Agreement to construct
Aboriginal Housing Program
[Location / community]
[ ________ ] = delete or insert information as appropriate
In this paper is an agreement between the Housing Authority and [Aboriginal entity] about the
construction of new housing at [location/community]. The Housing Authority is part of the Western
Australian Government and helps by building houses and renting houses to people.
This paper contains all the rules to make sure you are happy for the Housing Authority to build new
The English in this paper is very high. It is written in high English that lawyers and the Court can
understand. To make it easier for people who don't know this kind of English, the paper contains some
plain English language in boxes like this one, to help people understand.
This agreement is made up of 20 different parts called 'clauses'. Each clause talks about a different idea.
At the start of each clause there are plain English boxes to help you understand what each clause is
At the back of this agreement is a 'schedule' that contains the Housing Authority's idea about the new
houses it wants to build here. The Housing Authority will keep talking to you about its idea for the new
houses. The Housing Authority might end up building all of the houses listed in the schedule, or only
some of them.
In the plain English boxes it says 'you' or 'your organisation' when the agreement is talking about
[Aboriginal entity] and it says 'here' or 'your land' when the agreement is talking about
There is another agreement that sits beside this agreement. That other agreement is called the 'Housing
Management Agreement', and you should understand that other agreement too.
This agreement is about building the new houses. The 'Housing Management Agreement' is about
looking after the houses, and renting them to people, for many years into the future.
Agreement to Construct │V3 30062010 page 1
Agreement to construct – Aboriginal Housing
Agreed terms 6
1. Defined terms and interpretation 6
1.1 Defined terms 6
1.2 Interpretation of headings and text boxes 8
1.3 General interpretation 8
2. Condition precedent – Lots to be listed in Housing Management Agreement 9
3. Conduct of the Parties 10
4. Term of the Agreement 10
5. Warranties 10
6. No agency 11
7. Licence to Housing Authority 11
8. Housing Authority's obligations 11
8.1 Consultation 12
8.2 Compliance with ALT Land Use and Development Policy 12
8.3 Aboriginal heritage 12
8.4 Obtaining consents, Approvals and funding 12
8.5 Notice of Practical Completion and Final Completion 12
8.6 Limits on Housing Authority's obligations 12
9. Organisation's obligations 13
9.1 Consents 13
9.2 Publicity 13
9.3 Assignment 13
9.4 Transfer, mortgage or sale of interests in Lots and Houses 13
10. Lots and Houses 13
10.1 Housing Authority takes no proprietary interest 13
10.2 Houses to be listed in Housing Management Agreement 13
11. Risk 14
11.1 Construction risks 14
11.2 Limits of Housing Authority's liability 14
11.3 Insurance 14
12. Termination by Housing Authority 14
Agreement to construct – Aboriginal Housing Program | page 2
12.1 Termination by written notice 15
12.2 Rights following termination 15
13. Variation 16
14. Notices 16
14.1 Service of notices 16
14.2 Effective on receipt 17
15. Disputes and arbitration 17
15.1 Dispute resolution, mediation and arbitration 17
15.2 Continued performance 18
15.3 Exceptions 18
16. Severability and survival 18
16.1 Severability 18
16.2 Survival 18
17. Costs 18
18. Waiver 18
19. Governing law and jurisdiction 18
Schedule 1 – Project details 20
Signing page 21
Agreement to construct – Aboriginal Housing Program | page 3
Date [Insert (by handwriting) date of last signing]
The 'Parties' are who is in this agreement. This agreement is between the Housing Authority and an
organisation that represents you, [Aboriginal entity].
Name Housing Authority, a body corporate continued under section 6(1) of the
Housing Act 1980 (WA)
Short form name Housing Authority
Notice details 99 Plain Street, East Perth, Western Australia, 6004
Contact Director General or his nominee from time to time
Name [Aboriginal entity]
Short form name Organisation
Notice details [Address]
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The 'Background' explains why people wanted to make this agreement and explains some of the main
ideas in this agreement.
A The Housing Authority and the Commonwealth Government seek to improve the standard of
housing in Aboriginal communities in Western Australia.
B In order to help improve standards of housing in Aboriginal communities in Western Australia,
the Housing Act 1980 (WA) (Housing Act) has been amended to allow the Housing Authority to
enter into 'housing management agreements' (as defined in section 62A of the Housing Act) with
Aboriginal entities. The purpose of a housing management agreement is to enable the Housing
Authority to control and manage, on behalf of the relevant Aboriginal entity, the letting and
leasing of housing on the relevant Aboriginal land.
C The Organisation is an 'Aboriginal entity' (within the meaning of section 62A of the Housing Act)
and has the power to grant a lease over 'Aboriginal land' (within the meaning of section 62A of
the Housing Act).
D The Housing Authority and the Organisation have executed, or propose to execute, a housing
management agreement in respect of the Lots.
E By entering into this Agreement, the Housing Authority will not take any proprietary interest in
F This Agreement will apply only to the construction of new housing, not to refurbishment of
G This Agreement is not intended to affect:
(i) any native title which may exist in respect of the Lots; or
(ii) the Housing Authority's obligation to comply with the Aboriginal Heritage Act
H By signing this Agreement, the Organisation grants the Housing Authority permission to carry out
the Project on the Lots.
I Once the Project is completed, the Housing Authority will take responsibility for the tenancy
management of the Lots and Houses in accordance with a housing management agreement
between the Parties.
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1. Defined terms and interpretation
There are lots of words in this agreement that have special legal meaning. This clause explains
the meaning of many important words used in this agreement.
1.1 Defined terms
In this Agreement:
AAPA means the Aboriginal Affairs Planning Authority continued as a body corporate under
section 8(1) the AAPA Act.
AAPA Act means the Aboriginal Affairs Planning Authority Act 1972 (WA).
Aboriginal Land has the meaning given to that term under section 62A of the Housing Act.
Administrator means an administrator, receiver, receiver and manager, trustee, provisional
liquidator, liquidator or any other person (however described) holding, or appointed to, a similar
office or acting or purporting to act in a similar capacity.
(a) the financial, legal or other technical advisers of a Party; and
(b) the respective officers and employees of those financial, legal or other technical advisers.
Agreement means this Agreement to construct.
ALT means the Aboriginal Lands Trust established under section 20 the AAPA Act.
ALT Estate means land held or managed by the ALT for the use and benefit of the Aboriginal
ALT Land Use and Development Policy means the ALT policy of that name, as amended from
time to time. As at the date of the writing of this Agreement, the ALT Land Use and
Development Policy was available at the following website location:
Approval means any:
(a) development consent or other approval required to commence or construct the Project
under the Planning and Development Act 2005 (WA) or other relevant Law; and
(b) consent or other approval required for the demolition of any existing building or structure
on the Lots; and
(c) building approval or licence including those which are required to be obtained from the
Local Authority in relation to the Project; and
(d) any consent, approval, or creation or grant of rights by the Minister under the Land
Administration Act 1997 (WA).
Business Day means a day other than a Saturday, Sunday or public holiday in Western Australia.
Commencement Date means the date on which this Agreement is signed by the last Party to sign.
Commonwealth Government means the Commonwealth Government of Australia.
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Construction Contract means the contract between the Authority and third party Contractor for
the construction of the Project.
Contaminated has the same meaning as in the Contaminated Sites Act 2003 (WA) and
Contamination shall have a corresponding meaning.
Contractor means an appropriately licensed and qualified builder or builders and where the case
requires, any other tradespersons, consultants and other professionals engaged by the Housing
Authority for the purposes of carrying out and completing the Project in accordance with the
terms of this Agreement.
Corporation means an incorporated body and includes a corporation as defined in the
Corporations Act 2001 (Cth) and an incorporated association, as defined in section 3(1) of the
Associations Incorporation Act 1987 (WA).
Final Completion means completion of construction of the Project in accordance with the
Governmental Agency means any government or governmental, semi-governmental,
administrative, fiscal or judicial body, or responsible minister, department, office, commission,
delegate, authority, instrumentality, tribunal, board, agency, entity or organ of government,
whether the Commonwealth Government, Western Australian State Government or Local
Authority, statutory or otherwise.
Houses means the residential rental accommodation listed in Schedule 1Error! Reference source
not found., and includes ancillary facilities or other improvements carried out on the Lots under
the terms of this Agreement.
Housing Act means the Housing Act 1980 (WA).
Housing Management Agreement means an agreement entered into between the Parties
pursuant to section 62B(1) of the Housing Act, in respect of the Lots or the Houses. The Housing
Management Agreement may relate to other lots and other houses in addition to the Lots and the
Houses that are the subject of this Agreement.
Insolvency Event means any one or combination of the following or any event or circumstance
similar to the following:
(a) a Party disposes of the whole or any part of its operations or business other than in the
ordinary course of business;
(b) a Party ceases to carry on business;
(c) a Party ceases to be able to pay its debts as they become due;
(d) any step is taken by a mortgagee to take possession or dispose of the whole or any part of
a Party's assets, operations or business;
(e) any step is taken to enter into any arrangement between a Party and its creditors, without
the prior written consent of the Housing Authority; or
(f) any step is taken to appoint an Administrator to a Party.
Local Authority means a local government as defined in the Local Government Act 1995 (WA).
Loss means a loss, claim, action, damage, liability, cost, charge, expense, penalty, compensation,
fine or outgoing suffered, paid or incurred.
Lots means the lot or lots listed in Schedule 1.
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Mediator means a mediator accredited with either:
(a) the Institute of Arbitrators and Mediators Australia; or
(b) the organisation of alternative dispute resolution lawyers known as LEADR Limited
(ACN 008 651 232).
Minister for Housing means the minister to whom the administration of the Housing Act is from
time to time committed by the Governor of Western Australia.
Minister for Lands means the body corporate of that name continued under section 7 of the Land
Administration Act 1997 (WA).
Plans and Specifications means the plans and specifications for the Houses.
Practical Completion means the completion of construction of the Houses such that the Houses
are ready for occupation and that there are no omissions or defects which could have a materially
adverse impact on the occupation or use of the Houses.
Project means the construction of the Houses, to the point of Final Completion, on the Lots and
includes related design, planning, land preparation, obtaining of Approvals and demolition of
existing structures. An indicative summary of the main elements of the Project is set out in
Project Works means the works necessary to carry out the Project, including:
(a) any preparatory works prior to construction, such as surveys and inspections of the Lots
and the surrounding land;
(b) the construction of the Houses;
(c) ancillary works such as landscaping and the provision of services;
(d) remedial works during any defects liability period under the Construction Contract.
Residents means those persons who, from time to time, reside in the Houses.
Tenant has the meaning given to that term under the Residential Tenancies Act 1987 (WA).
Term means the term of this Agreement as provided in clause4.
1.2 Interpretation of headings and text boxes
In this Agreement, headings and text in boxes are for convenience only and do not affect
interpretation. The text in boxes is intended to assist in explaining the meaning of key clauses of
1.3 General interpretation
In this Agreement, unless the context otherwise requires:
(a) words importing the singular include the plural and vice versa;
(b) words importing any gender include the other gender;
(c) a reference to persons include Corporations;
(d) a reference to a person includes that person's executors, administrators, successors,
substitutes and assigns;
(e) a reference to a clause or Schedule is to a clause in or Schedule to this Agreement;
(f) a reference to currency is to Australian currency unless otherwise stated;
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(g) a reference to any legislation or to any section or provision thereof includes any statutory
modification or re-enactment or any statutory provision substituted for it, and ordinances,
by-laws, regulations, and other statutory instruments issued thereunder for the time being
in force in Western Australia;
(h) where the day on which or by which any act, matter or thing is to be done under this
Agreement is not a Business Day, that act, matter or thing will be done on the immediately
following Business Day;
(i) the meaning of general words is not limited by specific examples introduced by
'including', 'for example' or similar expressions;
(j) this Agreement shall be interpreted, applied and will take effect as a contract made in
(k) the contents of the Schedules to this Agreement are provisions of this Agreement and are
enforceable in accordance with its terms;
(l) the Parties shall at all times observe, conform and comply with the provisions of all
applicable laws of the Commonwealth of Australia, the State of Western Australia and any
relevant Local Authority;
(m) to the extent that any applicable law is inconsistent with this Agreement, the former shall
prevail to the extent of the inconsistency;
(n) nothing in this Agreement shall be construed so as to make a Party a partner, agent or
representative of the other Party or to create any partnership, association, joint venture
relationship or agency for any purpose;
(o) the rights and obligations of the Parties shall be neither joint nor joint and several;
(p) subject to its provisions, this Agreement will be binding upon and inure to the benefit of
the Parties and their respective successors and permitted assigns who become Parties
under the terms of this Agreement; and
(q) unless otherwise expressly stated, this Agreement replaces any previous agreement or
contract between the Parties in relation to the its subject matter.
2. Condition precedent – Lots to be listed in Housing Management
Before this agreement starts, it is important to check another agreement (called the 'Housing
Management Agreement') to make sure that the land (where the new houses will be built) is
written in that other agreement. If the land is not written in that other agreement, then the
Housing Authority will not build new houses on the land.
(a) It is a condition precedent to this Agreement that both Parties sign the Housing
Management Agreement (if it has not already been signed before the Commencement
Date) and cause the Lots to be listed in Schedule A to such agreement.
(b) Unless the condition precedent described at sub-clause 2(a) is satisfied or waived by
notice to the Organisation from the Housing Authority by 5.00pm (Western Australian
time) on the day 30 Business Days after the Commencement Date of this Agreement, or
any longer time notified by the Housing Authority, this Agreement will have no effect,
and will be taken to have been terminated on that date.
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3. Conduct of the Parties
This clause says how you and the Housing Authority will treat each other and respect each other.
The Parties agree to act toward each other in good faith and will use their respective best
endeavours in relation to the performance of their obligations under this Agreement.
4. Term of the Agreement
This clause says how long this agreement will last. Usually this agreement will last until the
Housing Authority finishes building the new houses. When the new houses are finished, the other
agreement (the 'Housing Management Agreement') keeps working and lets the Housing Authority
manage and rent the new houses to people.
This Agreement is to bind the Parties with respect to the Lots and Houses from the
Commencement Date until the earlier of:
(a) notice of Final Completion being given by the Housing Authority under clause 8.5;
(b) termination or other expiry of the Housing Management Agreement;
(c) termination of this Agreement by the Authority in accordance with clause 8.3(a)(i); or
(d) termination of this Agreement by the Authority in accordance with clause 12.1.
Here your organisation says to the Housing Authority: 'we have the right to sign this agreement
and we are a strong organisation that can work with this agreement'. Your organisation also says
to the Housing Authority: 'we understand this agreement'.
The Organisation represents and warrants that:
(a) it is an Aboriginal entity, as defined in section 62A of the Housing Act;
(b) it has the power to grant:
(i) a lease over the Lots; and
(ii) the licence described at clause 7;
(c) it is duly authorised and has the power to enter into and perform its obligations under this
Agreement for the Term;
(d) there is no litigation, arbitration or administrative proceedings currently taking place,
pending or threatened against the Organisation which may have a materially adverse effect
on the Organisation's ability to perform its obligations under this Agreement;
(e) it is unaware of any act, matter, thing or circumstance, or the reasonable possibility of an
act matter, thing or circumstance, by reason of which:
(i) the Organisation would be unable to perform any obligation under this Agreement;
(ii) the Lots or Houses would not be able to be listed in Schedule A or B respectively
of the Housing Management Agreement;
(f) it is not in default under a law or obligation which affects its operational capacity or its
Agreement to construct – Aboriginal Housing Program | page 10
(g) it has received legal advice regarding its rights and obligations under this Agreement,
prior to signing this Agreement, or does not wish to obtain such advice; and
(h) there will be no legal impediment to the Lots or Houses being occupied by a Tenant
following completion of the Project Works.
6. No agency
Here it says that the Housing Authority and your organisation remain apart and each does their
own things under this agreement.
Nothing contained in this Agreement gives rise to an agency relationship between the Parties.
7. Licence to Housing Authority
Here your organisation says that it is happy for the Housing Authority to come onto the land and
build the new houses.
(a) The Organisation grants to the Housing Authority and its agents, consultants, licensees
and Contractors (including the Contractors' subcontractors), for the Term, a licence to
enter and re-enter the Lots for the purpose of carrying out the Project, including the
(b) Sub-clause 7(a) applies subject to:
(i) the Minister for Lands granting Approval for the licence under section 18 of the
Land Administration Act 1997 (WA), if necessary, where the Lots (or any of them)
are Crown land; and
(ii) the Housing Authority obtaining permission to enter the Lots, pursuant to section
31 of the AAPA Act and regulation 8 of the Aboriginal Affairs Planning Authority
Act Regulations 1972 (WA), where the Lots (or any of them) are subject to Part III
of the AAPA Act.
(c) In addition to granting the licence referred to in sub-clause 7(a), the Organisation must do
all things reasonably necessary to enable the Housing Authority and those persons duly
authorised on the Housing Authority's behalf to inspect the Lots and Houses, the Project
and any other place where the Project is being carried out (provided the Organisation is
entitled to access those places).
8. Housing Authority's obligations
This clause explains the main things that the Housing Authority needs to do, such as:
• keep talking to your organisation about what is happening on your land and how the
Housing Authority is going with building the new houses;
• protecting any 'Aboriginal sites' on the land; and
• following the ideas of the Aboriginal Land Trust about building the houses on your land.
This clause explains that the Housing Authority does not have to build the new houses on your
land. The Housing Authority has to look at a lot of Aboriginal communities and decide where to
build new houses. The Housing Authority may not have a lot of money to build new houses in
every Aboriginal community.
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(a) Prior to commencing the Project Works, the Housing Authority shall consult with the
Organisation regarding the Plans and Specifications for the Houses.
(b) The Housing Authority will keep the Organisation updated and informed, throughout the
Project Works, about:
(i) the progress of the Project Works; and
(ii) expected dates of milestone events such as the expected date of commencement of
construction and the expected date of Final Completion.
8.2 Compliance with ALT Land Use and Development Policy
In carrying out the Project, the Housing Authority shall act in accordance with the ALT Land Use
and Development Policy, even if the Lots are not within the ALT Estate.
8.3 Aboriginal heritage
(a) Where the Housing Authority becomes aware that the Project Works will, or could
potentially, impact upon an 'Aboriginal site' within the meaning of the Aboriginal
Heritage Act 1972 (WA), the Housing Authority may, at its discretion:
(i) terminate this Agreement by written notice to the Organisation;
(ii) continue with this Agreement in respect only of such of the Project Works that
will not impact upon the identified Aboriginal site; or
(iii) subject to obtaining all necessary Approvals including consent under section 18 of
the Aboriginal Heritage Act, proceed with the Project Works, if the Aboriginal
persons with authority to speak for the affected Aboriginal sites, provide written
confirmation, to the satisfaction of the Housing Authority, that it is their wish for
the Project to proceed.
(b) If the Housing Authority exercises the discretion referred to in clause 8.3(a)(ii), then it will
provide written notice of its decision to the Organisation, and from the date of receipt of
such notice this Agreement shall be deemed to have been varied accordingly.
8.4 Obtaining consents, Approvals and funding
The Housing Authority will use its best endeavours to obtain:
(a) all Approvals required under the Land Administration Act 1997 (WA), in order to deal
with the Lots; and
(b) all other Approvals necessary to undertake the Project; and
(c) funding for the Project.
8.5 Notice of Practical Completion and Final Completion
The Housing Authority will provide the Organisation with written notice of Practical Completion
and Final Completion having been achieved under the Construction Contract, such notice to be
provided as soon as practicable following each of these dates, but in any event, within 20
8.6 Limits on Housing Authority's obligations
To avoid doubt:
(a) this Agreement does not impose any obligation on the Housing Authority to commence or
complete the Project; and
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(b) the Housing Authority owes no duty to the Organisation to review the Plans and
Specifications or the Construction Contracts for errors, omissions or compliance with the
requirements of this Agreement.
9. Organisation's obligations
Here it says the main things that your organisation needs to do, like helping the Housing
Authority get permission from the government to build the new houses.
The Organisation must deliver to the Housing Authority all consents which the Housing Authority
requests for the purposes of:
(a) the Land Administration Act 1997 (WA), in order to allow the Project to proceed; and
(b) enabling the Housing Authority to obtain any Approvals.
The Organisation agrees to cooperate with the Housing Authority, the Commonwealth
Government and the Western Australian Government in relation to any opportunities to
participate in publicity and publicity events in relation to the Project.
The Organisation must not assign of the whole or any part of this Agreement without the prior
written consent of the Housing Authority.
9.4 Transfer, mortgage or sale of interests in Lots and Houses
The Organisation must not, without the prior written consent of the Housing Authority sell,
assign, transfer, mortgage, let, lease, dispose of, surrender or otherwise deal with any of its estate
or interest in any of the Lots and Houses.
10. Lots and Houses
This clause explains that the Housing Authority does not take your land when it builds the new
Also, when the new houses are built, those new houses must be written into the other agreement
that sits beside this agreement, called the 'Housing Management Agreement'.
10.1 Housing Authority takes no proprietary interest
This Agreement is not intended to create any proprietary interest in the Lots in favour of the
10.2 Houses to be listed in Housing Management Agreement
(a) Upon Practical Completion, the Parties agree to enter the Houses into Schedule B of the
Housing Management Agreement if the Housing Authority is satisfied, in accordance with
section 62C of the Housing Act, that doing so would accord with the wishes of the
Aboriginal inhabitants of the relevant Lots.
(b) The Organisation acknowledges the Housing Authority cannot make the Houses available
to Tenants until both:
(i) Practical Completion is achieved; and
(ii) the Houses are entered into Schedule B of the Housing Management Agreement.
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(c) Once entered into Schedule A (in the case of the Lots) and Schedule B (in the case of the
Houses) of the Housing Management Agreement, the Lots and Houses:
(i) will be 'nominated lots' and 'nominated houses', respectively, within the meaning
of the Housing Act; and
(ii) shall be used, managed and maintained in accordance with and subject to the terms
of the Housing Management Agreement, for the term specified in the Housing
Here it says that the Housing Authority will pay if anything goes wrong while the houses are
being built. The Housing Authority has insurance, and your organisation must have some
11.1 Construction risks
The Housing Authority accepts liability for all risks in respect of the design, construction and
commissioning of the Houses which may arise out of the Project Works.
11.2 Limits of Housing Authority's liability
(a) The Organisation acknowledges that the Housing Authority assumes no liability for the
condition and characteristics of the Lots, including the contravention of any applicable
environmental law (but excluding any Contamination which was known by the Housing
Authority to be in existence at the Commencement Date).
(b) The Housing Authority will use reasonable endeavours to avoid delay in the completion of
the Project Works, if commenced. However, the Housing Authority accepts no liability
for any delay in commencing or completing the Project Works.
(c) The Housing Authority makes no warranty or representation as to the prospects of
obtaining the funding referred to in sub-clause 8.4(c).
(a) The Housing Authority warrants that it has in place all insurance cover reasonably
necessary, including public liability insurance, for the purposes of the Project.
(b) The Organisation must obtain and at all times maintain public liability insurance in an
amount not less than $5,000,000 in respect of any one claim.
(c) The Parties shall not do or permit to be done, or omit to do, any act, matter or thing upon
the Lots or Houses, or bring onto or keep anything on the Lots or Houses, whereby any
insurance policy may be rendered void or voidable.
(d) If a Party does any thing, contrary to clause 11.3(c), which has the effect of voiding any
insurance policy, that Party shall be responsible for and shall pay and discharge on
demand any damage or Loss suffered or incurred as a result.
12. Termination by Housing Authority
This clause explains how the Housing Authority can end this agreement. For example, if your
organisation does not follow this agreement, or if your organisation gets in trouble with money,
then the Housing Authority can end this agreement.
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12.1 Termination by written notice
(a) The Housing Authority may, by notice in writing to the Organisation subject to sub-clause
12.1(b), terminate this Agreement in the event of any of the following events
(i) the Organisation breaches a term of this Agreement which the Housing Authority
considers to be a material term, and that breach is ongoing, or in the opinion
(reasonably formed) of the Housing Authority not likely to be capable of being
(ii) the Organisation seriously or persistently, in the opinion of the Housing Authority,
breaches any term of this Agreement (whether or not considered a 'material term');
(iii) the Organisation is, in the opinion of the Housing Authority, unable to continue to
meet its obligations under the terms of this Agreement for any reason;
(iv) a judgment or order for more than $500,000 is obtained against the Organisation in
any court of law and either:
(A) the judgment remains unsatisfied at the end of the period for payment (if
any) specified in the judgment or order or, if no such period is specified, at
the end of 45 Business Days; or
(B) execution is levied or issued against the Lots or Houses or any of the
(v) the Organisation's corporate structure changes or is altered in a way which, in the
reasonable opinion of the Housing Authority, may materially and detrimentally
affect the Project or the interests of the Housing Authority under this Agreement;
(vi) without the Housing Authority's prior written consent, a resolution is passed for
the dissolution of the Organisation;
(vii) the Organisation suffers an Insolvency Event; or
(viii) without limitation to sub-clause 12.1(a)(i), the Organisation fails to comply with
the requirements of clause 9.4 .
(b) Where a Termination Event occurs, the Housing Authority shall provide the Organisation
with notice in writing requiring the Organisation to rectify the relevant Termination Event
within 20 Business Days (or any longer period specified in the notice), after which time
the Housing Authority may terminate this Agreement in accordance with sub-clause
12.2 Rights following termination
(a) In the event of that this Agreement is terminated by the Housing Authority under clause
12.1, the Housing Authority may undertake (in its absolute discretion) any of the
following actions without further notice to the Organisation:
(i) if the Project Works have not been completed to the stage of Final Completion,
enter the Lots and Houses for the purposes of:
(A) completing the Project Works; or
(B) recovering materials comprising the partially completed Project Works;
(ii) in the event the Organisation is a corporation within the meaning of the
Corporations Act 2001 (Cth) and becomes insolvent within the meaning of that
Agreement to construct – Aboriginal Housing Program | page 15
Act, to the extent that the Housing Authority has standing to do so, make
application to a court or any other appropriate authority for the winding up of the
Organisation or the appointment of an Administrator; or
(iii) recover from the Organisation as a debt due any Loss suffered by the Housing
Authority as a result of the termination of this Agreement.
(b) For the purposes of subclause 12.2(a)(i), the Organisation hereby grants the Housing
Authority an irrevocable licence to enter the Lots and Houses.
(c) The Housing Authority's rights provided for in this clause 12.2 will survive termination of
This clause explains how this agreement can be changed. Usually both the Housing Authority
and your organisation have to sign a paper for this agreement to be changed.
(a) This Agreement may only be varied:
(i) by the written agreement of all Parties; or
(ii) unilaterally by the effect of a notice from the Housing Authority under clause
(b) In the event that it becomes necessary to add further Lots to Schedule 1:
(i) such addition will be done in accordance with sub-clause 13(a)(i); and
(ii) the Parties agree to enter the further Lots into Schedule A of the Housing
Management Agreement, subject to the Housing Authority being satisfied, in
accordance with section 62C of the Housing Act, that doing so would accord with
the wishes of the Aboriginal inhabitants of that land to the extent those wishes can
be ascertained and are practicable.
(c) For the avoidance of doubt, no variation of this Agreement by adding Lots to Schedule 1
will be effective until Schedule A of the Housing Management Agreement is amended as
required under clause 13(b)(ii).
This clause explains how your organisation and the Housing Authority talk to each other under
this agreement. Some important things have to be written down under this agreement, and this
clause talks about how that writing is done and how the written paper should be sent.
14.1 Service of notices
A notice, demand, consent, approval or communication under this agreement (Notice) must be:
(a) in writing, in English and signed by an authorised person; and
(b) hand delivered or sent by prepaid post to the recipient's Address for Notices specified on
the Details page of this Agreement, or sent by facsimile to the recipient's facsimile number
specified on the Details page of this Agreement, or as varied by any Notice given by the
recipient to the sender.
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14.2 Effective on receipt
A Notice given in accordance with clause 14.1 takes effect when received (or at a later time
specified in the Notice), and is taken to be received:
(a) if hand delivered, on delivery;
(b) if sent by prepaid post, on the second Business Day after the date of posting (or on the
seventh Business Day after the date of posting if posted to or from a place outside
(c) if sent by facsimile, when the sender’s facsimile system generates a message confirming
successful transmission of the entire Notice unless the recipient immediately informs the
sender that it has not received the entire Notice,
but if the delivery, receipt or transmission is not on a Business Day or is after 5.00pm on a
Business Day, the Notice is taken to be received at 9.00am on the next Business Day.
15. Disputes and arbitration
This clause explains how we will try to fix any arguments that come up under this agreement. We
will try to sit down and sort out any arguments face to face, before anyone goes to a mediator or
to a court.
15.1 Dispute resolution, mediation and arbitration
(a) Subject to clause 15.3, any dispute between the Parties arising under or in respect of this
Agreement (Dispute) shall be dealt with in accordance with the terms of this clause 15.1.
(b) A Party may not commence court proceedings in respect of a Dispute unless it has first
complied with this clause.
(c) A Party claiming that a Dispute has arisen must give written notice to the other Party
within five (5) Business Days of the Dispute first arising, giving details of the Dispute.
(d) During the five (5) Business Days after a notice is given under this clause (or longer
period agreed in writing by the Parties) (Resolution Period) each Party must use its best
efforts to resolve the Dispute.
(e) If the Parties cannot resolve the Dispute within the Resolution Period, either Party may
refer the Dispute to a Mediator, agreed to by both Parties.
(f) If the Parties cannot agree on a Mediator within five (5) Business Days after the end of the
Resolution Period, either Party may request the Chairman of the Institute of Arbitrators
and Mediators Australia (WA Chapter) to appoint a Mediator.
(g) If no request to refer the Dispute to a Mediator is made under subclause 15.1(f) within the
time limited by that subclause, a Party who has complied with sub-clauses 15.1(a) to
15.1(d) inclusive may terminate the dispute resolution process provided for in this clause
15.1 by giving notice to the other Party.
(h) If the Parties are unable to resolve a Dispute under this clause 15.1, then they may agree to
submit the Dispute to arbitration. The arbitrator will be a person agreed upon by the
Parties or, in default of agreement, as appointed by the Chairman of the Institute of
Arbitrators and Mediators Australia (WA Chapter).
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15.2 Continued performance
The Parties must, to the extent it is reasonably practicable and to the extent that such performance
is not directly impacted by the Dispute, continue to perform their obligations under this
Agreement notwithstanding the existence of a Dispute, unless the Parties otherwise agree in
Clause 15.1 shall not apply to:
(a) any dispute over the exercise of the Housing Authority's powers under clause 12, in
respect of which either Party may commence court proceedings in order to resolve any
(b) urgent injunctive relief.
16. Severability and survival
This clause explains that if any of the writing in this agreement turns out to be no good (and a
court says so) then the rest of the agreement can keep going.
A clause or Schedule, or part of a clause or Schedule, of this Agreement that is illegal or
unenforceable may be severed from this Agreement and the remaining parts of this Agreement
continue in force.
Clauses 5, 12.2 and 15 survive the termination of this Agreement to the extent it is necessary to
give them full effect.
This clause says that the Housing Authority will pay its costs of making this agreement, and your
organisation will pay its own costs of making this agreement.
Each Party shall pay its own costs associated with the negotiation, preparation and execution of
this Agreement and any related documents.
This clause is mainly for lawyers to understand. This clause talks about what to do if someone
breaks their word under this agreement, and the other person decides not to have a fight about it.
(a) A Party does not waive a right, power or remedy if it fails to exercise or delays in
exercising the right, power or remedy.
(b) A single or partial exercise of a right, power or remedy does not prevent another or further
exercise of that or another right, power or remedy.
(c) A waiver of a right, power or remedy shall be in writing and signed by the Party giving
19. Governing law and jurisdiction
This clause explains that Western Australian laws and courts apply to this agreement.
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(a) This Agreement shall be interpreted, applied and will take effect as a contract made in
Western Australia and is governed and shall be performed according to the laws of
(b) Each Party irrevocably submits to the non-exclusive jurisdiction of the courts of the State
of Western Australia.
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Schedule 1 – Project details
This page is where the Housing Authority writes about the houses that it wants to build on your land, and
where it wants to build the houses.
Proposal summary [insert]
Dwelling numbers [insert]
'Houses' (by type of dwelling Specify the number of each type of dwellings to be developed (eg House,
and capacity) and 'Lots' (by lot Unit etc) and the number of bedrooms in each dwelling.
and plan/diagram number)
Type of dwelling Number of Lot number and plan or
bedrooms diagram number
[insert] [insert] [insert]
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EXECUTED as an agreement
The common seal of the Housing Authority was hereunto affixed in the presence of:
Signature of Authorised Officer Signature of Authorised Officer
Name of Authorised Officer (please print) Name of Authorised Officer (please print)
[Insert Organisation's appropriate execution clause]
Signature of [insert] Signature of [insert]
Name of [insert] Name of [insert]
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