to be given:

(a) if posted – two Business Days after the date of posting;

(b) if delivered by ha nd during a Busin ess Day – on the date of delivery;

(d) if emailed – on the date of the email

except that a fax or email received after 5.00pm (local time of the re ceiving party) will be deemed to be given

on the next Business Day.

17.4 The parties may from time to time change their respective addresses, telephone and facsimile numbers by

providing the other p arty w ith written notice.

18. Counterparts

18.1 This Deed may be executed in any number of counterparts. Each counterpart constitutes an original of this

Deed, all of which togeth er constitute one instrume nt.

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Queensland Government Standard Deed of Novation Version 1.2 dated 22 July 2011

Executed as a Deed

Execution by the State

Signed for and on behalf of the:

……………………………………………………………………………….

Name of Department or Agency

…………………………………………………………….…………..…….

Name of Department or Agency representative

this ……………….. day of ……………………..………………. 2…….

in the presence of:

………………………………………………………..…………………….

Name of witness

)

…………………………………………….……………………….

Signature of Department or Agency representative

…………………………………………………………………….

Signature of witness

Execution by Finance Company

Signed for and on behalf of:

……………………………………………………………………………….

Finance Company’s Name

…………………………………………………………….…………..…….

Finance Company’s ABN

in accordance with s.127 of the Corporations Act 2001 (Cth)

this ……………….. day of ……………………..………………. 2…….

………………………………………………………..…………………….

Full Name of Finance Company’s Director (print)

………………………………………………………..…………………….

Full Name of Finance Company’s Director/Secretary (print)

)

…………………………………………….……………………….

Signature of Finance Company’s Director

…………………………………………………………………….

Signature of Finance Company’s Director/Secretary

Where an attorney executes this Deed on behalf of the Finance Company, the form of execution must indicate the source of this

authority and such authority must be in the form of a deed and a certified copy thereof provided to the State.

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Queensland Government Standard Deed of Novation Version 1.2 dated 22 July 2011

Signing by the Employee

Signed, sealed and delivered by

……………………………………………………………………………….

Employee’s name

this ……………….. day of ……………………..………………. 2…….

in the presence of

………………………………………………………………………….

Name of witness (Print)

)

………………………………………………………………….

Signature of Employee

…………………………………………………………………

Signature of witness