Casino (Management Agreement) Act 1993 (Vic)
Version No. 047
Casino (Management Agreement) Act 1993
No. 94 of 1993
Version incorporating amendments as at
9 November 2023
TABLE OF PROVISIONS
Section Page
Part 1—Preliminary
1Purpose
2Commencement
3Principal Act
4Definitions
5Crown to be bound
Part 2—Ratification and implementation
6Ratification and implementation of Agreement
6ARatification of the first Deed of Variation
6BRatification of the second Deed of Variation
6CRatification of the third Deed of Variation
6DRatification of the fourth Deed of Variation
6ERatification of the fifth Deed of Variation
6FRatification of the sixth Deed of Variation
6GRatification of the seventh Deed of Variation
6HRatification of the eighth Deed of Variation
6IRatification of the ninth Deed of Variation
6JRatification of the tenth Deed of Variation
7Agreement to prevail if inconsistent with Casino Control Act
7AVariation of Agreement
7BNo liability
7CVariation of Agreement—junkets
7CAVariation of Agreement—taxation
7DVariation of Agreement—Melbourne Casino Sublease Area
8Powers of Commission
9Transfer of Melbourne Casino Licence
10Commission may enter into agreement on postponement of action
11Taxes and charges
12Payments under Master Security Agreement
13Application of casino earnings if licence cancelled etc.
14Change in situation of casino operator
15Certain agreements not controlled contracts
16Development conditions under the Agreement
17Cancellation and refunds
Part 5—Transitional provisions—Victorian Commission for Gambling and Liquor Regulation Act 2011
21Definitions
22Things commenced by the former Commission before abolition of former Commission
Part 6—Transitional provisions—Gambling Taxation Act 2023
23Tax and community benefit levy in relation to periods before 1 July 2023
Schedules
Schedule 1
Schedule 2—Deed of variation to the management agreement
Schedule 3—Second deed of variation to the management agreement
Schedule 4—Third deed of variation to the management agreement
Schedule 5—Fourth deed of variation to the management agreement
Schedule 6—Fifth deed of variation to the management agreement
Schedule 7—Sixth deed of variation to the management agreement
Schedule 8—Seventh deed of variation to the management agreement
Schedule 9—Eighth deed of variation to the management agreement
Schedule 10—Ninth deed of variation to the management agreement
Schedule 11—Tenth deed of variation to the management agreement
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Endnotes
1 General information
2 Table of Amendments
3 Explanatory details
Version No. 047
Casino (Management Agreement) Act 1993
No. 94 of 1993
Version incorporating amendments as at
9 November 2023
Preamble
Recognising—
(a)that the Casino Control Authority proposes, subject to certain terms and conditions, to grant to Crown Casino Ltd a licence for a casino under the Casino Control Act 1991;
(b)that it is a condition precedent to the granting of a casino licence that an agreement in writing be entered into between the Minister and Crown Casino Ltd;
(c)that it is expedient to ratify and approve that agreement:
The Parliament of Victoria enacts as follows:
PART 1—PRELIMINARY
1Purpose
The purpose of this Act is to ratify the management agreement for the Melbourne Casino.
2Commencement
This Act comes into operation on the day on which it receives the Royal Assent.
3Principal Act
In this Act, the Casino Control Act 1991 is called the Principal Act.
4Definitions
In this Act—
Commission means Victorian Gambling and Casino Control Commission established under Part 2 of the Victorian Gambling and Casino Control Commission Act 2011;
Melbourne Casino Licence has the same meaning as "Casino Licence" has in the Agreement;
Melbourne Casino Operator has the same meaning as "Company" has in the Agreement;
the Agreement means the management agreement for the Melbourne Casino, a copy of which is set out in Schedule 1, and includes the Agreement as varied by the first Deed of Variation and the second Deed of Variation and the third Deed of Variation and the fourth Deed of Variation and the fifth Deed of Variation and the sixth Deed of Variation and the seventh Deed of Variation and the eighth Deed of Variation and the ninth Deed of Variation and the tenth Deed of Variation and as varied by sections 7A, 7C, 7CA and 7D;
the first Deed of Variation means the deed of variation to the management agreement for the Melbourne Casino Project, a copy of which is set out in Schedule 2;
the second Deed of Variation means the deed of variation to the management agreement for the Melbourne Casino Project, a copy of which is set out in Schedule 3;
the third Deed of Variation means the deed of variation to the management agreement for the Melbourne Casino Project, a copy of which is set out in Schedule 4;
the fourth Deed of Variation means the deed of variation to the management agreement for the Melbourne Casino Project, a copy of which is set out in Schedule 5;
the fifth Deed of Variation means the deed of variation to the management agreement for the Melbourne Casino Project, a copy of which is set out in Schedule 6;
the sixth Deed of Variation means the deed of variation to the management agreement for the Melbourne Casino Project, a copy of which is set out in Schedule 7;
the seventh Deed of Variation means the deed of variation to the management agreement for the Melbourne Casino Project, a copy of which is set out in Schedule 8;
the eighth Deed of Variation means the deed of variation to the management agreement for the Melbourne Casino Project, a copy of which is set out in Schedule 9;
the ninth Deed of Variation means the deed of variation to the management agreement for the Melbourne Casino Project, a copy of which is set out in Schedule 10;
the tenth Deed of Variation means the deed of variation to the management agreement for the Melbourne Casino Project, a copy of which is set out in Schedule 11.
5Crown to be bound
This Act binds the Crown in right of Victoria and, so far as the legislative power of the Parliament permits, the Crown in all other capacities.
PART 2—RATIFICATION AND IMPLEMENTATION
6Ratification and implementation of Agreement
(1)The Agreement is ratified and takes effect as if it had been enacted in this Act.
(2)The Minister administering this Act, the Treasurer and the Commission are authorised and required to do all things necessary to implement and give full effect to the Agreement and the other Transaction Documents within the meaning of the Agreement.
(3)A reference in clause 24.1 of the Agreement to the Gaming Machine Control Act 1991, the Lotteries Gaming and Betting Act 1966, the Tattersall Consultations Act 1958 or the Club Keno Act 1993 must, so far as it relates to any period on or after the commencement of section 12.2.1 of the Gambling Regulation Act 2003, be construed as a reference to the Gambling Regulation Act 2003.
6ARatification of the first Deed of Variation
(1)The first Deed of Variation is ratified and takes effect as if it had been enacted in this Act.
(2)The Agreement is amended as provided in the first Deed of Variation.
6BRatification of the second Deed of Variation
(1)The second Deed of Variation is ratified and takes effect as if it had been enacted in this Act.
(2)The Agreement is amended as provided in the second Deed of Variation.
6CRatification of the third Deed of Variation
(1)The third Deed of Variation is ratified and takes effect as if it had been enacted in this Act.
(2)The Agreement is amended as provided in the third Deed of Variation.
(3)A reference in clause 2.2 of the third Deed of Variation to the coming into operation of the Bill is deemed to be a reference to the commencement of Part 7 of the Gaming Acts (Amendment) Act 1996.
6DRatification of the fourth Deed of Variation
(1)The fourth Deed of Variation is ratified and takes effect as if it had been enacted in this Act.
(2)The Agreement is amended as provided in the fourth Deed of Variation.
(3)A reference in clause 2.2 of the fourth Deed of Variation to the coming into operation of the Bill is deemed to be a reference to the commencement of the Casino (Management Agreement) (Amendment) Act 1996.
6ERatification of the fifth Deed of Variation
(1)The fifth Deed of Variation is ratified and takes effect as if it had been enacted in this Act.
(2)The Agreement is amended as provided in the fifth Deed of Variation.
(3)A reference in clause 2.2 of the fifth Deed of Variation to the coming into operation of the Bill is deemed to be a reference to the date on which the Gaming Acts (Further Amendment) Act 1998 receives the Royal Assent.
6FRatification of the sixth Deed of Variation
(1)The sixth Deed of Variation is ratified and takes effect as if it had been enacted in this Act.
(2)The Agreement is amended as provided in the sixth Deed of Variation.
6GRatification of the seventh Deed of Variation
(1)The seventh Deed of Variation is ratified and takes effect as if it had been enacted in this Act.
(2)The Agreement is amended as provided in the seventh Deed of Variation.
(3)A reference in clause 2.2 of the seventh Deed of Variation to the coming into operation of the Bill is deemed to be a reference to the commencement of the Casino (Management Agreement) (Amendment) Act 2002.
6HRatification of the eighth Deed of Variation
(1)The eighth Deed of Variation is ratified and takes effect as if it had been enacted in this Act.
(2)The Agreement is amended as provided in the eighth Deed of Variation.
(3)A reference in clause 2.2 of the eighth Deed of Variation to the coming into operation of the Bill is deemed to be a reference to the commencement of the Casino Control (Amendment) Act 2005.
6IRatification of the ninth Deed of Variation
(1)The ninth Deed of Variation is ratified and takes effect as if it had been enacted in this Act.
(2)The Agreement is amended as provided in the ninth Deed of Variation.
(3)A reference in clause 2.2 of the ninth Deed of Variation to the coming into operation of the Bill is deemed to be a reference to the commencement of Part 3 of the Casino Legislation Amendment Act 2009.
6JRatification of the tenth Deed of Variation
(1)The tenth Deed of Variation is ratified and takes effect as if it had been enacted in this Act.
(2)The Agreement is amended as provided in the tenth Deed of Variation.
(3)A reference in clause 2.2(a) of the tenth Deed of Variation to the coming into operation of the Bill is taken to be a reference to the commencement of the Casino and Gambling Legislation Amendment Act 2014.
7Agreement to prevail if inconsistent with Casino Control Act
(1)If a provision of the Agreement is inconsistent with a provision of the Principal Act—
(a)the provision of the Agreement prevails; and
(b)the application of the Principal Act in relation to the Melbourne Casino Licence and Melbourne Casino Operator is modified accordingly.
(2)Nothing in this section derogates from the operation of section 6(1) or 6A(1) or 6B(1) or 6C(1) or 6D(1) or 6E(1) or 6F(1) or 6G(1) or 6H(1) or 6I(1) or 6J(1).
(3)Nothing in this section applies in relation to Division 4 of Part 3 of the Principal Act.
Note
Section 36R(1) of the Principal Act provides that Division 4 of Part 3 of that Act applies despite anything to the contrary in this Act.
7AVariation of Agreement
Despite anything to the contrary in this Act or the Agreement—
(a)the Agreement is taken to have been varied on 15 October 2021 by deleting Part 5A and Annexure 1, as inserted by the tenth Deed of Variation and ratified by section 6J; and
(b)Part 5A of and Annexure 1 to the Agreement, as they take effect under section 6J, are taken to have been repealed on 15 October 2021.
7BNo liability
(1)On and after the commencement of this section, the State has, and can have, no liability to any person, whether under clause 4 or 24A of the Agreement or otherwise, that is or would be in respect of any cost, loss or damage incurred directly or indirectly as a result of, or arising out of—
(a)the enactment of the Casino and Gambling Legislation Amendment Act 2021; or
(b)the variation of the Agreement and the repeal of Part 5A and Annexure 1 by section 7A; or
(c)the appointment of a special manager and the cancellation of the Melbourne Casino Licence under the Casino Control Act 1991.
(2)For the purpose of clause 25 of the Agreement or any other purpose, any liability of the State that may have arisen under Part 5A of the Agreement on or after 15 October 2021 and before the commencement of this section is extinguished.
(3)In this section—
State includes—
(a)State within the meaning of section 38 of the Interpretation of Legislation Act 1984; and
(b)a Minister; and
(c)the Commission; and
(d)a public sector employee within the meaning of the Public Administration Act 2004; and
(e)an agent, representative, advisor, consultant or contractor of a person referred to in paragraph (a), (b), (c) or (d).
Note
Section 38 of the Interpretation of Legislation Act 1984 defines State as the State of Victoria.
7CVariation of Agreement—junkets
(1)Despite anything to the contrary in this Act or the Agreement—
(a)the Agreement is varied on the commencement of this section by deleting "or a junket" (where first occurring) and "or a junket player (as the case may be)" in the definition of "Commission Based Player" in clause 2, as inserted by the second Deed of Variation and ratified by section 6B; and
(b)the definition of "Commission Based Player" in clause 2 of the Agreement, as it takes effect under section 6B, is amended on the commencement of this section by omitting—
(i)"or a junket" (where first occurring); and
(ii)"or a junket player (as the case may be)".
(2)On and after the commencement of this section, the State has, and can have, no liability to any person, whether under clause 4 of the Agreement or otherwise, that is or would be in respect of any cost, loss or damage incurred directly or indirectly as a result of, or arising out of—
(a)the enactment of section 48 of the Casino Legislation Amendment (Royal Commission Implementation and Other Matters) Act 2022; or
(b)the variation of the Agreement by subsection (1)(a) and the amendments made by subsection (1)(b).
(3)In this section—
State includes—
(a)State within the meaning of section 38 of the Interpretation of Legislation Act 1984; and
(b)a Minister; and
(c)the Commission; and
(d)a public sector employee within the meaning of the Public Administration Act 2004; and
(e)an agent, representative, advisor, consultant or contractor of a person referred to in paragraph (a), (b), (c) or (d).
Note
Section 38 of the Interpretation of Legislation Act 1984 defines State as the State of Victoria.
7CAVariation of Agreement—taxation
(1)Despite anything to the contrary in this Act or the Agreement—
(a)the Agreement is varied on the commencement of this section by deleting clauses 22.1(b) and (d), 22.2, 22.3, 22.4, 22.5, 22.6, 22.7 and 22A; and
(b)clauses 22.1(b) and (d), 22.2, 22.3, 22.4, 22.5, 22.6, 22.7 and 22A of the Agreement, as they take effect under sections 6, 6B, 6I and 6J (as the case requires), are repealed on the commencement of this section.
(2)On and after the commencement of this section, the State has, and can have, no liability to any person, whether under clause 4 of the Agreement or otherwise, that is or would be in respect of any cost, loss or damage incurred directly or indirectly as a result of, or arising out of—
(a)the enactment of section 64 of the Gambling Taxation Act 2023; or
(b)the variation of the Agreement by subsection (1)(a) and the amendments made by subsection (1)(b).
(3)In this section—
State includes—
(a)State within the meaning of section 38 of the Interpretation of Legislation Act 1984; and
(b)a Minister; and
(c)the Commission; and
(d)a public sector employee within the meaning of the Public Administration Act 2004; and
(e)an agent, representative, advisor, consultant or contractor or a person referred to in paragraph (a), (b), (c) or (d).
Note
Section 38 of the Interpretation of Legislation Act 1984 defines State as the State of Victoria.
7DVariation of Agreement—Melbourne Casino Sublease Area
(1)Despite anything to the contrary in this Act or the Agreement—
(a)clause 26 of the Agreement, as ratified by section 6, is varied on the commencement of this section by—
(i)deleting "Melbourne Casino" in clauses 26.5(a), (c), (e), (f) (where secondly occurring), (g) and (i), 26.6(a), (c), (d) and (e) and 26.7 and substituting "Melbourne Casino Sublease Area"; and
(ii)adding the following clause as clause 26.9—
'26.9In this clause—
"Melbourne Casino Sublease Area" means the area within the boundaries of the casino to which this Agreement relates as determined and varied from time to time under section 17 of the Casino Control Act.';
(b)clause 26 of the Agreement, as it takes effect under section 6, is amended on the commencement of this section by—
(i)for "Melbourne Casino" in clauses 26.5(a), (c), (e), (f) (where secondly occurring), (g) and (i), 26.6(a), (c), (d) and (e) and 26.7 substituting "Melbourne Casino Sublease Area"; and
(ii)inserting the following after clause 26.8—
'26.9In this clause—
"Melbourne Casino Sublease Area" means the area within the boundaries of the casino to which this Agreement relates as determined and varied from time to time under section 17 of the Casino Control Act.'.
(2)On and after the commencement of this section, the State has, and can have, no liability to any person, whether under clause 4 of the Agreement or otherwise, that is or would be in respect of any cost, loss or damage incurred directly or indirectly as a result of, or arising out of—
(a)the enactment of section 49 of the Casino Legislation Amendment (Royal Commission Implementation and Other Matters) Act 2022; or
(b)the variation of the Agreement by subsection (1)(a) and the amendments made by subsection (1)(b).
(3)In this section—
State includes—
(a)State within the meaning of section 38 of the Interpretation of Legislation Act 1984; and
(b)a Minister; and
(c)the Commission; and
(d)a public sector employee within the meaning of the Public Administration Act 2004; and
(e)an agent, representative, advisor, consultant or contractor of a person referred to in paragraph (a), (b), (c) or (d).
Note
Section 38 of the Interpretation of Legislation Act 1984 defines State as the State of Victoria.
8Powers of Commission
In addition to the functions and powers conferred on the Commission under the Principal Act, the Commission has the functions and powers conferred, or purporting to be conferred, on it, whether directly or indirectly, by the Agreement.
9Transfer of Melbourne Casino Licence
(1)Despite anything to the contrary in the Principal Act, the Melbourne Casino Licence may be sold, transferred, assigned or otherwise disposed of by the Melbourne Casino Operator to another person if—
(a)the Minister has, in writing, approved the transfer or assignment to that person of the rights, liabilities and obligations of the Melbourne Casino Operator under the Agreement; and
(b)the Commission has, in writing, approved that person.
(2)Subsection (1)(a) does not apply to an assignment of rights under the Agreement which, under clause 36.1 of the Agreement, does not require the prior written consent of the State.
(3)The Commission must not approve a person for the purpose of subsection (1) unless the Commission is satisfied that, if the person were an applicant for a licence under the Principal Act, the Commission would grant the application under the Principal Act.
(4)Upon the sale, transfer, assignment or disposal of the Melbourne Casino Licence to another person as referred to in this section, this Act and the Agreement have effect as if a reference to the Melbourne Casino Operator were a reference to that other person.
10Commission may enter into agreement on postponement of action
Without affecting their rights under the Principal Act, the Commission and the Minister are authorised, and deemed always to have been authorised, from time to time to enter into an agreement with the Melbourne Casino Operator and any other person or persons under which the Commission or the Minister agrees to give such notices or take such action as is specified in the agreement before the Commission exercises powers under Part 2 of the Principal Act in relation to the Melbourne Casino Licence.
11Taxes and charges
(1)The payments to the State for which provision is made by Part 4 of the Agreement as varied from time to time are taxes, fees, charges and other payments payable by the Melbourne Casino Operator in lieu of tax payable under section 112A of the Principal Act.
(2)Payments referred to in subsection (1) must be made to the Commission for payment to the Consolidated Fund.
(3)Section 112A of the Principal Act does not apply to the Melbourne Casino Operator or the Melbourne Casino Licence.
(3A)For the avoidance of doubt, sections 112B and 112C of the Principal Act apply to the Melbourne Casino Operator.
Note
Sections 112B and 112C of the Principal Act provide for payment of a supervision charge by a casino operator.
(4)The reference in clause 22.9 of the Agreement to exclusivity casino tax is deemed to be a reference to additional casino tax referred to in clause 22.1(c) of the Agreement.
(5)For the avoidance of doubt, clauses 22B, 22C and 22D of the Agreement are in Part 4 of the Agreement.
(6)For the avoidance of doubt, the Gambling Taxation Act 2023 applies to the Melbourne Casino Operator.
12Payments under Master Security Agreement
If, under clause 4.9 or 11 of the Master Security Agreement (within the meaning of the Agreement), the State or the Commission is required to pay an amount, the amount (not exceeding, in the case of a payment under clause 11, the amount received by or on behalf of the State for the issue of a new casino licence) is payable from the Consolidated Fund which is, to the necessary extent, appropriated accordingly.
13Application of casino earnings if licence cancelled etc.
(1)If, while the Master Security Agreement (within the meaning of the Agreement) is in force, there is a manager of the Melbourne casino (within the meaning of the Agreement) appointed under section 22 of the Casino Control Act 1991, the net earnings of the casino must be applied in accordance with clause 4.1(b) to (f) of the Master Security Agreement.
(2)In subsection (1), net earnings means gross gaming revenue (as defined in the Master Security Agreement) less casino taxes (as so defined) and operating expenses, other than interest and financing costs.
14Change in situation of casino operator
A reference in section 28(1)(a) of the Principal Act to a person becoming an associate of the casino operator does not include a reference to a receiver appointed in accordance with the Master Security Agreement within the meaning of the Agreement.
15Certain agreements not controlled contracts
The Facility Agreement within the meaning of the Management Agreement, and Financing Documents within the meaning of the Facility Agreement, are not controlled contracts within the meaning of section 29 of the Principal Act.
16Development conditions under the Agreement
(1)Despite anything to the contrary in clause 10 of the Agreement, the Company (within the meaning of the Agreement) may make such changes to the Drawings (within the meaning of the Agreement) as are authorised in writing by the Minister.
(2)If the Minister authorises changes to the Drawings, the Minister must cause a copy of the changes to be tabled in each House of the Parliament within 6 sitting days of the House after the changes are authorised.
(3)The changes are disallowed if—
(a)notice of a resolution to disallow the changes is given in a House of the Parliament within 6 sitting days of the House after a copy of the changes is laid before it; and
(b)the House passes the resolution within 6 sitting days after the giving of the notice.
(4)If a House of the Parliament is prorogued or the Legislative Assembly is dissolved—
(a)the prorogation or dissolution does not affect the power of either House to pass a resolution disallowing the changes; and
(b)the calculation of sitting days of the House shall be made as if there had been no prorogation or dissolution.
(5)The disallowance of changes to the Drawings under this section has the same effect as if the changes had not been authorised.
17Cancellation and refunds
If the Melbourne Casino Licence is cancelled, the licensing payment amounts shall be refunded in accordance with the Agreement and the Consolidated Fund is to the necessary extent appropriated accordingly.
* * * * *
PART 5—TRANSITIONAL PROVISIONS—VICTORIAN COMMISSION FOR GAMBLING AND LIQUOR REGULATION ACT 2011
21Definitions
In this Part—
commencement day means the day on which section 101 of the Victorian Commission for Gambling and Liquor Regulation Act 2011 comes into operation;
former Commission means the Victorian Commission for Gambling Regulation established by section 10.1.1 of the Gambling Regulation Act 2003, as in force immediately before the commencement day;
new Commission means Victorian Commission for Gambling and Liquor Regulation established under Part 2 of the Victorian Commission for Gambling and Liquor Regulation Act 2011.
22Things commenced by the former Commission before abolition of former Commission
(1)This section applies if immediately before the commencement day—
(a)the former Commission has commenced to do something required or permitted to be done under the Act; and
(b)the former Commission has not completed doing that thing before that day.
(2)On and after the commencement day, the new Commission may continue to do and complete that thing in accordance with the Act, as if the Act had not been amended by the Victorian Commission for Gambling and Liquor Regulation Act 2011.
(3)For the purposes of this section, anything done by the former Commission before the commencement day in respect of that thing is, on and after that day, taken to have been done by the new Commission.
PART 6—TRANSITIONAL PROVISIONS—GAMBLING TAXATION ACT 2023
23Tax and community benefit levy in relation to periods before 1 July 2023
(1)This Act and the Agreement, as in force immediately before 1 July 2023, continue to apply on and after 1 July 2023 in relation to the Gross Gaming Revenue and Commission Based Players' Gaming Revenue of the Melbourne Casino Operator in respect of any period before that day.
(2)Without limiting subsection (1)—
(a)clauses 22.1(b) and (d), 22.2, 22.3, 22.4, 22.5, 22.6 and 22.7 of the Agreement continue to apply on and after 1 July 2023 to require the Melbourne Casino Operator to pay casino tax, a community benefit levy and additional casino tax on Gross Gaming Revenue in respect of any period before that day; and
(b)clause 22A of the Agreement continues to apply on and after 1 July 2023 to require the Melbourne Casino Operator to pay casino tax, a community benefit levy and additional casino tax on Commission Based Players' Gaming Revenue in respect of any period before that day.
SCHEDULES
SCHEDULE 1
AGREEMENT dated 20 September 1993
BETWEEN THE HONOURABLE HADDON STOREY QC MLC the Minister of the Crown for the time being administering the Casino Control Act, acting for and on behalf of the State of Victoria ("State")
ANDCROWN CASINO LTD. ACN 006 973 262 with its registered office at Hudson Conway House, 311 Glenferrie Road, Malvern, Victoria ("Company").
RECITALS
A. The Authority has power to grant a casino licence under the provisions of the Casino Control Act.
B. Under section 15 of the Casino Control Act it is a condition precedent to the grant of a casino licence that an agreement in writing be entered into between the Minister for and on behalf of the State and the proposed casino operator identifying the casino to be the subject of the casino licence and containing any terms and conditions that the Minister thinks fit.
C. The Company has made application for a casino licence for the Melbourne Casino and pursuant to such application has provided information and submissions, including the Melbourne Casino Complex Development Proposals and the Temporary Casino Complex Development Proposals, to the State and the Authority.
D. The Authority has, in accordance with sections 9 and 10 of the Casino Control Act, carried out investigations and enquiries in relation to the Company and other persons required to be investigated.
E. Upon execution of this document the Authority and the Company will enter into the Casino Agreement.
F. Subject to the terms and conditions of this document and the Casino Agreement, the Authority has agreed to grant the Casino Licence to the Company.
G. The Casino Licence will enable the Company to operate a casino from temporary premises.
H. The Minister has authority to enter into this document on behalf of the State and this document is made pursuant to section 15 of the Casino Control Act.
I. The State acknowledges that the establishment of the Melbourne Casino Complex is a large scale development project requiring significant capital expenditure and that it is necessary to provide to the Company certain assurances contained in this document and other Transaction Documents to facilitate the financing of the Melbourne Casino Complex.
J. The Company acknowledges that the establishment of the Melbourne Casino Complex and the Temporary Casino Complex is a major project for the State and that the State is reliant upon timely completion and operation of the Temporary Casino and the Melbourne Casino and accordingly certain assurances are given by the Company in this document and other Transaction Documents.
K. Certain provisions of this document are not effective unless and until this document has been ratified by Act of Parliament (as contemplated by clause 3).
AGREEMENT
1.Division into Parts
This document is divided into Parts as follows:
PART 1—PRELIMINARY
PART 2—APPROVAL OF DEVELOPMENT PROPOSALS AND CASINO LOCATION
PART 3—DEVELOPMENT
PART 4—PAYMENTS TO THE STATE
PART 5—EXCLUSIVITY
PART 6—TERMINATION
PART 7—GENERAL
PART 1—PRELIMINARY
2.Definitions
In this document, unless the context otherwise requires or the contrary intention appears, terms defined in the Casino Control Act have the same meanings and the following terms have the meanings indicated if they start with a capital letter:
"Agent" means National Australia Bank Limited ACN 004 044 937 and any successor to it as agent under the Facility Agreement;
"Agreement Act" means the bill referred to in clause 3.2(a) when that bill is passed and comes into operation as an Act of Parliament as contemplated by that clause;
"Assets and Rights" means all the present and future undertaking, property, assets and rights of or held by the Company;
"Associate" has the same meaning as in sections 10 to 17 of the Corporations Law;
"Authorisation" includes a consent, approval, licence, permit, franchise, permission, filing, registration, resolution, direction, declaration and exemption;
"Authority" means the Victorian Casino Control Authority;
"Ancillary Facilities" means all facilities ancillary to the Temporary Casino or the Melbourne Casino identified in the Melbourne Casino Complex Development Proposals or the Temporary Casino Complex Development Proposals (as the case may be) to be constructed on or located within the Temporary Casino Site or the Site, including an hotel, restaurant, retail, recreation, entertainment and carparking facilities, residential and office accommodation, staff facilities, staff carparking, coach storage facilities and open space areas;
"Bank Bill" means a Bill which has been accepted by a bank authorised under the Banking Act 1959 to carrying on banking business in Australia;
"Bank Guarantees" means the guarantees or letters of credit to be provided by the Company pursuant to clauses 18.1 and 22.9;
"Bill" has the meaning given to the expression "Bill of Exchange" in the Bills of Exchange Act 1909 (but does not include a cheque) and any reference to the drawing, acceptance or other dealing of or with a Bill has the relevant meaning set out in that Act;
"Bill Rate" means on any day the rate (expressed as a yield per annum) which is—
(a)the rate quoted as the average bill rate on the Reuters Monitor System Page "BBSY" (or any page which replaces that page) by about 10.30 a.m. (Melbourne time) on that day for Bank Bills having a tenor of one month; or
(b)if no average bill rate is published for bills of that tenor in accordance with paragraph (a), the bid rate quoted to the State by Westpac Banking Corporation on that date for the purchase of Bank Bills having a tenor of one month;
"Business Day" means a day (other than a Saturday or Sunday) on which banks (as defined in the Banking Act 1959 (Commonwealth)) are generally open for business in Melbourne;
"Casino Agreement" means the agreement between the Authority and the Company providing, among other things, for the grant of the Casino Licence;
"Casino Asset" means an asset or undertaking of the Company which forms part of the Secured Property and which consists of—
(a)the Casino Licence;
(b)the Melbourne Casino;
(c)the Temporary Casino;
(d)all gaming equipment used in the Melbourne Casino or the Temporary Casino;
(e)all revenue derived from the Melbourne Casino or the Temporary Casino (other than revenues which have been deposited or are standing to the credit of the Debt Protection Account or the Debt Service Reserve Account (each as defined in the Facility Agreement) in accordance with the Facility Agreement and any Authorised Investments (as defined in the Facility Agreement) from either of those Accounts (or the proceeds of any such Authorised Investment)); and
(f)all other assets of the Company necessary for the operation of the Melbourne Casino or the Temporary Casino;
and a reference to the "Casino Assets" includes any part of them;
"Casino Control Act" means the Casino Control Act 1991 (Victoria);
"Casino Licence" means a casino licence as defined in the Casino Control Act in relation to the Temporary Casino and the Melbourne Casino in the form of the licence set out in Schedule One to the Casino Agreement;
"Casino Supervision and Control Charge" means—
(a)for the period from the Licensing Date until 30 June 1994, $5 000 000; and
(b)for each Financial Year from 1 July 1994 until 30 June 1997, $5 000 000;
"Commissioning" means the checking, testing and acceptance of the operational readiness of and the procedures for the various components of the Melbourne Casino Complex or the Temporary Casino Complex as the case may be (including all staff, facilities and equipment);
"Completion" means the completion of the construction, the Fit-Out and the Commissioning of the Temporary Casino, the Temporary Casino Complex, the Melbourne Casino or the Melbourne Casino Complex, as the case may be, to a state of operational readiness which complies with the Completion Standards, as determined pursuant to clause 15, and "Complete" and "Completed" have corresponding meanings;
"Completion Date" means (subject in each case to clause 16)—
(a)in relation to the Temporary Casino, the day immediately following the expiration of 34 weeks from the Licensing Date or such later date as is agreed by the State's Nominated Representative;
(b)in relation to the Temporary Casino Complex, the day immediately following the expiration of 34 weeks from the Licensing Date or such later date as is agreed by the State's Nominated Representative;
(c)in relation to the Melbourne Casino, the day immediately following the expiration of 143 weeks from the Licensing Date or such later date as is agreed by the State's Nominated Representative; and
(d)in relation to the Melbourne Casino Complex, the day immediately following the expiration of 143 weeks from the Licensing Date or such later date as is agreed by the State's Nominated Representative;
"Completion Standards" means—
(a)for construction of the Melbourne Casino, the Melbourne Casino Complex, the Temporary Casino or the Temporary Casino Complex when—
(i)a certificate of occupancy is issued by the responsible authority;
(ii)the Melbourne Casino, the Melbourne Casino Complex, the Temporary Casino or the Temporary Casino Complex is fit for use by the Company;
(iii)the Fit-Out and Commissioning has been completed in accordance with the requirements of this document; and
(iv)all other requirements under this document have been complied with; and
(b)in respect of the Melbourne Casino or the Temporary Casino, when a certificate is issued by the Authority pursuant to clause 20 of the Casino Agreement;
"Construction Agreement" means the proposed building agreement between the Company and a proposed builder substantially in the form of the draft agreement a copy of which has been signed on behalf of the Authority and the Company for the purposes of identification;
"Contractor' s Deed" has the meaning ascribed to that term in the Supplemental Development Agreement;
"Control Acts" means the Building Control Act 1981 and the Planning and Environment Act;
"Default Rate" means the rate set under the Penalty Interest Rates Act 1983 (Victoria) as at the date of any default;
"Deal with" means deal with property in any way (other than enter into an arm' s length agreement to sell dependent for effect on the State's consent) including, but not limited to, offer for sale, grant an option in respect of, create or Dispose of a right in respect of, render or permit to be subject to an Encumbrance, convert, deposit, compromise or allow a counterclaim or right of set-off to arise in respect of;
"Design and Construction Programme" means the programme for the design, documentation, construction, Fit-ut, Commissioning and Completion of the Temporary Casino Complex or the Melbourne Casino Complex (as the case may be) set out in Schedule One, as amended from time to time with the prior written approval of the State;
"Development Agreement" means the agreement dated 30 August 1993 between the Company and Hudson Conway Management Limited ACN 006 742 294 providing for the construction of the Temporary Casino Complex and the procuring of the construction of the Melbourne Casino Complex;
"Dispose of" means sell, transfer, assign, alienate, surrender, dispose of, deposit, Lease, part with possession of and enter into any agreement or arrangement to do or allow any of these things;
"Drawings" means the plans, designs and working drawings relating to the Temporary Casino Complex or the Melbourne Casino Complex (as the case may be) provided by the Company and described in Schedule Two;
"Encumbrance" means a mortgage, charge, pledge, lien, assignment, hypothecation, retention of title (other than a retention of title in respect of trading stock), or any other right (including, without limitation, under a trust, agency, hire purchase, sale and repurchase, sale and leaseback or flawed asset arrangement) of a creditor to have its claims satisfied prior to other creditors with, or from the proceeds of or by recourse to any asset, and includes any agreement, arrangement or document conferring such a right or having substantially the same economic effect;
"Extension Event" has the meaning given in clause 16.8;
"Facility Agreement" means the $300 000 000 multi-option facility agreement dated 30 August 1993 between the Company, the Financiers and the Agent;
"Finance Documents" means the Facility Agreement and the Financiers' Securities;
"Financial Year" means from 1 July to 30 June (inclusive);
"Financiers" means the National Australia Bank Limited, Australia and New Zealand Banking Group Limited, Hongkong Bank of Australia Limited, R & I Bank of Western Australia Limited and State Bank of New South Wales Limited and their successors, assigns and substitutes;
"Financiers' Securities" means the following securities given to the Agent as agent for the Financiers—
(a)a first registered fixed and floating charge over the undertaking and all the assets of the Company including a mortgage over the Casino Licence;
(b)a mortgage of the Site Lease and a mortgage of the Temporary Casino Leases; and
(c)each other security given to the Agent or the Financiers as security for the liabilities of the Company under the Facility Agreement;
"Fit-Out" means the application of finishing material, gaming equipment, furniture, fittings, furnishings and such other built-in and loose items required to bring any part of the Temporary Casino Complex or the Melbourne Casino Complex (as the case may be) to a stage to enable Commissioning to take place;
"Fixed and Floating Charge" means the second registered fixed and floating charge of 30 August 1993 by the Company in favour of the Minister on behalf of the State;
"Force Majeure Event" means any explosion, earthquake, natural disaster, Government Action, sabotage, act of a public enemy, war (declared or undeclared) or revolution which causes or results in delay in the performance by a party of any of its obligations under this document where the event, circumstance, default or delay could not have been prevented, overcome or remedied by the exercise by the affected party of a standard of care and diligence consistent with that of a prudent, experienced and competent person including but not limited to the expenditure of all reasonable sums of money, but does not include—
(a)fire or flood;
(b)lightning, storm, hurricane or other action of the elements;
(c)strikes, lockouts, industrial disputes, labour disputes, industrial difficulties, labour difficulties, work bans, blockages, picketing action, secondary boycotts or any other labour action or lack of action except those caused by Government Action;
(d)action or inaction by a court, government or authority, including denial, refusal or failure to grant any permit, authorisation, licence, approval or acknowledgement other than Government Action;
(e)mechanical, electrical or equipment breakdown or failure; or
(f)riot, civil commotion or blockade;
"Founding Shareholders Agreement" means the agreement dated 30 August 1993 between each Sponsor, Carlton and United Breweries Limited ACN 004 056 106 and the Company providing for the subscription for Shares by the Sponsors and Carlton and United Breweries Limited;
"Further Amendment Act" means the bill referred to in clause 3.2(b) when that bill is passed and comes into operation as an Act of Parliament as contemplated by that clause;
"Government Action" means—
(a)any breach by the State or the Authority of any obligation or duty arising under the Casino Control Act or any Transaction Document;
(b)any negligent act or omission or any default or delay by a Government Authority in the exercise of its rights, powers, privileges or discretions conferred on it by law directly in connection with any matter arising under the Casino Control Act or any Transaction Document; or
(c)any combination of any of the activities in each of (a) or (b) above;
other than any of the activities described in (a) to (c) above in this definition which occur in circumstances where the State or Government Authority, as the case may be, acts in good faith—
(i)in satisfying a conflicting obligation or duty arising under the Casino Control Act or any Transaction Document;
(ii)in exercising a conflicting right, power, privilege or discretion conferred on it by law; or
(iii)in pursuing a matter which is in the public interest;
and for the purposes of this definition of "Government Action" "delay by a Government Authority" means a delay by a Government Authority which, having regard to the workloads and usual practices and procedures of that Government Authority, would be considered extraordinary;
"Government Authority" means—
(a)the Parliament of the State;
(b)the Governor of the State whether or not acting in Council;
(c)any minister of the State (including the Minister), department or official administering power or authority (other than judicial or quasi judicial power) under any State law which regulates any of the matters contemplated in any Transaction Document;
(d)the relevant authority under the Local Government Act 1989 having jurisdiction over the Site or the Temporary Casino Site;
"Gross Gaming Revenue" means the total of all sums, including cheques and other negotiable instruments whether collected or not, received in any period by the Company from the conduct or playing of games within the Temporary Casino or the Melbourne Casino (as the case may be) less the total of all sums paid out as winnings during that period in respect of such conduct or playing of games;
"Lease" means an agreement or arrangement under which property is or may be used, occupied, retained, operated or managed by a person for consideration (of whatever form) including, but not limited to, a lease, licence, charter, hire purchase or hiring arrangement;
"Licensing Date" means the date which is 2 Business Days after the conditions precedent in clause 5.1 are satisfied;
"Licensing Payment Amounts" means the amounts payable by the Company under clause 21.1;
"Master Security Agreement" means the agreement between the State, the Authority, the Company, the Agent and the Sponsors relating, among other things, to the priority of the Financiers' Securities and the Fixed and Floating Charge;
"Melbourne Casino" means those areas identified in the Drawings of the Melbourne Casino Complex as the areas which constitute a casino and includes the areas in which money counting, surveillance, storage and other activities related to the conduct and playing of games are carried on;
"Melbourne Casino Complex" means the Melbourne Casino and Ancillary Facilities to be constructed on or located within the Site in accordance with the provisions of this document and the Casino Agreement;
"Melbourne Casino Complex Development Proposals" means the proposals of the Company in relation to the construction, development and establishment of the Melbourne Casino Complex, a copy of which has been signed on behalf of the Authority and the Company for the purposes of identification;
"Minister" means the Minister for the time being administering the Casino Control Act;
"Mortgagee" means any person other than the State with any Encumbrance (whether as mortgagee, chargee or otherwise) affecting or in relation to the Assets and Rights of the Company;
"Operations Agreement" means the agreement dated 30 August 1993 between the Company and Crown Management Pty Ltd ACN 059 301 610 providing for the conduct of the operations of the Temporary Casino and the Melbourne Casino;
"Permitted Encumbrance" means an encumbrance permitted under clause 29.1 of the Casino Agreement;
"Planning Amendments" means the planning scheme amendments referred to in clause 9;
"Planning and Environment Act" means the Planning and Environment Act 1987 (Victoria);
"Premium Payment" means $10 000 000 being the amount determined by the Treasurer of the State under section 112A of the Casino Control Act as the amount payable by the Company under this document;
"Public Authority" means any government or minister or any governmental, semi-governmental or judicial entity, department, instrumentality or authority;
"Receiver" means receiver, receiver and manager or agent for a mortgagee in possession, according to the nature of the appointment;
"Secured Property" means at any time, any present or future right, property or undertaking of the Company, (other than an amount which has been deposited to, or which is standing to the credit of, the Debt Service Reserve Account or the Debt Protection Account (each as defined in the Facility Agreement) and any Authorised Investment (as defined in the Facility Agreement) from either of those Accounts (or the proceeds of any such Authorised Investment)) of whatever kind or wherever situated which is subject at that time to both—
(a)the Fixed and Floating Charge; and
(b)any one or more of the Financiers' Securities;
and a reference to "Secured Property" includes any part of it;
"Share" means a fully paid ordinary share of $0.50 in the capital of the Company;
"Site" means that part of the land bounded by the Yarra River, Clarendon Street, Whiteman Street and Queensbridge Street in the City of South Melbourne and more particularly described as part of Crown Allotments 58D and 58E, County of Bourke, Parish of Melbourne South, City of South Melbourne, as identified in the draft Plan of Survey annexed as Schedule Three;
"Site Lease" means the lease of the Site from the Minister for Finance on behalf of the State to the Company;
"Site Lease Supplemental Agreement" means the agreement between the Minister for Finance on behalf of the State, the Company and the Agent;
"Sponsors" mean Hudson Conway Limited ACN 009 556 629 and The Federal Hotels Limited ACN 004 108 249;
"Sponsor's Guarantees" means the guarantees by Hudson Conway Limited in favour of the Authority and in favour of the State;
"State" means the State of Victoria;
"State's Nominated Representative" means the person appointed from time to time under clause 6.4;
"Supplemental Development Agreement" means the agreement between the State, the Company, the Sponsors and Hudson Conway Management Limited ACN 006 742 294 which is supplemental to the Development Agreement;
"Supplemental Operations Agreement" means the agreement between the Authority, the Company, the Sponsors and Crown Management Pty Ltd ACN 059 301 610 which is supplemental to the Operations Agreement;
"Supplemental Sponsors' Agreement" means the agreement between the Authority, the Company and the Sponsors which is supplemental to the Founding Shareholders Agreement;
"Temporary Casino" means those areas identified in the Drawings of the Temporary Casino Complex as the areas which constitute a casino and includes the areas in which money counting, surveillance, storage and other activities related to the conduct and playing of games are carried on;
"Temporary Casino Complex" means the Temporary Casino and Ancillary Facilities to be constructed on or located within the Temporary Casino Site in accordance with the provisions of the Casino Agreement;
"Temporary Casino Complex Development Proposals" means the proposals of the Company in relation to the construction, development and establishment of the Temporary Casino Complex a copy of which has been signed on behalf of the Authority and the Company for the purposes of identification;
"Temporary Casino Leases" means—
(a)the lease from the Port of Melbourne Authority to the Company; and
(b)the sub-lease between the Urban Land Authority, Allco Nominees (Vic) Pty Ltd ACN 006 837 289 and the Company;
"Temporary Casino Leases Supplemental Agreements" means—
(a)the agreement between the Port of Melbourne Authority, the Company and the Agent; and
(b)the Temporary Casino Sub-lease Supplemental Agreement;
"Temporary Casino Site" means that part of the World Trade Centre on the land bounded by Spencer Street, Flinders Street Extension and the River Yarra identified in the Plan of Survey annexed to the lease referred to in paragraph (a) of the definition of Temporary Casino Leases;
"Temporary Casino Sub-lease Supplemental Agreement" means the agreement between the Urban Land Authority, Allco Nominees (Vic) Pty Ltd ACN 006 837 289, the Company and the Agent;
"Transaction Document" means each of this document, the Casino Agreement, the Casino Licence, the Site Lease, the Temporary Casino Leases, the Fixed and Floating Charge, the Sponsor' s Guarantees, the Master Security Agreement, the Site Lease Supplemental Agreement, the Temporary Casino Leases Supplemental Agreements, the Supplemental Sponsors' Agreement, the Supplemental Development Agreement, the Contractor' s Deed, the Bank Guarantees and the Supplemental Operations Agreement;
"Underwriting Agreement" means both the underwriting agreements of 13 August 1993 and 23 August 1993 between the Company, E. L. & C. Baillieu Limited ACN 006 519 393, Rothschild Australia Securities Limited ACN 008 591 768, Macquarie Underwriting Limited ACN 001 374 572, Ord Minnett Securities Limited ACN 003 245 234, James Capel Australia Limited ACN 002 786 272 and the Sponsors; and
"Warranties" means the representations and warranties of the Company set out in Schedule Four.
3.Operation of provisions
3.1This clause and clauses 2, 4, 5, 9 and 25 40 (inclusive) commence on the date of this document.
3.2Following satisfaction or waiver of the conditions in clauses 5.1(a) (except for the execution of the Construction Agreement, the Contractor' s Deed, the Site Lease and the Site Lease Supplemental Agreement) a minister of the State must—
(a)introduce and sponsor in the Parliament of Victoria a bill to ratify this document and endeavour to secure its passage as an Act prior to 31 December 1993; and
(b)introduce and sponsor in the Parliament of Victoria a bill contiguous to the bill referred to in paragraph (a) to amend the Casino Control Act and endeavour to secure its passage as an Act prior to 31 December 1993.
3.3The provisions of this document other than those referred to in clause 3.1 will come into operation on the day on which all of the conditions precedent in clause 5.1 are satisfied.
3.4If by 31 December 1993 or such later date as may be agreed by the parties in writing those parts of the Agreement Act and the Further Amendment Act which relate to the construction, Fit-Out, Commissioning, Completion and operation of the Melbourne Casino Complex and the Temporary Casino Complex each in the form and substance reasonably satisfactory to the Company to enable the Company to comply with its obligations under the Transaction Document have not come into operation, this document will terminate.
3.5Unless termination under clause 3.4 arose because of a failure to satisfy the conditions in clause 5.1(a) or (b), following that termination neither party shall have any claim against the other with respect to any matter or thing antecedent to or arising out of or done, performed or omitted to be done or performed under this document.
4.Variation
4.1Subject to clauses 4.2 and 4.3, the parties may from time to time by agreement in writing vary any provision of this document.
4.2A minister of the State must introduce and sponsor a bill in the Parliament of Victoria to ratify any agreement made pursuant to clause 4.1 as soon as reasonably practicable following its execution.
4.3The provisions of any agreement made pursuant to clause 4.1 shall come into operation once the bill referred to in clause 4.2 has come into operation as an Act.
4.4Clauses 4.2 and 4.3 shall not apply to the giving of a waiver, a failure of a party to require full or part performance of an obligation or the granting of or agreement to an extension of time under this document.
5.Conditions precedent
5.1This document (other than clauses 2, 4, 5, 9 and 25 40 (inclusive)) is subject to the satisfaction or waiver by the parties, as conditions precedent, of all of the following conditions—
(a)the execution of—
(i)the Transaction Documents except for the Casino Licence and the Bank Guarantees;
(ii)the Finance Documents;
(iii)the Development Agreement;
(iv)the Operations Agreement;
(v)the Construction Agreement;
(vi)the Founding Shareholders Agreement;
(vi)the Underwriting Agreement;
(vii)the Equity Funding Agreement (Federal)—as defined in the Casino Agreement;
(viii)the Shareholders Agreement—Crown Management Pty Ltd as defined in the Casino Agreement; and
(ix)the Guarantee and Indemnity for Development Agreement as defined in the Casino Agreement;
(b)each of the conditions precedent in each document referred to in paragraph (a) being satisfied other than—
(i)conditions precedent contained in paragraphs (14), (15), and (28) of Part 1 of Appendix A to and clause 4.2 of the Facility Agreement and those conditions precedent in Appendix A to the Facility Agreement that are factual or procedural matters that cannot be satisfied until the time of drawdown; and
(ii)the issue of the Casino Licence;
(c)approval of the Planning Amendments; and
(d)the coming into operation of those parts of the Agreement Act and the Further Amendment Act which relate to the construction, Fit-Out, Commissioning, Completion and operation of the Melbourne Casino Complex and the Temporary Casino Complex each in the form and substance reasonably satisfactory to the Company to enable the Company to comply with its obligations under the Transaction Documents.
5.2Subject to clause 5.3, if all of the conditions in clause 5.1 are not satisfied or waived on or before 31 December 1993 or such later date agreed by the parties in writing, then either party may terminate this document by notice in writing to the other party.
5.3A party cannot exercise the right of termination referred to in clause 5.2 where any of the conditions in clause 5.1 remain unsatisfied due to an act or omission of that party.
PART 2—APPROVAL OF DEVELOPMENT PROPOSALS AND CASINO LOCATION
6.Design and planning objectives
6.1The parties acknowledge that the Melbourne Casino Complex Development Proposals and the Temporary Casino Complex Development Proposals and the Drawings describe the Company' s proposals for the design, development, construction, Fit-Out and Commissioning of the Melbourne Casino Complex and the Temporary Casino Complex.
6.2The Company must develop the Melbourne Casino Complex and the Temporary Casino Complex in accordance with the requirements of this document and the Casino Agreement.
6.3The Company acknowledges that it is required to obtain approvals under the Control Acts and otherwise comply with the Control Acts.
6.4The State shall procure that the minister for the time being administering the Planning and Environment Act appoints a person who will represent the persons responsible for the granting of approvals under or otherwise administering the Control Acts.
6.5The Company may deliver all documents and other information required to obtain approvals or to otherwise comply with the Control Acts to the State's Nominated Representative.
6.6The State's Nominated Representative shall use its best endeavours to procure the making of all decisions required to be made under the Control Acts in respect of the obligations of the Company under clause 6.2.
6.7The State shall procure that the State's Nominated Representative complies with the obligations of the State's Nominated Representative under the Casino Agreement.
7.Approval of the casino site
The State approves—
(a)the Site as the site upon which the Melbourne Casino Complex will be developed in accordance with the Melbourne Casino Complex Development Proposals, the relevant Planning Amendments and the requirements of this document and the Casino Agreement; and
(b)the Temporary Casino Site as the site upon which the Temporary Casino Complex will be developed in accordance with the Temporary Casino Complex Development Proposals, the relevant Planning Amendments and the requirements of this document and the Casino Agreement.
8.Identification of casino
On and subject to the provisions of this document and the Casino Agreement, the State approves of the grant by the Authority to the Company of the Casino Licence which provides for a casino to be located at the Temporary Casino and then at the Melbourne Casino.
9.Zoning
9.1The Minister will recommend to the minister administering the Planning and Environment Act that a planning scheme amendment be prepared, adopted and approved by the minister administering the Planning and Environment Act to allow the use and development of the Site for the purposes of the Melbourne Casino Complex generally in accordance with the Melbourne Casino Complex Development Proposals.
9.2The Minister will recommend to the minister administering the Planning and Environment Act that a planning scheme amendment be prepared, adopted and approved by the minister administering the Planning and Environment Act to allow the use and development of the Temporary Casino Site for the purposes of the Temporary Casino Complex generally in accordance with the Temporary Casino Complex Development Proposals.
9.3Section 38 of the Planning and Environment Act will not apply to the Planning Amendments.
9.4Clause 9.3 will not apply if the Planning Amendments are approved prior to the beginning of the 1993 Spring Parliamentary session.
PART 3—DEVELOPMENT
10.Development conditions
10.1The Company must—
(a)Construct, Fit-Out, Commission and Complete the Melbourne Casino Complex in accordance with—
(i)the Melbourne Casino Complex Development Proposals, the Drawings and the further working drawings and specifications provided to the State and the Authority together with any approved variations;
(ii)the Design and Construction Programme;
(iii)the Planning Amendments; and
(iv)the terms of this document and the Casino Agreement;
(b)Complete the Melbourne Casino by the Completion Date; and
(c)Complete the Melbourne Casino Complex by the Completion Date.
10.2The Company must—
(a)Construct, Fit-Out, Commission and Complete the Temporary Casino Complex in accordance with—
(i)the Temporary Casino Complex Development Proposals, the Drawings and the further working drawings and specifications provided to the State and the Authority together with any approved variations;
(ii)the Design and Construction Programme;
(iii)the Planning Amendments; and
(iv)the terms of this document and the Casino Agreement;
(b)Complete the Temporary Casino by the Completion Date; and
(c)Complete the Temporary Casino Complex by the Completion Date.
11.Documents to be submitted to the State's Nominated Representative
11.1The Company must provide to the State's Nominated Representative for the approval or otherwise of the State's Nominated Representative—
(a)within 12 weeks following the Licensing Date, such drawings, specifications and other documents as are required by the State's Nominated Representative so that the State's Nominated Representative may be satisfied that the Melbourne Casino Complex and the Temporary Casino Complex will be Completed in accordance with this document; and
(b)within 12 weeks following the Licensing Date, an itemised Design and Construction Programme for all phases of the development of the Melbourne Casino Complex and the Temporary Casino Complex up to and including Completion.
11.2On the first Business Day of each month the Company must provide to the State's Nominated Representative a report in a form satisfactory to the State's Nominated Representative as to the progress of construction of the Melbourne Casino Complex and the Temporary Casino Complex.
12.Approvals
12.1Where the Company submits documents to the State's Nominated Representative under clause 11.1, the State's Nominated Representative may—
(a)approve the documents;
(b)approve the documents subject to any reasonable condition or conditions the State's Nominated Representative decides to impose;
(c)require amendment to the documents as specified by the State's Nominated Representative; or
(d)reject the documents.
12.2Where the Company submits documents to the State's Nominated Representative, the State's Nominated Representative must respond in writing to the Company in the manner contemplated within 14 days of receiving the documents or proposal from the Company or such further period agreed between the State's Nominated Representative and the Company.
12.3If the State's Nominated Representative has not responded in writing to the Company as required within 14 days or such further period as agreed the State's Nominated Representative will be taken to have given its approval.
12.4In exercising any powers under clauses 12, 15 and 18 the State's Nominated Representative must not act unreasonably and have regard to the contents of the Melbourne Casino Complex Development Proposals, the Temporary Casino Complex Development Proposals and the Planning Amendments.
12.5Subject to the rights, obligations or powers of the State or the State's Nominated Representative under the Control Acts and this document including without limitation the obligations of the Company under clause 13, the State's Nominated Representative will not impose conditions or amendments which have the effect of substantially increasing the cost to Complete the Temporary Casino, the Temporary Casino Complex, the Melbourne Casino or the Melbourne Casino Complex from the cost to develop, design and construct set out in the Melbourne Casino Complex Development Proposals and the Temporary Casino Development Proposals.
13.Quality
13.1The Company must ensure that all materials, fittings, equipment and workmanship utilised in carrying out the construction of the Melbourne Casino Complex—
(a)are of a quality commensurate with an international class casino complex;
(b)comply with standards specified in the Melbourne Casino Complex Development Proposals; and
(c)comply with the provisions of the Building Control Act 1981 (Victoria) and the Building Code of Australia relevant to the materials, fittings, equipment or workmanship.
13.2The Company must ensure that all materials, fittings, equipment and workmanship utilised in carrying out the construction of the Temporary Casino Complex—
(a)are of a quality commensurate with the proposed use of the Temporary Casino Site, the nature of the premises on the Temporary Casino Site and the proposed term of occupation of the Temporary Casino Site by the Company;
(b)comply with standards specified in the Temporary Casino Complex Development Proposals; and
(c)comply with the provisions of the Building Control Act 1981 (Victoria) and the Building Code of Australia relevant to the materials, fittings, equipment or workmanship.
13.3The builder to be appointed by the Company in relation to the construction of the Melbourne Casino Complex or the Temporary Casino Complex, as the case may be, must be approved in writing by the State's Nominated Representative prior to the builder' s appointment.
14.Provision of services
The Company must—
(a)pay to the State or, as the case may be, the instrumentality of the State concerned, the costs incurred in carrying out any works necessary to provide services or change existing services, including without limitation, water, sewerage, drainage, electricity and gas, to the Site and the Melbourne Casino Complex; or
(b)if required by the State or the relevant instrumentality, carry out such works at the Company' s cost and in accordance with all directions of the State or instrumentality.
15.Completion
15.1The Company must give not less than 7 Business Days notice in writing to the State's Nominated Representative that the Company anticipates that the Temporary Casino, the Temporary Casino Complex, the Melbourne Casino or the Melbourne Casino Complex, as the case may be, ("Relevant Works") will be Completed on the date specified in the notice.
15.2On the date agreed between the Company and the State's Nominated Representative (and if no date is agreed, then on the date specified in the Company' s notice under clause 15.1) the State's Nominated Representative must inspect the Relevant Works and consider all matters relevant to the Completion of the Relevant Works.
15.3If the State's Nominated Representative is of the opinion that the Relevant Works are not Completed, the State's Nominated Representative must within 10 Business Days of the inspection under clause 15.2 give notice to the Company of this opinion and state in that notice the reason or reasons why the State's Nominated Representative is of this opinion.
15.4If the State's Nominated Representative is of the opinion that the Relevant Works are Completed, the State's Nominated Representative must within 10 Business Days of the inspection under clause 15.2 issue a certificate to the Company stating the date on which it believes those Relevant Works reached Completion and those Relevant Works shall, for the purpose of this document, be taken to have been Completed on that date.
15.5Upon receipt of a notice from the State's Nominated Representative under clause 15.3, the Company must immediately attend to any matters stated in the notice as requiring attention and upon the Company attending to these matters the Company must give a further notice in writing to the State's Nominated Representative pursuant to clause 15.1.
15.6Any determination by the State's Nominated Representative that any Relevant Works have been Completed is not acceptance that the Company has complied with the Transaction Documents and any right which the State or the State's Nominated Representative may have had prior to that determination is preserved absolutely.
15.7If the State's Nominated Representative does not deliver a notice to the Company under clause 15.3 or a certificate under clause 15.4 within the period of 10 Business Days referred to in those clauses, the Relevant Works will be taken to have been Completed on the date on which those Relevant Works were inspected under clause 15.2 and a certificate of Completion will be taken to have been issued by the State's Nominated Representative with a date of Completion on that date.
15.8A certificate of Completion under clause 15 does not excuse the Company from compliance with all relevant legislation in relation to the Relevant Works.
16.Force Majeure
16.1Provided the Company complies with clause 16.2, the performance by the Company of the terms and conditions of this document relating to the design, development, construction, Fit-Out, Commissioning and Completion of the Temporary Casino, the Temporary Casino Complex, the Melbourne Casino or the Melbourne Casino Complex, as the case may be, is subject to any Force Majeure Event which interferes with the performance of those terms and conditions.
16.2The Company must—
(a)immediately give notice to the State's Nominated Representative of—
(i)a Force Majeure Event and its nature;
(ii)the actual or likely extent and effect of the Force Majeure Event on the Company' s performance of its obligations in relation to the matters referred to in clause 16.1;
(iii)the likely duration of the Force Majeure Event;
(b)meet with the State's Nominated Representative within 2 Business Days of receipt of a request from the State's Nominated Representative to discuss the Force Majeure Event and attempt to determine what action if any may be taken to ameliorate, remedy or overcome the Force Majeure Event; and
(c)use its best endeavours—
(i)to minimise the effect of that Force Majeure Event as soon as possible after the occurrence; and
(ii)to prevent, overcome or remedy any delay which would or might otherwise be caused by a Force Majeure Event,
including if necessary by the commitment of additional resources.
16.3If the Company complies with clause 16.2, the State's Nominated Representative will by notice in writing to the Company extend the relevant Completion Date to a date to be specified by the State's Nominated Representative to allow for any delay caused by the Force Majeure Event and the Company will not be liable to the State for any delay in the Completion of the Temporary Casino, the Temporary Casino Complex, the Melbourne Casino or the Melbourne Casino Complex (as the case may be) for the period from the Completion Date until the new Completion Date specified by the State's Nominated Representative.
16.4If an Extension Event occurs which is not a Force Majeure Event but which delays the performance by the Company of any of the terms and conditions of this document relating to the design, development, construction, Fit-Out, Commissioning or Completion, the relevant Completion Date shall be extended by the period it would take a reasonable person acting diligently to overcome or remedy the delay, provided that the Company—
(a)as soon as reasonably practicable after becoming aware of the occurrence of the event gives notice to the State of—
(i)the event and its nature;
(ii)the actual or likely extent and effect of the event on Completion; and
(iii)the likely delay to Completion; and
(b)pays Liquidated Damages to the State in accordance with clause 17.2.
16.5The cessation of casino operations by the Company at the Temporary Casino after the Completion of the Temporary Casino caused directly or indirectly by an Extension Event which results in the physical destruction of all or a material part of the Temporary Casino shall not be a contravention of a condition of the Casino Licence or any Transaction Document provided that the Company—
(a)as soon as reasonably practicable after becoming aware of the occurrence of the Extension Event gives notice to the State of—
(i)the Extension Event and its nature;
(ii)the actual or likely extent and effect of the Extension Event on the operations of the Temporary Casino; and
(iii)the likely duration of the cessation of operations of the Temporary Casino;
(b)commences reinstatement of the Temporary Casino within 3 months of the date of the cessation of the Extension Event; and
(c)if paragraph (b) applies, the Company is diligently proceeding with the construction of the reinstatement of the Temporary Casino;
provided that paragraphs (b) and (c) shall apply subject to any requirements or actions of the lessors or sub-lessors under the Temporary Casino Leases, the relevant insurers, or any authorities and if it is practicable and permitted by each relevant lessor or sub-lessor and each other applicable authority for the Company to reinstate or attempt to reinstate the Temporary Casino.
16.6The cessation of casino operations by the Company at the Melbourne Casino after the Completion of the Melbourne Casino caused by an Extension Event which results in the physical destruction of all or a material part of the Melbourne Casino shall not be a contravention of a condition of the Casino Licence or any Transaction Document provided that—
(a)as soon as reasonably practicable after becoming aware of the occurrence of the Extension Event the Company gives notice to the State of—
(i)the Extension Event and its nature;
(ii)the actual or likely extent and effect of the Extension Event on the operations of the Melbourne Casino; and
(iii)the likely duration of the cessation of operations of the Melbourne Casino;
(b)if requested by the State within 1 month of the occurrence of the Extension Event, the Company must submit a proposal to the State within 3 months of the State's request for the construction of a replacement temporary casino ("Replacement Temporary Casino");
(c)if the Company, the State and the Financiers have agreed, as contemplated in clause 16.7, on the basis for the construction of the Replacement Temporary Casino, the Company completes the construction of the Replacement Temporary Casino within the time periods agreed in relation thereto; and
(d)the Company commences reinstatement of the Melbourne Casino within 12 months of the date of the cessation of the Extension Event, subject to any requirements of the relevant insurers or any authorities, and diligently pursues a course of action which will reasonably be expected to reinstate the Melbourne Casino in a period of time reasonably acceptable to the State and is making satisfactory progress in the reinstatement.
16.7The Company, the State and the Financiers shall consult in good faith in relation to the Company's proposal submitted under clause 16.6(b) to agree on the terms for the establishment and operation of the Replacement Temporary Casino including—
(a)the site of the Replacement Temporary Casino;
(b)the size, features and specifications of the Replacement Temporary Casino;
(c)the amendments to the Transaction Documents and the additional documents necessary (including the issue of a new casino licence under the Casino Control Act);
(d)all planning and zoning approvals, permits and requirements;
(e)any extensions of the exclusivity periods for the Casino Licence; and
(f)the cost of the Replacement Temporary Casino and the funding of those costs.
16.8For the purposes of this document—
(a)"Extension Event" means—
(i)a Force Majeure Event;
(ii)a Labour Dispute where the Labour Dispute could not have been prevented, overcome or remedied by the exercise by the affected party of a standard of care and diligence consistent with that of a prudent, experienced and competent person; or
(iii)any other event or circumstance which causes disruption, illegality or physical damage and which is outside the control of the Company and has not been directly or indirectly caused by an act or omission of the Company;
(b)"Labour Dispute" means a strike, lockout, industrial dispute, labour dispute, industrial difficulty, labour difficulty, work ban, blockage, picketing action, secondary boycott or any other labour action or lack of action.
16.9(a) The Company agrees that the proceeds of any insurance policy for business interruption insurance taken out by or on behalf of the Company will, on receipt by the Company, be paid to the State in compensation to the State for the loss of fees and taxes calculated for a period in accordance with paragraph (b) and otherwise to the Agent in respect of moneys owing to the Financiers under the Finance Documents.
(b) adversely impacting the earnings before interest, taxes, depreciation and amortisation ("EBITDA") of the Company by:
(i)reducing any maximum bets on Table Games, Semi Automated Table Games and Fully Automated Table Games or gaming machines (except where all other Australian State and Territory Governments have taken substantially the same action or series of actions);
(ii)removing, reducing in number or amending or restricting the then current manner in which gaming machines in unrestricted mode within the Melbourne Casino are permitted to operate;
(iii)removing, reducing in number or restricting or amending the then current manner in which Automated Teller Machines are permitted to operate within the Melbourne Casino Complex (except where all other Australian State and Territory Governments have taken substantially the same action or series of actions);
(iv)introducing any form of mandatory pre-commitment other than the requirement for players of gaming machines operating in unrestricted mode to set time and net loss limits using the state-wide pre-commitment system (except where all other Australian State and Territory Governments have introduced mandatory pre-commitment with a similar effect); or
(v)restricting or amending the then current manner in which the Company’s loyalty scheme is permitted to operate (except where all other Australian State and Territory Governments have taken substantially the same action or series of actions).
(each such action or series of actions is a "Trigger Event")
2. Methods of Calculating Compensation - Trigger Events
2.1 Calculation of Compensation
In the event of a Trigger Event, subject to the rest of this clause 2, the Company will be entitled to compensation, calculated as follows:
C = (M x A)
Where:
C is the amount of compensation;
A is the annualised negative impact on the EBITDA of the Company (normalised for a theoretical win rate of 1.35% applied to turnover of Commission Based Players) as a result of the Trigger Event; and
M is the multiple applicable at the time the relevant action or the first action in a relevant series of actions by the State or the Authority (or State authority or State body) occurred as set out in the table below:
Financial Year
Multiple (M)
FY15 to FY30 (inclusive)
10.5
FY31
10.0
FY32
9.5
FY33
9.0
FY34
8.5
FY35
8.0
FY36
7.5
FY37
7.0
FY38
6.5
FY39
6.0
FY40
5.5
FY41
5.0
FY42
4.5
FY43
4.0
FY44
3.5
FY45
3.0
FY46
2.5
FY47
2.0
FY48
1.5
FY49
1.0
FY50
0.5
2.2 Cap on compensation
(a) In respect of all Trigger Events occurring in any term of a Victorian Government ("Term") the amount of compensation (C) will not exceed the cap determined in accordance with paragraph (b) regardless of the number or types of Trigger Events occurring in that Term.
(b) The cap for the period from the Tenth Variation Commencement Date to 30 June 2015 will be $200,000,000. On 1 July 2015 and each 1 July thereafter (each being an "Adjustment Date"), the cap will be adjusted in accordance with the formula set out below:
cap=
Where:
capis the amount of the cap on and from the Adjustment Date;
X is the CPI number published for the quarter ending immediately before the Adjustment Date;
Y is the CPI number published for the quarter ending immediately before the previous Adjustment Date or, where there is no previous Adjustment Date, the quarter ending immediately before the Tenth Variation Commencement Date;
Z is the amount of the cap calculated in accordance with this formula on the previous Adjustment Date; and
CPI number is the Consumer Price Index (All Groups for Melbourne) published by the Australian Bureau of Statistics (or any other index published in substitution for this index).
The cap will be adjusted on each Adjustment Date in accordance with this clause 2.2(b) regardless of whether, at any time prior to the Adjustment Date, a claim for compensation has been made by the Company or a payment of compensation has been made by the State.
(c) The cap that is applicable to any compensation payable in respect of a Trigger Event which occurs in a Term ("Applicable Cap") is the cap applicable at the time at which the relevant action or the first of any series of actions which constitutes that Trigger Event occurs.
(d) If the compensation paid with respect to one or more Trigger Events occurring in a Term equals the Applicable Cap, no further compensation is payable to the Company with respect to any other Trigger Event that occurs during that Term.
(e) No compensation will be payable in any Term for any action or series of actions which constitutes a Trigger Event which occurred in a prior Term and for which compensation has already been paid (or not paid as a result of the cap). However, for the avoidance of doubt, the amount of compensation payable in respect of Trigger Events which occur during a Term will not be affected by any payment of compensation made in relation to any Trigger Event which occurred during a prior Term.
(f) For the purposes of this Annexure, the Term of each Victorian Government ends when a new Victorian Government is sworn in following a Victorian general election. For the avoidance of doubt, the Company’s entitlement to compensation in relation to Trigger Events which occur in any Term will not be extinguished as a result of a change of government following a Victorian general election.
2.3 Exclusions
No compensation will be due or payable to the Company under clause 24A.3 and this Annexure 1 with respect to actions which:
(a) have an adverse impact on the Company’s EBITDA of less than $1 million per annum as assessed by the Company acting reasonably;
(b) arise directly from disciplinary action validly taken against the Company; or
(c) advertise or promote the Victorian government’s responsible gambling, responsible service of alcohol or "quit smoking" programs, provided such actions are not targeted solely at the Company.
3. Process for Determining Compensation Payable
(a) Where the Company is entitled to recover any amount (whether by payment, discount, credit or otherwise) from any third party (including from an insurer or under an indemnity or guarantee) in relation to any matter for which a claim for compensation under this Annexure 1 could be made or brought against the State by the Company, the State is nevertheless liable for that Claim (the “Relevant Claim”) but, if and to the extent the Relevant Claim is satisfied by the State, the Company must assign to the State the benefit it may receive of any proceeds, debts, claims or other actions from any third party in respect of the Relevant Claim, and otherwise hold such benefit on trust for the State, save where to do so would be contrary to or in breach of the Company's insurer's rights of subrogation.
(b) The Company is obliged to take all reasonable steps to mitigate any loss that may otherwise arise in relation to any matter or for which a claim for compensation under this Annexure 1 could be made or brought against the State by the Company.
(c) The Company will not be entitled to make a claim under this Annexure 1 to the extent it has received (or, as a result of the cap, not received) a compensation payment under this Annexure 1 in respect of the same Trigger Event.
(d) The Company agrees that any compensation payable under this Annexure 1 is the entire remedy for the occurrence of the Trigger Events which may occur and it will not seek any other remedy against the State in connection with the Trigger Events.
(e) If the Company becomes aware that a Trigger Event has occurred, the Company must promptly provide a written notice to the State which must set out in reasonable detail the Trigger Event and, at any time within 2 years from becoming aware that a Trigger Event has occurred, the Company may provide a written notice ("Compensation Notice") to the State which must state that it is a Compensation Notice under this Annexure 1 and set out in reasonable detail:
(i)the Trigger Event giving rise to the claim for compensation; and
(ii)the amount which the Company considers to be the compensation payable ("Compensation Payable") by the State to the Company in respect of the relevant Trigger Event.
(f) Within 3 months after the Company provides the Compensation Notice to the State under clause 3(e), the State must by written notice to the Company, either:
(i)accept the amount set out in the Compensation Notice as the "Compensation Payable" in which case that amount will constitute the compensation payable by the State to the Company in respect of the relevant Trigger Event; or
(ii)request from the Company such further details in relation to, or clarification of, information provided in the Compensation Notice or the methodology used to determine the amount set out in the Compensation Notices as the "Compensation Payable" as the State may reasonably require to assist the State in understanding the impact of the Trigger Event on the Company's EBITDA or the calculation of the amount set out in the Compensation Notice as the "Compensation Payable"; or
(iii)dispute the correctness of the amount set out in the Compensation Notice as the "Compensation Payable" setting out in reasonable detail:
(A)the basis on which the State disputes he amount set out in the Compensation Notice as the "Compensation Payable"; and
(B)the amount which the State considers to be the Compensation Payable or, if not precisely known, its best estimate of that amount.
(g) If the State submits a request for further details or clarification under clause 3(f)(ii):
(i)the Company must provide such further details or clarification to the extent that it can reasonably do so promptly following the request; and
(ii)within 20 Business Days of receipt of the response from the Company, the State must by written notice to the Company, either:
(A)accept the amount set out in the Compensation Notice as the "Compensation Payable", in which case that amount will constitute the compensation payable by the State to the Company in respect of the relevant Trigger Event; or
(B)dispute the correctness of the amount set out in the Compensation Notice as the "Compensation Payable".
(h) If the State does not take any of the actions required of it under and within the time frames set out in clause 3(f) and 3(g)(ii), the amount set out in a Compensation Notice as the "Compensation Payable" will constitute the compensation payable by the State to the Company in respect of the relevant Trigger Event.
(i) If the State issues a notice in accordance with clause 3(f)(iii) or 3(g)(ii)(B) (a "Compensation Dispute Notice"):
(i)the dispute must be resolved in accordance with the procedure set out in clause 3(j); and
(ii)the compensation (if any) payable by the State to the Company in respect of the relevant Trigger Event will be the amount (if any) determined in accordance with clause 3(j).
(j) If the State issues a Compensation Dispute Notice in accordance with clause 3(f)(iii) or 3(g)(ii)(B) then the following procedure will apply:
(i)Within 20 Business Days of the State giving the Compensation Dispute Notice ("Negotiation Period"), the Senior Management Representative from each of the parties must meet at least once to attempt to resolve the dispute ("Dispute").
(ii)The Senior Management Representatives may meet more than once to resolve the Dispute. The Senior Management Representatives may meet in person, via telephone, videoconference or any other agreed means of instantaneous communication to effect the meeting.
(iii)Each party warrants that its Senior Management Representative has full authority to resolve any dispute as to the compensation payable.
(iv)If the Senior Management Representatives are unable to resolve the Dispute during the Negotiation Period, the State must nominate an Expert by notice in writing to the Company within 30 Business Days from the date of expiration of the Negotiation Period ("Nomination Period").
(v)Within the Nomination Period, the Company must also nominate an Expert by notice in writing to the State.
(vi)Within 30 Business Days of the date of expiration of the Nomination Period, the Experts so nominated will endeavour jointly to determine the compensation (if any) payable in accordance with clause 3(j)(vii). The Experts must give to the parties any joint determination and their reasons in writing within that 30 Business Day period. If the experts jointly determine that compensation is payable, the written determination must set out the Experts' calculation of each component of the formula.
(vii)In determining the compensation (if any) payable, each Expert must:
(A)act as expert and not as arbitrator;
(B)have regard to the provisions of this Agreement and apply the principles set out in Annexure 1; and
(C)have regard to any written submissions made to it by the State and the Company, and either Expert may make such enquiries as it considers in its absolute discretion to be necessary or desirable.
(viii)If either the Company or the State has failed to nominate an Expert within the Nomination Period, the determination of the compensation (if any) payable will be made within 30 Business Days of the date of expiration of the Nomination Period by the sole Expert nominated by either the Company or the State as the case may be.
(ix)If the Experts are unable jointly to determine the Dispute within the period of 30 Business Days referred to in clause 3(j)(vi), then the Company and the State jointly must, within 2 Business Days of the expiry of that period, request the Law Institute of Victoria President to nominate, within 10 Business Days of the date of the request, another Expert ("Umpire") to make a final determination of the compensation (if any) payable in accordance with the following provisions of this clause 3(j).
The Umpire must give its determination and its reasons in writing within 30 Business Days of its appointment. If the Umpire determines that compensation is payable, the written determination must set out the Umpire's calculation of each component of the formula.
(x)Any determination of the Experts (or, in the circumstances contemplated by clause 3(j)(viii), the sole Expert) or the Umpire in accordance with this Annexure 1 will be final and binding on the parties in respect of the relevant Trigger Event. However, within 20 Business Days of the determination being notified to the Parties, either the Company or the State is entitled to make an application to the court for a declaration that, in reaching the determination, the Experts, the sole Expert or the Umpire, as the case may be, made an error in relation to a question of law.
(xi)If the court issues a declaration to the effect that an error has been made in relation to the relevant question of law, whichever of the Company or the State sought the declaration must immediately inform the Experts, the sole Expert or the Umpire, as the case may be, provide them with a copy of the declaration and request that they issue an updated determination, together with reasons, in writing within 20 Business Days of receiving a copy of the declaration. That updated determination will be final and binding on the parties in respect of the relevant Trigger Event.
If the updated determination is to be issued by the Experts and they are unable to agree on the determination within the period of 20 Business Days referred to above, the matter must be referred to the Umpire in accordance with clause 3(j)(ix).
(xii)If the court issues a declaration to the effect that no error has been made in relation to the relevant question of law, the original determination of the Experts, the sole Expert or the Umpire, as the case may be, will be final and binding on the parties in respect of the relevant Trigger Event.
(xiii)To the extent of any inconsistency between the terms of this Agreement and the applicable rules for expert determination published by the Law Institute of Victoria, the terms of this Agreement prevail.
(xiv)In determining the compensation (if any) payable, the Umpire:
(A)must act as expert and not as arbitrator;
(B)must have regard to the provisions of this Agreement and apply the principles set out in Annexure 1;
(C)must have due regard to any evidence submitted by the Experts appointed in accordance with clauses 3(j)(iv) and (v) as to their respective assessments of the compensation (if any) payable;
(D)must act fairly and impartially as between the parties, giving each party a reasonable opportunity to:
(I) put its case and deal with the case of the opposing Party; and
(II) make submissions on the conduct of the expert determination;
(E)subject to clauses 3(j)(xiv)(A) to 3(j)(xiv)(D), inclusive, may:
(I) proceed in any manner he or she thinks fit;
(II) conduct any investigation which he or she considers necessary to resolve the Dispute;
(III) examine such documents, and interview such persons, as he or she may require and may make such directions for the conduct of the determination as he or she considers necessary;
(F)must within 3 Business Days of nomination, disclose to the parties any:
(I) interest he or she has in the outcome of the determination;
(II) conflict of interest;
(III) conflict of duty;
(IV) personal relationship that the Umpire has with either party, or either party's representatives or Experts; and
(V) other fact, matter or thing which a reasonable person may regard as giving rise to the possibility of bias; and
within 5 Business Days of receipt of any disclosure referred to in this paragraph (F) a party may object to the Umpire. If so, the Company and the State jointly must, within a further 2 Business Days, request the Law Institute of Victoria President to nominate, within 10 Business Days of the date of the request, a replacement Umpire for the purpose of this clause 3; and
(G)must not communicate with one party without the knowledge of the other party.
(xv)Each party must do all things reasonably necessary for the proper, expeditious and cost-effective conduct of the expert determination process contemplated by this clause 3.
(k) Within 20 Business Days of the amount of compensation that is payable by the State to the Company being agreed or determined in accordance with this clause 3, the State must pay that amount to the Company in cleared funds.
(l) Except as contemplated in clause 3(m), each party must bear its own costs in complying with this clause 3.
(m)(i) Subject to paragraph (ii), the aggregate costs of the Experts (and the Umpire, if applicable) will be borne equally by the parties.
(ii)If the amount of compensation that is payable by the State is determined by an Expert, Experts or Umpire and is:
(A)more than 10% below the amount set out in the Company's Compensation Notice under clause 3(e), the Company will bear the costs of the Expert, Experts and Umpire, as applicable; or
(B)more than 10% above the amount set out in the Company's Compensation Notice under clause 3(e), the State will bear the costs of the Expert, Experts and Umpire, as applicable.
(n) Nothing in this clause 3 will prevent a party from instituting proceedings to seek urgent injunctive, interlocutory or declaratory relief in respect of a dispute as to the compensation payable.
(o) Time is of the essence of the parties' obligations under this clause 3.
═══════════════
ENDNOTES
1 General information
See for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.
Minister's second reading speech—
Legislative Assembly: 6 October 1993
Legislative Council: 11 November 1993
The long title for the Bill for this Act was "A Bill to ratify the management agreement for the Melbourne Casino, to amend the Casino Control Act 1991 and the Gaming Machine Control Act 1991 and for other purposes.".
The Casino (Management Agreement) Act 1993 was assented to on 16 November 1993 and came into operation on 16 November 1993: section 2.
INTERPRETATION OF LEGISLATION ACT 1984 (ILA)
Style changes
Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.
References to ILA s. 39B
Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.
Interpretation
As from 1 January 2001, amendments to section 36 of the ILA have the following effects:
• Headings
All headings included in an Act which is passed on or after 1 January 2001 form part of that Act. Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms. See section 36(1A)(2A).
• Examples, diagrams or notes
All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act. Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act. See section 36(3A).
• Punctuation
All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act. Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. See section 36(3B).
• Provision numbers
All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001. Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C).
• Location of "legislative items"
A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.
• Other material
Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act.
See section 36(3)(3D)(3E).
2 Table of Amendments
This publication incorporates amendments made to the Casino (Management Agreement) Act 1993 by Acts and subordinate instruments.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
Gaming and Betting Act 1994, No. 37/1994
Assent Date: 2.6.94 Commencement Date: S. 230 on 3.6.94: Special Gazette (No. 31) 2.6.94 p. 1 CurrentState: This information relates only to the provision/s amending the Casino (Management Agreement) Act 1993
Casino (Management Agreement) (Amendment) Act 1994, No. 93/1994
Assent Date: 13.12.94 Commencement Date: 13.12.94 CurrentState: All of Act in operation
Gaming Acts (Amendment) Act 1995, No. 44/1995
Assent Date: 14.6.95 Commencement Date: S. 8 on 14.6.95: s. 2(1) CurrentState: This information relates only to the provision/s amending the Casino (Management Agreement) Act 1993
Casino (Management Agreement) (Further Amendment) Act 1995, No. 89/1995
Assent Date: 5.12.95 Commencement Date: 5.12.95 CurrentState: All of Act in operation
Gaming Acts (Amendment) Act 1996, No. 17/1996
Assent Date: 2.7.96 Commencement Date: Pt 7 on 2.7.96: s. 2(1) CurrentState: This information relates only to the provision/s amending the Casino (Management Agreement) Act 1993
Casino (Management Agreement) (Amendment) Act 1996, No. 62/1996
Assent Date: 17.12.96 Commencement Date: 17.12.96: s. 2 CurrentState: All of Act in operation
Gaming No. 2 Act 1997, No. 16/1997
Assent Date: 6.5.97 Commencement Date: S. 118 on 31.3.98: s. 2(4) CurrentState: This information relates only to the provision/s amending the Casino (Management Agreement) Act 1993
Gaming Acts (Further Amendment) Act 1998, No. 90/1998
Assent Date: 24.11.98 Commencement Date: Ss 5–9 on 24.11.98: s. 2(1) CurrentState: This information relates only to the provision/s amending the Casino (Management Agreement) Act 1993
National Taxation Reform (Further Consequential Provisions) Act 2000, No. 24/2000
Assent Date: 16.5.00 Commencement Date: Ss 6–9 on 17.5.00: s. 2(1) CurrentState: This information relates only to the provision/s amending the Casino (Management Agreement) Act 1993
Casino (Management Agreement) (Amendment) Act 2002, No. 22/2002
Assent Date: 12.6.02 Commencement Date: 13.6.02: s. 2 CurrentState: All of Act in operation
Gambling Regulation Act 2003, No. 114/2003
Assent Date: 16.12.03 Commencement Date: S. 12.1.3(Sch. 6 items 2.1–2.6) on 1.7.04: Government Gazette 1.7.04 p. 1843 CurrentState: This information relates only to the provision/s amending the Casino (Management Agreement) Act 1993
Casino Control (Amendment) Act 2005, No. 47/2005
Assent Date: 24.8.05 Commencement Date: Ss 8–12 on 25.8.05: s. 2 CurrentState: This information relates only to the provision/s amending the Casino (Management Agreement) Act 1993
Casino Legislation Amendment Act 2009, No. 84/2009
Assent Date: 15.12.09 Commencement Date: Ss 5–8 on 16.12.09: s. 2(1) CurrentState: This information relates only to the provision/s amending the Casino (Management Agreement) Act 1993
Victorian Commission for Gambling and Liquor Regulation Act 2011, No. 58/2011
Assent Date: 2.11.11 Commencement Date: Ss 99–101 on 6.2.12: Special Gazette (No. 423) 21.12.11 p. 4 CurrentState: This information relates only to the provision/s amending the Casino (Management Agreement) Act 1993
Statute Law Revision Act 2013, No. 70/2013
Assent Date: 19.11.13 Commencement Date: S. 3(Sch. 1 item 5) on 1.12.13: s. 2(1) Current State: This information relates only to the provision/s amending the Casino (Management Agreement) Act 1993
Casino and Gambling Legislation Amendment Act 2014, No. 73/2014
Assent Date: 21.10.14 Commencement Date: Ss 5–8 on 22.10.14: s. 2 Current State: This information relates only to the provision/s amending the Casino (Management Agreement) Act 1993
Casino and Gambling Legislation Amendment Act 2021, No. 54/2021
Assent Date: 14.12.21 Commencement Date: Ss 29–31, 40 on 1.1.22: Special Gazette (No. 733) 21.12.21 p. 1 Current State: This information relates only to the provision/s amending the Casino (Management Agreement) Act 1993
Casino Legislation Amendment (Royal Commission Implementation and Other Matters) Act 2022, No. 42/2022
Assent Date: 27.9.22 Commencement Date: Ss 48, 50 on 28.9.22: s. 2(1); s. 49 on 1.8.23: s. 2(3) Current State: This information relates only to the provision/s amending the Casino (Management Agreement) Act 1993
Gambling Taxation Act 2023, No. 14/2023
Assent Date: 6.6.23 Commencement Date: Ss 64–66 on 1.7.23: s. 2 Current State: This information relates only to the provision/s amending the Casino (Management Agreement) Act 1993
Gambling Legislation Amendment Act 2023, No. 30/2023
Assent Date: 8.11.23 Commencement Date: S. 27 on 9.11.23: s. 2(1) Current State: This information relates only to the provision/s amending the Casino (Management Agreement) Act 1993
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3 Explanatory details
No entries at date of publication.
[1] Where an item is zero, please record it as such.
[2] As defined in s. 126-10(1) of the GST Act, excluding bad debts recovered as defined in s. 126-20(3) of the GST Act.
[3] Herein, CBP refers to "Commission Based Player(s)" as defined in clause 3.1 of the Casino Management Agreement.
[4] As defined in s.126-10(1)(a) of the GST Act, excluding bad debts written-off as defined in s. 126-20(2) of the GST Act.
[5] As defined in s. 126-20(3) of the GST Act.
[6] As defined in s. 126-10(1)(b) of the GST Act, excluding bad debts written-off as defined in s. 126-20(2) of the GST Act.
[7] As defined in s. 126-20(2) of the GST Act.
[8] As defined in s. 126-10(1) of the GST Act, excluding bad debts recovered as defined in s. 126-20(3) of the GST Act.
[9] Herein, OP refers to "ordinary players" who are any players at the Casino who are not CBPs.
[10] As defined in s. 126-10(1)(a) of the GST Act, excluding bad debts written-off as defined in s. 126-20(2) of the GST Act.
[11] As defined in s. 126-20(3) of the GST Act.
[12] As defined s. 126-10(1)(b) of the GST Act, excluding bad debts written-off as defined in s. 126-20(2) of the GST Act.
[13] As defined in s. 126-20(2) of the GST Act.
[14] Losses carried forward in accordance with s. 126-15 of the GST Act in respect of the activity of all players (CBPs and OPs).
[15] To account for adjustments as defined in s. 126-5(2) of the GST Act (please indicate the direction of the adjustment with a plus or minus sign). Please itemise and explain all of the components of this adjustment in the space provided at item 28. Any new items required as the result of future changes to the GST Act that cannot be elsewhere included, could also be included here.
[16] Adjustments required under clauses 22C.3 and 22C.5.
[17] Should be Item 17 (GST for all players) less Item 18 (losses carried forward from prior period) plus Item 19 (Adjustments).
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