FEDERAL COURT OF AUSTRALIA

NRG London Reinsurance Company Ltd, in the matter of
NRG Victory Aust Ltd and the Corporations Act 2001 (No. 2) [2006] FCA 1126

CORPORATIONS – Court’s approval of compromise or arrangement between company and its creditors – whether one of three directors of the company, whose own proprietary company provided administrative services to the company, would be administering the scheme, and would therefore be prohibited from doing so without leave of the Court by s 411(7) of the Corporations Act 2001 (Cth) – Held: on the evidence, no.

Corporations Act 2001 (Cth)

NRG LONDON REINSURANCE COMPANY LIMITED (ABN 77 001 160 792)

NRG VICTORY AUSTRALIA LIMITED (ABN 47 002 971 477)

NSD 1125 OF 2006

LINDGREN J

16 AUGUST 2006

SYDNEY

IN THE MATTER OF NRG LONDON REINSURANCE COMPANY LIMITED AND NRG VICTORY AUSTRALIA LIMITED AND THE CORPORATIONS ACT 2001

THE COURT ORDERS THAT:

1. Pursuant to subss 411(4) and (6) of the Corporations Act 2001 (Cth) (“the Act”), the Scheme of Arrangement between NRG London Reinsurance Company Limited and its Scheme Creditors (as defined), in the form annexed hereto and marked “A” [Annexure A comprises 28 pages and is not attached to this copy, but is available electronically], be approved (“the NRG London Scheme”).

2. Pursuant to subss 411(4) and (6) of the Act, the Scheme of Arrangement between NRG Victory Australia Limited and its Scheme Creditors (as defined), in the form annexed hereto and marked “B” [Annexure B comprises 28 pages and is not attached to this copy, but is available electronically], be approved (“the NRG Victory Scheme”).

3. Pursuant to subs 411(12) of the Act, the plaintiffs be exempted from compliance with the requirements of subs 411(11) of the Act.

4. To the extent necessary, Mark Moyes and Scott Collings be granted leave under subs 411(7) of the Act to administer the NRG London Scheme and NRG Victory Scheme.

5. These orders be entered forthwith.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE MATTER OF NRG LONDON REINSURANCE COMPANY LIMITED AND NRG VICTORY AUSTRALIA LIMITED AND THE CORPORATIONS ACT 2001

REASONS FOR JUDGMENT

1                     On 5 July 2006 I made orders pursuant to s 411(1) of the Corporation Act 2001 (Cth) (“the Act”), that NRG London Reinsurance Company Limited (“NRG London”) and NRG Victory Australia Limited (“NRG Victory”) convene meetings of their respective “Scheme Creditors”: see NRG London Reinsurance Company Ltd, in the matter of NRG Victory Aust Ltd and the Corporations Act 2001 [2006] FCA 872. In the present reasons, words and expressions have the same meanings as they had in the earlier reasons for judgment, where the background facts are set out.

2                     The two Scheme Meetings were held on 15 August 2006. Affidavit evidence shows that the orders of 5 July 2006 relating to notifications and advertisements for the meetings have been complied with. The Scheme Creditors at each meeting agreed to the relevant Scheme by the required majority.

3                     A question was raised at the NRG Victory meeting whether Ross Littlewood was able to administer the NRG Victory Scheme, given his position as a director of NRG Victory. Mr Littlewood is one of three directors of NRG Victory. He is also the Australian agent of NRG London for the purposes of s 118 of the Insurance Act 1973 (Cth) and describes himself as the “principal director” of Littlewoods Services Pty Ltd, which has provided “various administrative services” to NRG London since 1974 and to NRG Victory since 1994. He states that those services included “representation, technical accounting, claims settlement, cash processing and statutory record keeping and accounting”.

4                     Subsection 411(7) of the Act provides as follows:

“(7) Except with the leave of the Court, a person must not be appointed to administer, and must not administer, a compromise or arrangement approved under this Act between a body and its creditors or any class of them or between a body and its members or any class of them, whether by the terms of that compromise or arrangement or pursuant to a power given by the terms of a compromise or arrangement, if the person:

(a) is a mortgagee of any property of the body; or

(b) is an auditor of the body; or

(ba) is a director, secretary, senior manager or employee of the body; or

(c) is a director, secretary, senior manager or employee of a body corporate that is a mortgagee of property of the body; or

(d) is not a registered liquidator; or

(e) is a director, secretary, senior manager or employee of a body corporate related to the body; or

(f) unless ASIC directs in writing that this paragraph does not apply in relation to the person in relation to the body—has at any time within the last 12 months been an officer or promoter of the body or of a related body corporate.”

This subsection refers to appointments or administrations after a scheme has been approved by the Court. However, Mr Owens, counsel for the plaintiffs, while contending that the role played by Mr Littlewood as a director of NRG Victory does not signify that he will be administering the NRG Victory Scheme, asks that, if I should take a different view, leave be granted to Mr Littlewood to administer that scheme.

5                     I agree with Mr Owens that the mere fact that Mr Littlewood will continue to be, and will act as, a director of NRG Victory does not signify that he will be administering the NRG Victory Scheme.

6                     The notion of what it means to administer a compromise or arrangement for the purposes of subs 411(7) is not defined in the Act. In the present case, the general administrator of the NRG Victory Scheme is NRG Victory itself. Mr Littlewood is only one of three directors of that company even though his knowledge and his role in the past no doubt signify that he is, and will continue to be, a key person in terms of the day-to-day administration of the company. There is, however, nothing to suggest that his co-directors act at his behest or that directorial decisions are not taken by the three directors

7                     While I do not give an advisory opinion (even the granting of leave would not protect Mr Littlewood if he should step outside the terms of the leave granted), in deciding whether to approve the Schemes I have come to the view that Mr Littlewood’s mere status as one of three directors of NRG Victory, coupled with the fact that his company, Littlewoods Services Pty Ltd, may continue to provide administrative services to that company, do not, without more, indicate that Mr Littlewood will be administering the NRG Victory Scheme.

8                     There may be a question whether Mark Moyes and Scott Collings will be administering certain aspects of the Schemes, and, therefore, to the extent necessary, I will grant them leave to do so, even though they are not registered liquidators.

9                     Both Schemes should be approved. I make orders 1 to 5 of short minutes of order initialled by me, dated today and placed with the papers.

Associate:

Dated: 24 August 2006

6.1 NRG London Scheme

Scheme of Arrangement made in Sydney on the Effective Date pursuant to section 411 of the Corporations Act

Parties NRG London Reinsurance Company Limited (a company incorporated in England, with limited liability, registered as a foreign company under the Corporations Act, 2001 of Australia) ABN 77 001 160 792("Scheme Company")

The Scheme Creditors ("Scheme Creditors")

Operative provisions

(a)                        The Scheme Company was incorporated in England (company number 660030) on 20 May 1960, as London Reinsurance Company Limited.

(b)                        The Scheme Company's name changed to New London Reinsurance Company Limited on 31 January 1961, and on 1 July 1975, to NRG London Reinsurance Company Limited.

(c)                        The Scheme Company established its Australian branch in September 1973, and it was registered as a foreign company under the precursor to the Corporations Act in Australia on 28 September 1973.

(d)                        The Scheme Company ceased writing business through its Australian branch in 1991, and its authorisation under the Insurance Act1973, only permits it to carry on insurance business in Australia for the sole purpose of discharging liabilities under policies entered into prior to 18 June 2002.

The terms of the Scheme are set out in the Attachment to this document.

For the purposes of the Scheme and the Attachment:

"Accounting Claims Provision" means $7,032,000.

"Excluded Liabilities" means Liabilities under Reinsurance Contracts not written through the Australian branch of the Scheme Company. For this purpose, a Reinsurance Contract will be taken to have been written through the Australian branch only if the relevant Reinsurance Contract was executed by NRG London Reinsurance Company Limited and was:

(a)                        described on its face as being signed or executed for and on behalf of "NRG London Reinsurance Company Limited Australian Branch"; and/or

(b)                        signed or executed on behalf of NRG London adjacent to a stamp headed "NRG London Reinsurance Co. Ltd Australian Branch".

THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK. PLEASE NOTE THAT PAGE 38 DOES NOT APPEAR IN ANNEXURE A.

6.3 Attachment to Scheme

1.1                     Definitions

In the Scheme, unless the context otherwise requires or otherwise expressly provides, the following expressions shall have the following meanings:

"Act" means the Corporations Act 2001 (Cth) of Australia.

"Adjudication Costs" has the meaning given to that term in clause 4.6(j)(i).

"Admissible Interest" means any interest provided for in a relevant Reinsurance Contract or any relevant statute.

"Advance Payment" has the meaning given to that term in clause 3.2(b).

"Agreed Claim (Pre Set-Off)" means the amount determined as being due in respect of a Scheme Creditor's Claim pursuant to clauses 4.5(b), 4.5(d), 4.5(e), 4.6(f) or 4.6(h) prior to set-off and relevant deductions in accordance with the relevant Scheme.

"Agreed Paid Losses" means Paid Losses which the Scheme Company determines (in its sole discretion, by reference to its computer records) were due and payable but unpaid by it on the Effective Date.

"ASIC" means Australian Securities and Investments Commission.

"Authorised Insurer" means a general insurer authorised to conduct business in Australia under the Insurance Act 1973.

"Bill Rate" for a period means the following rate (expressed as percentage per annum):

(a)                        the average of the bid rates shown at or about 10:30 am (Sydney time), on page "BBSY" on the Reuters Monitor System, on the first day of that period, for a term of 360 days; or

(b)                        if:

(i)                          for any reason, the rate referred to at paragraph (a) of this definition is not displayed for a term equivalent to the relevant period, or such rate is no longer available; or

(ii)                        in the opinion of the Scheme Company, the basis on which that rate is displayed is changed, and ceases to reflect the Scheme Company's cost of funding to the same extent as at the date of this document,

then the rate determined by the Scheme Company to be the average of the buying rates quoted to the Scheme Company by three banks in the Australian market, as determined by the Scheme Company, at or about 10:30 am (Sydney time), on the first day of the relevant period for bills accepted by a leading Australian bank, and which have a term equivalent to the period. If the Scheme Company is unable to obtain three quotes, the Bill Rate will be the rate reasonably determined by the Scheme Company to be the appropriate equivalent rate, having regard to prevailing market conditions.

"Board" means the board of directors of the Scheme Company from time to time.

"Broker" means any broker who placed business with, or on behalf of, the Scheme Company or, if applicable, any successor to such a broker.

“Business Day” means any day other than a Saturday, Sunday or public holiday on which banks are not generally open for business in Sydney.

"Claim" means any claim against the Scheme Company (not being a claim in respect of Pre-Scheme Expenses or Scheme Costs) in respect of a Liability (other than an Excluded Liability), under, or in relation to, Scheme Business and to which the Scheme Company was subject at the Valuation Date, or to which the Scheme Company may become subject after the Valuation Date, by reason of an obligation incurred on, or before that date, including a claim for Admissible Interest.

"Claim Form" means the document entitled "Claim Form" made available to Scheme Creditors and Known Brokers in accordance with the notices issued pursuant to clause 4.2(a), which Scheme Creditors are required to Submit prior to the Final Claims Submission Date, in order to have their Claims agreed or determined.

"Court" means the Federal Court of Australia.

"Creditors' Meeting" means the meeting of the Scheme Creditors of the Scheme Company convened for the purpose of considering and, if thought fit, approving the Scheme.

"Default Interest" means interest payable pursuant to clause 4.14(b) in circumstances where the Scheme Company fails to make payment in full of a Scheme Creditor's Final Determined Claim within 90 days from (but not including) the date of such Final Determined Claim having been determined.

"Delegate" means any person to whom the Scheme Actuary delegates any of his powers, rights, duties or functions under the Scheme.

"Disputed Final Determined Claim Notice" shall have the meaning given to that term in clause 4.7(b)(ii).

"Disputed Claim" means a Claim referred to the Scheme Adjudicator in accordance with clause 4.5(e), 4.5(f), 4.5(h) or 4.7(d).

"Dispute Resolution Procedure" means the procedure for the adjudication of disputes by the Scheme Adjudicator set out in clauses 4.6, 4.7(d), 4.7(e) and 4.7(f).

"Disputed Set-Off or Deduction" has the meaning given to that term in clause 4.7(b)(i).

"Effective" where used in relation to the Scheme, means the coming into effect, pursuant to section 411(10) of the Act, of the order of the Court made under section 411(4)(b) of the Act.

"Effective Date" means the date on which the Scheme becomes effective.

"Electronically" means any communication sent or received by facsimile or by email in accordance with clause 9.4.

"Employee" means, as the context shall admit, any partner in the same firm as the Scheme Actuary or any individual or corporate entity employed, whether under a contract of service or a contract for services, by that firm, by any company owned by that firm or the Scheme Actuary in connection with the performance or exercise of his powers, rights, duties or functions under the Scheme.

"Estimation Methodology" means the method of estimation described at Section 5 to the Scheme Booklet.

"Final Claims Submission Date" means 11:59 pm (Sydney time) on the 120th day after, but not including, the Effective Date (or, if such day is not a Business Day, the first Business Day thereafter).

"Final Determined Claim" means the balance, if any, remaining due from the Scheme Company to a Scheme Creditor, following the deduction of those amounts referred to in clause 4.7(a).

"Final Determined Claim Notice" shall have the meaning given to that term in clause 4.7(b).

"Final Determined Claim Notification Date" shall have the meaning given to that term in clause 4.7(b).

"Guidance Notes" means the guidance notes in respect of the Claim Form explaining how to access, obtain, complete, amend and submit a Claim Form, and the manner in which a Scheme Creditor may provide any supporting documentation to the Scheme Company.

"IBNR Claims" means a Claim under a Reinsurance Contract based on Liabilities of the Scheme Company, in respect of losses which have been incurred but have not been reported to the Scheme Company, and which are subject to potential recoveries under a Reinsurance Contract with the Scheme Company.

"Known Broker" means a Broker of whose involvement in placing and/or administering a Reinsurance Contract, the Scheme Company is aware.

"Liability" means any debt or liability (being a liability to pay money or money's worth) of a person, whether it is present or future, certain or contingent, whether its amount is fixed or liquidated, or is capable of being ascertained by fixed rules or as a matter of opinion, including any liability under any enactment (in Australia or in any other jurisdiction), and any liability in contract, tort or bailment, or arising out of an obligation to make restitution or in any other manner whatsoever, provided that such expression does not include any debt or liability which is barred by statute under Australian law, or the law of any other jurisdiction, which applies to that liability or is otherwise unenforceable. For the avoidance of doubt, where any obligation or liability under a contract or policy is void or, being voidable, has been duly avoided, no obligation or liability shall arise in respect of such obligation or liability.

"Long Stop Date" has the meaning given to that term in clause 4.5(h).

"Notified Outstanding Claims" means a Claim under a Reinsurance Contract, based on Liabilities of the Scheme Company in respect of losses which have been notified to the Scheme Company, but have not become Paid Losses, and which are subject to potential recoveries under a Reinsurance Contract.

"Paid Losses" means Liabilities of the Scheme Company, in respect of losses of a Scheme Creditor arising pursuant to Scheme Business, which have been notified to the Scheme Company and which are certain in amount.

"Post" means delivered by hand (including by a generally recognised commercial courier service), pre-paid first class post, or air mail.

"Pre-Scheme Expenses" means all costs, charges, expenses and disbursements reasonably incurred by the Scheme Company in connection with the promotion and preparation of the Scheme, including the costs of holding the Creditors' Meeting, and the costs of obtaining the sanction of the Court of the Scheme.

"Proceedings" means any form of proceedings in any jurisdiction or forum including, without limitation, any legal proceedings, demand, arbitration, alternative dispute resolution procedure, judicial review, adjudication, mediation, execution, seizure, distraint, forfeiture, re-entry, enforcement of judgment or enforcement of any security or any step taken for the purpose of creating or enforcing a lien.

"Property" means all forms of property (including money, goods, things in action, land and every description of property wherever situated), and every description of interest, whether present, future, vested or contingent, arising out of, or incidental to, property and including, for the avoidance of doubt, all contributions to the assets of the Scheme Company.

"Reinsurance Contract" means any inwards contract, or a policy of insurance, reinsurance or retrocession of any kind whatsoever:

(a)                        which has been entered into by, or on behalf of, the Scheme Company; or

(b)                        in respect of which Liabilities arising thereunder have been assigned or otherwise novated to the Scheme Company (whether pursuant to statute or otherwise); or

(c)                        under which the Scheme Company has any Liabilities for any other reason whatsoever.

"Relevant Rate of Exchange" means the closing mid-market rate of exchange applying to a particular currency in respect of the currency into which it is to be converted, as quoted by the Reserve Bank of Australia on its website on the close of business on the last Monday of the calendar month prior to the month in which the conversion takes place, in accordance with clause 4.13(c).

"Resolution Period" has the meaning given to that term in clause 4.7(d).

"Reversion to Run-Off Date" has the meaning given to that term in clause 8.2(a).

"Scheme" means, in respect of the Scheme Company, the scheme of arrangement pursuant to section 411 of the Act, in the form set out in this document with or subject to any modification, addition or condition approved or imposed by the Court.

"Scheme Actuary" means Scott Collings of Finity Consulting Pty Limited, or such other person for the time being appointed as Scheme Actuary in accordance with clause 5.1(f).

"Scheme Adjudicator" means Mark Moyes of 3 red Pty Ltd, or such other person for the time being appointed as Scheme Adjudicator in accordance with clause 6.1 or, where the context may admit, an alternate Scheme Adjudicator in accordance with clause 6.1(b).

"Scheme Booklet" means the document bearing that title and dated the date hereof, explaining the effect of the Scheme to Scheme Creditors in compliance with section 412(1) of the Act and sent to Scheme Creditors in advance of the Creditors' Meeting.

"Scheme Business" means all the Scheme Company's Reinsurance Contracts, excluding the Excluded Liabilities.

"Scheme Costs" means:

(a)                        all costs, charges, expenses, disbursements and other debts incurred by the Scheme Company in the course of implementing and carrying out the Scheme, and of complying with the provisions of the Act; and

(b)                        insofar as they do not fall within (a), all costs, charges, expenses and disbursements incurred by the Scheme Company, and the remuneration of the Scheme Actuary and the Scheme Adjudicator, to the extent that such costs, charges, expenses, disbursements and remuneration are referable to the implementation of the Scheme.

"Scheme Creditor" means a creditor of the Scheme Company in respect of a Claim.

"Scheme Period" means the period beginning on the Effective Date and ending on the Termination Date.

"Submit" means duty to complete and submit a Claim Form to the Scheme Company (in accordance with the instructions thereon) whether Electronically or by Post, and "Submitted" and "Submitting" shall be construed accordingly.

"Tax" means any form of taxation, levy, deduction, duty, charge, contribution, withholding, or impost of whatever nature (including any related fine, penalty, surcharge or interest) imposed, collected, assessed or withheld by, or payable to, a Tax Authority.

"Tax Authority" means any government, state, municipality, or any local, state, federal or other fiscal, revenue, customs or excise authority, body or official, anywhere in the world in relation to Tax (including, in Australia, without limitation, the Australian Taxation Office or any successor thereto).

"Termination Date" has the meaning given to that term in clause 8.1.

"Valuation Date" means 30 June 2006.

1.2                     Interpretation

In the Scheme, unless the context otherwise requires, or the Scheme expressly provides otherwise:

(a)                        references to the Scheme include this Attachment;

(b)                        references to "clauses" and "sub-clauses" are references to the clauses and sub-clauses, respectively, of the Scheme;

(c)                        references to a "person" include an individual, firm, partnership, company, corporation, unincorporated body of persons or any state or state agency;

(d)                        references to a statute or a statutory provision or to a statutory instrument or provision of a statutory instrument, include the same as subsequently modified, amended or re-enacted from time to time;

(e)                        the singular includes the plural and vice versa and words importing one gender shall include both genders;

(f)                         headings and subheadings of this Scheme are for ease of reference only, and shall not affect the interpretation of the Scheme; and

(g)                        references to currency are to Australian currency.

1.3                     Participation in the Scheme

The Scheme Actuary and the Scheme Adjudicator have each consented to act in relation to the Scheme.

(a)                        The purpose of the Scheme is to provide a procedure for the agreement, determination or adjudication, and satisfaction of Claims as early as practicable.

(b)                        The Scheme shall apply to all Claims. The Scheme will not apply to any Excluded Liabilities.

3.1                     Restraint on proceedings by Scheme Creditors

(a)                        Without prejudice to clause 3.1(c), except with the prior express written consent of the Scheme Company, no Scheme Creditor shall be permitted to institute or continue, any Proceedings whatsoever against the Scheme Company or its Property, to establish the existence, or amount, of a Claim.

(b)                        Except to the extent that the Scheme Company has failed to perform any obligation to make a payment to a Scheme Creditor under the provisions of the Scheme, no Scheme Creditor shall be entitled to institute or continue any Proceedings whatsoever against the Scheme Company, or its Property, to enforce payment in whole, or in part, of any Claim.

(c)                        Nothing in the Scheme shall preclude the Scheme Company from commencing or continuing any Proceedings against a Scheme Creditor. For the avoidance of doubt, the relevant Scheme Creditor shall be entitled to assert and prosecute a Claim against the Scheme Company in such Proceedings provided that:

(i)                          the relevant Claim arises out of a Reinsurance Contract that is the subject matter of the Scheme Company's Claim in the relevant Proceedings; and

(ii)                        the relevant Claim does not require the presence of third parties over whom the court or tribunal in question cannot have jurisdiction for its adjudication.

3.2                     Effect of breach of clause 3.1(a) restraint

(a)                        If, and to the extent that, a Scheme Creditor obtains an order, judgment, decision or award of a court or tribunal against the Scheme Company in relation to a Claim in contravention of clause 3.1(a), such order, judgment, decision or award shall not give rise to an Agreed Claim (Pre Set-Off), and shall be disregarded when determining the Liability of the Scheme Company in respect of the relevant Claim.

(b)                        If any Scheme Creditor takes any action after the Effective Date, which is prohibited by clause 3.1(a) or 3.1(b), it shall, without prejudice to any other rights of the Scheme Company, be treated as having received an advance payment on account of its Claim, equal to the amount or gross value of any money, Property, benefit or advantage obtained by him at the expense of the Scheme Company as the result of such action (an Advance Payment) and the extent to which it is entitled to receive any payment under the Scheme in respect of its Final Determined Claim shall be determined accordingly.

(c)                        For the purpose of clause 3.2(b),  the gross value of any Advance Payment shall be conclusively determined by the Scheme Company and, without limitation, may include such amounts as the Scheme Company may consider to be appropriate by way of interest, costs, charges or expenses incurred by the Scheme Company as a consequence of the relevant Scheme Creditor acting in a manner prohibited by clause 3.1(a) or 3.1(b).

(d)                        If the amount of an Advance Payment which a Scheme Creditor is treated as having received pursuant to clause 3.2(b) (such Advance Payment, if necessary, being converted at the Relevant Rate of Exchange into one or more of the currencies in which the Scheme Creditor has an Final Determined Claim), exceeds the total amount the relevant Scheme Creditor would otherwise be entitled to receive pursuant to the Scheme, then, without prejudice to any other rights of the Scheme Company, the Scheme Creditor shall immediately pay the excess to the Scheme Company, failing which interest shall accrue on such excess for the period from the date upon which the Scheme Creditor's Final Determined Claim is determined under the Scheme, to the date of payment of such excess, at the annual rate which is the Bill Rate applicable at the date of determination. Interest shall accrue from day-to-day for the duration of such period (from and including the first day thereof), and shall be calculated on the basis of the actual number of days elapsed and a 360-day year and shall be payable on the last day of such period. Such excess and interest shall be held on trust for the Scheme Company by the relevant Scheme Creditor until paid.

3.3                     Interest

(a)                        For the purpose of making payments under the Scheme, where a Claim includes an element of Admissible Interest, such Admissible Interest shall be payable for the period from the date provided for in the relevant Reinsurance Contract or statute, to the day immediately preceding the date on which payment is made in respect of the relevant Final Determined Claim.

(b)                        No payment shall be made under the Scheme in respect of any part of a Claim which represents interest which is not Admissible Interest or Default Interest.

(c)                        Any payment made under the Scheme in respect of any part of a Claim which represents Admissible Interest or Default Interest shall be made net of any necessary deduction or withholding for, or on account of, Tax.

4.1                     Valuation Date

All Claims shall be valued as at the Valuation Date, provided that any amounts paid by the Scheme Company or by any other person to the relevant Scheme Creditor in full or partial satisfaction of a Claim against the Scheme Company from the Valuation Date up to and including the Effective Date, shall be taken into account in calculating that Scheme Creditor's aggregate Final Determined Claim against the Scheme Company.

4.2                     Notice of Effective Date and availability of Claim Forms

(a)                        The Scheme Company shall, as soon as reasonably practicable, and in any event within 15 Business Days of the Effective Date, send by Post to:

(i)                          each Scheme Creditor known to it as at the Effective Date and for whom it has a postal address;

(ii)                        Known Brokers; and

(iii)                       Authorised Insurers,

the following documents:

(iv)                      notice that the Scheme has become effective, confirming the Effective Date and the Final Claims Submission Date and calling for all Scheme Creditors to Submit their Claim Forms by the Final Claims Submission Date; and

(v)                        a Claim Form.

(b)                        In addition, the Scheme Company shall as soon as reasonably practicable, and in any event within 15 Business Days of the Effective Date, cause to be published in the same newspaper and publications in which the Creditors' Meeting was advertised or, if this should not prove possible, in such other publications as it shall deem appropriate, notice:

(i)                          that the Scheme has become effective, giving the Effective Date;

(ii)                        of the Final Claims Submission Date; and

(iii)                       calling for all Scheme Creditors to Submit their Claim Forms by the Final Claims Submission Date.

(c)                        Where the Scheme Company is notified of a Scheme Creditor or a Scheme Creditor's postal address after the Effective Date, but before the Final Claims Submission Date, the Scheme Company shall send, within 14 days of being so notified and, if practicable, prior to the Final Claims Submission Date, the relevant Scheme Creditor the information referred to in clause 4.2(a).

4.3                     Completing Claim Forms

(a)                        Each Scheme Creditor shall Submit with its Claim Form, information relating to its Claims as at the Valuation Date, by reference to each Reinsurance Contract in respect of Scheme Business pursuant to which the relevant Claims arise, together with such details as the Scheme Creditor may have of the Broker or Brokers who placed the relevant business.

(b)                        The information provided by the relevant Scheme Creditor shall be provided separately for Claims which relate to Paid Losses, Notified Outstanding Claims and IBNR. In respect of:

(i)                          (Paid Losses): Scheme Creditors shall provide with the Claim Form an analysis supporting each Claim in respect of Paid Losses, including (where relevant), but not limited to, loss bordereaux certified by the leading underwriter, and/or copies of loss reports from policyholders/cedants or their legal representatives to the Scheme Creditor;

(ii)                        (Notified Outstanding Claims): Scheme Creditors shall provide on or with the Claim in respect of a Notified Outstanding Claim, including (where relevant), but not limited to, loss bordereaux certified by the leading underwriter and/or copies of loss reports from policyholders/cedants or their legal representative to the Scheme Creditor and/or closing statements in respect of agreed Claims not yet settled by the Scheme Creditor, for each Claim; and

(iii)                       (IBNR): Scheme Creditors shall, insofar as is reasonably practicable, provide with the Claim Form, an amount for IBNR and details of the basis for the estimate for each Claim in respect of IBNR, and any relevant documentary evidence to show the reasonableness of such estimate, including (but not limited to):

A.                         cumulative data triangles of paid loss data; and/or

B.                         cumulative data triangles of incurred loss data; and/or

C.                         cumulative data triangles of incurred loss ratios; and/or

D.                         loss bordereaux certified by the leading underwriter; and/or

E.                          copies of loss reports from policyholders/cedants to the Scheme Creditor; and/or

F.                          any relevant actuarial reports; and/or

G.                         any other supporting information.

(c)                        Where it has sufficient information, the Scheme Company shall pre-complete each Claim Form sent to any Scheme Creditor known to it as at the Effective Date with its estimate of the Claims of the Scheme Creditor (other than in respect of IBNR). Scheme Creditors shall not be required to Submit a Claim Form, or provide any additional supporting information, in respect of such amounts. For the avoidance of doubt, only amounts which have been pre-completed by the Scheme Company on the relevant Scheme Creditor's Claim Form are "Agreed Paid Losses" for the purposes of clause 4.4(c). If a Scheme Creditor wishes to receive payment in respect of any other Claims, it must submit a Claim Form in respect of such Claims, prior to the Final Claims Submission Date.

(d)                        In respect of each Reinsurance Contract, the Scheme Creditor shall also provide details of:

(i)                          all Liabilities owed by it to the Scheme Company in relation to such Reinsurance Contract; and

(ii)                        all reinstatement premiums payable in relation to such Reinsurance Contract.

(e)                        Subject to clause 4.4(b), a Claim Form must be Submitted to the Scheme Company on, or before, the Final Claims Submission Date. Except as provided for in clause 4.3(f), the information contained in the Claim Form shall be binding on the Scheme Creditor as to the matters referred to therein.

(f)                         Each Scheme Creditor shall be entitled to Submit a new or revised Claim Form and to provide revised or further information in respect of its Claims, together with any relevant supporting documentation (as contemplated by clause 4.3(e)), to the Scheme Company in each case so as to reach the Scheme Company:

(i)                          any time on or before the Final Claims Submission Date; or

(ii)                        prior to the date on which it has been notified in accordance with clause 9.4 that the relevant Claim has become an Agreed Claim (Pre Set-Off),

whichever is the earlier.

(g)                        Where a Scheme Creditor Submits more than one Claim Form or Submits an amended Claim Form in accordance with this clause, the Scheme Company shall only consider the Claim Form or the version of the Claim Form last Submitted.

(h)                        A Scheme Creditor may, by placing a tick in the relevant box on the Claim Form and then Submitting that Claim Form, elect to incorporate into its Claim Form, the Claims information contained in its proxy and voting form which it submitted to the Scheme Company for the purpose of voting at the Creditors' Meeting. A Claim Form will only validly incorporate the Claims information contained in, or supplied with, the said proxy and voting form pursuant to this clause, if the Claims information sections of the Claim Form are left blank by the Scheme Creditor. The provisions of this clause are without prejudice to the Scheme Creditor's rights under clause 4.3(f).

(i)                          Determination of the amount of the Claim should take into account the normal negotiated process of discounting the value of future expenses to be incurred by the claimant (such as future care costs) in recognition of the fact that the underlying claim is to be settled by way of immediate lump sum as opposed to by way of an ongoing stream of expense reimbursement. The Scheme Company will pay the amount of the Claim so agreed at face value provided the Scheme Creditor expects to settle the underlying claim within five years of the Valuation Date. Where the settlement date of the underlying claim is expected to be beyond five years of the Valuation Date, the Claim will be reduced by 5.5% per annum for the period between five years of the Valuation Date and the expected settlement date.

4.4                     Failure to return Claim Forms

(a)                        Subject to clauses 4.3(c), 4.4(b) and 4.4(c), no Scheme Creditor shall be entitled to claim under, or receive any payment under, the Scheme in respect of a Claim, unless that Claim has been notified to the Scheme Company by the Scheme Creditor by means of a Claim Form Submitted to the Scheme Company no later than the Final Claims Submission Date.

(b)                        The Scheme Company may, in its absolute and sole discretion, allow a Claim Form that was not Submitted on or before the Final Claims Submission Date, to be determined in accordance with the provisions of the Scheme as if that Claim Form had been Submitted on or before the Final Claims Submission Date.

(c)                        If a Scheme Creditor has not Submitted a Claim Form on or before the Final Claims Submission Date, that Scheme Creditor's Claim will be valued at the Agreed Paid Losses, if any. To the extent that there are no Agreed Paid Losses, the Scheme Creditor's Claim shall be valued at zero, and such Claim shall be deemed satisfied in full. For the avoidance of doubt, for the purpose of this clause, the Scheme Company's determination of the amount of Agreed Paid Losses shall be final and binding on the Scheme Company and the relevant Scheme Creditor, and there shall be no right of appeal in respect thereof, whether pursuant to the Scheme or otherwise.

4.5                     Review of Claim Forms and determination of Agreed Claims (Pre Set-Off)

(a)                        The Scheme Company will consider the information concerning a Scheme Creditor's Claims on its Claim Form including, but not limited to, consideration of whether any submissions are accurate and/or adequately supported with relevant documentation, whether any estimates in relation to future or contingent Claims are reasonable and have been calculated in accordance with the Estimation Methodology, and whether there is any applicable reinstatement premiumor set-off.

(b)                        If the Scheme Company agrees with a Scheme Creditor's estimate of the value of any of its Claims as set out in its Claim Form, it shall, as soon as reasonably practicable, notify the relevant Scheme Creditor of such agreement in writing in accordance with clause 9.4. Such estimated value, together with any unpaid Agreed Paid Losses, shall be the Scheme Creditor's Agreed Claim (Pre Set-Off) in respect of each such Claim.

(c)                        If the Scheme Company does not agree with the information provided on a Claim Form in respect of a Claim, it shall, as soon as reasonably practicable, notify the relevant Scheme Creditor in writing, in accordance with clause 9.4, that the Claim Form has not been agreed, and advise the Scheme Creditor in writing of those matters which are not agreed, the reasons for failing to agree to such matters, and any additional information that the Scheme Company may require to further consider the Claim. The Scheme Creditor shall provide such additional information no later than 30 days after deemed receipt (in accordance with clause 9.4(b)) of such a request.

(d)                        If the relevant Scheme Creditor provides any additional information required pursuant to clause 4.5(c), within the time period set out therein, the Scheme Company will then endeavour to agree the disputed matters and the relevant Claim, as soon as reasonably practicable. In the event that the Claim is so agreed, the Scheme Company shall, as soon as reasonably practicable, notify the Scheme Creditor in writing of its agreement and of the amount of the Agreed Claim (Pre Set-Off).

(e)                        If the relevant Scheme Creditor:

(i)                          fails to provide any additional information required pursuant to clause 4.5(c) within the time period by that clause;

(ii)                        provides inadequate or insufficient additional information (in the opinion of the Scheme Company); or

(iii)                       does provide such additional information, but the Scheme Company is still unable to agree with the information on the Scheme Creditor's Claim Form,

the Scheme Company may send the Scheme Creditor a copy of a Claim Form in relation to the relevant Claim, completed in such manner as it is prepared to accept, and inform the Scheme Creditor that, if it is rejected by the Scheme Creditor, it will refer the Claim to the Scheme Adjudicator as a Disputed Claim. If the Scheme Creditor wishes its Claim to be referred to the Scheme Adjudicator, it must give notice thereof to the Scheme Company, in accordance with clause 9.4, within 30 days of deemed receipt of the Scheme Company's communication. If such notice is received from the Scheme Creditor, the Scheme Company shall refer the relevant Claim to the Scheme Adjudicator as a Disputed Claim. If the Scheme Creditor does not respond to the communication from the Scheme Company within 30 days of deemed receipt of such communication, the Claim Form so completed by the Scheme Company, will be deemed to be determinative of the disputed matters and will form the basis of the Scheme Creditor's Agreed Claim (Pre Set-Off).

(f)                         For the avoidance of doubt, notwithstanding any other provision of this clause, the Scheme Company shall, at any time, by notice to the Scheme Creditor concerned given in accordance with clause 9.4, be entitled to:

(i)                          require the production by such Scheme Creditor of such further information, or such documentary or other evidence as it may reasonably require to assist it in agreeing the relevant Claim (in which case, the Scheme Creditor must produce such information within 30 days of deemed receipt of such notice and the provisions of clause 4.5(d) or 4.5(e) shall apply with the necessary changes being made); and

(ii)                        upon notice to the relevant Scheme Creditor in accordance with clause 9.4, refer a Claim to the Scheme Adjudicator.

(g)                        The amount of any Agreed Claim (Pre Set-Off) determined or agreed under clause 4.5(b), (d) or (e), shall be final and binding on the Scheme Company and the relevant Scheme Creditor and, subject to clause 4.16, there shall be no right of appeal in respect thereof.

(h)                        In the event that a Claim contained in a Claim Form Submitted in accordance with the requirements of clause 4.3, has not become a Final Determined Claim by 11:59 pm Sydney time on the day on which a period of 365 days from the Final Claims Submission Date elapses (the Long Stop Date) the Scheme Company shall within a further 7 days, refer such Claim to the Scheme Adjudicator as a Disputed Claim (unless, and on such terms as, both the Scheme Creditor and the Scheme Company shall otherwise agree). The Scheme Company shall send notice in writing in accordance with clause 9.4 to the Scheme Creditor concerned, that the Claim has become a Disputed Claim and has been referred to the Scheme Adjudicator and the provisions of clause 4.6 shall apply to such Disputed Claim.

4.6                     Adjudicator dispute resolution procedure

(a)                        In referring a Claim to the Scheme Adjudicator in accordance with clause 4.5(e), 4.5(f) or 4.5(h), the Scheme Company shall provide the Scheme Adjudicator with a copy of the Claim Form relating to such Claim (as Submitted by the Scheme Creditor and, where applicable, as amended by the Scheme Company), and a copy of any notice, statement or correspondence sent or received by the Scheme Company in connection with the Claim. The Scheme Adjudicator shall have access to all of the Scheme Company's records and information in the possession of, or under the control of, the Scheme Company, which the Scheme Adjudicator considers he needs to resolve the dispute concerning such Claim subject to any claim for legal professional privilege.

(b)                        The Scheme Adjudicator shall consider the records and information sent to him in accordance with clause 4.6(a), and shall have regard to (but not be bound by) the Estimation Methodology, in relation to any Claim referred to him and, as soon as reasonably practicable, shall notify the Scheme Company and/or the Scheme Creditor concerned as to whether he requires:

(i)                          further documents, data or information, in which case the relevant person shall, within 30 days after deemed receipt of such notice, provide the Scheme Adjudicator with the required documents, data or information; and/or

(ii)                        the Scheme Company and/or the relevant Scheme Creditor to appear before him and address him on any matter he shall determine, in which case the Scheme Company and/or the relevant Scheme Creditor (or in either case its duly authorised representative) shall appear on such date, which shall be within 30 days after deemed receipt of such notice, and at such place as the Scheme Adjudicator shall prescribe. The Scheme Adjudicator shall be entitled to prescribe and lay down such procedures or provisions for the purposes of the appearance of the parties before him, as he, in his sole and absolute discretion, deems appropriate (including, without limitation, making provision for meetings via a video conferencing facility), and shall be entitled to call for such evidence, documents, data and information as he may require to assist him in reaching his decision.

(c)                        At the request of a Scheme Creditor, the Scheme Adjudicator may attend a meeting with that Scheme Creditor to discuss its Claim. Any such meeting may take place in person or via a video conferencing facility, and the Scheme Adjudicator shall be entitled to travel to another jurisdiction in order to attend a meeting with a Scheme Creditor.

(d)                        The Scheme Adjudicator may (but is not obliged to) extend any time period laid down by clause 4.6(b) as he thinks fit for any one, or more, or all, Disputed Claims.

(e)                        The Scheme Adjudicator shall be entitled to consult with such advisers, including legal advisers and experts and actuaries from any relevant jurisdiction, as he may deem appropriate in considering any Claim referred to him. The Scheme Adjudicator will consider all documents, data or information Submitted by a Scheme Creditor in support of its Claim including details of relevant actuarial principles applying in other jurisdictions.

(f)                         If any person concerned fails to provide further documents, data or information in accordance with clause 4.6(b)(i) above, or fails to appear before the Scheme Adjudicator in accordance with clause 4.6(b)(ii) above, the Scheme Adjudicator shall make such determination as he sees fit in relation to the relevant Disputed Claim on the basis of the information then available to him.

(g)                        In adjudicating on any Disputed Claim, the Scheme Adjudicator shall act as an expert and not as an arbitrator.

(h)                        The Scheme Adjudicator shall notify the relevant Scheme Creditor and the Scheme Company of his determination in respect of the relevant Disputed Claim, and of the resulting amount of the Scheme Creditor's Agreed Claim (Pre Set-Off), by notice given in accordance with clause 9.4, within 30 days after the later of:

(i)                          receipt of the documents accompanying the reference of the Disputed Claim to him in accordance with clause 4.6(a);

(ii)                        the provision of further documents, data or information to him pursuant to clause 4.6(b)(i);

(iii)                       the conclusion of any appearance before him pursuant to clause 4.6(b)(ii); or

(iv)                      the failure of the relevant party to provide such documents, data or information in accordance with clause 4.6(b)(i), or to appear before him in accordance with clause 4.6(b)(ii).

(i)                          Any such determination shall, to the extent permitted by law and subject to section 1321(a) of the Corporations Act, be final and binding on the Scheme Company and the relevant Scheme Creditor, and neither the Scheme Creditor nor the Scheme Company shall have any right of appeal from such determination. Neither the Scheme Creditor, nor the Scheme Company, shall have any right to make any claim against the Scheme Adjudicator in respect of such determination, save in respect of his negligence, wilful default, wilful breach of duty or trust, fraud or dishonesty.

(j)                          Notwithstanding clauses 6.2(b) and 6.3(c)(i), the Scheme Adjudicator must before adjudicating the Disputed Claim:

(i)                          advise the Scheme Creditor in writing that remuneration, costs, charges and expenses incurred by the Scheme Adjudicator in respect of a Disputed Claim, including the fees and expenses of any adviser or expert consulted by him pursuant to clause 4.6(e) (the Adjudication Costs) may be apportioned between the Scheme Company and the Scheme Creditor in such proportions as the Scheme Adjudicator may determine in his absolute discretion and shall be paid in accordance with clauses 4.6(k) and 4.6(l), subject to section 1321(a) of the Corporations Act; and

(ii)                        provide to the Scheme Creditor an estimate of the Adjudication Costs including an estimate of the Scheme Creditor's portion of the Adjudication Costs.

Any costs, charges and expenses incurred by the relevant Scheme Creditor or by the Scheme Company shall be borne respectively by those parties.

(k)                        The amount of the Scheme Company's share of such Adjudication Costs, calculated pursuant to clause 4.6(j), shall be paid out of the Property of the Scheme Company, in accordance with clause 6.2(b), as Scheme Costs.

(l)                          The amount of the relevant Scheme Creditor's share of such Adjudication Costs calculated in accordance with clause 4.6(j) shall, at the Scheme Adjudicator's option, be either:

(i)                          paid out of the Property of the Scheme Company in accordance with clause 6.2(b) as Scheme Costs, in which case:

A.                         the Scheme Creditor shall pay the Scheme Company the amount so paid by the Scheme Company as soon as reasonably practicable; or

B.                         at the option of the Scheme Company, the Scheme Company may deduct such amount from that Scheme Creditor's aggregate Agreed Claim (Pre Set-Off) when calculating its Final Determined Claim pursuant to clause 4.7; or

(ii)                        paid by the Scheme Creditor to the Scheme Adjudicator directly.

4.7                     Determination of Final Determined Claims

(a)                        Subject to clause 4.13, following determination of the Agreed Claim (Pre Set-Off), in respect of all of a Scheme Creditor's Claims pursuant to clause 4.5(b), 4.5(d), 4.5(e), 4.6(f) or 4.6(h), the Scheme Company shall determine the Scheme Creditor's Final Determined Claim (which may be denominated in more than one currency) by:

(i)                          deducting from the aggregate Agreed Claim (Pre Set-Off) any Advance Payments, any sum paid in accordance with clause 4.1 and any sum to be deducted pursuant to clause 4.6(l); and then

(ii)                        deducting any reinstatement premium payable in accordance with the terms of the relevant Reinsurance Contract; and then

(iii)                       applying any applicable set-off pursuant to clause 4.10.

For the avoidance of doubt, if the balance of an account is in favour of the Scheme Company, then that amount will be payable by the Scheme Creditor to the Scheme Company and there shall be no Final Determined Claim in respect of which that Scheme Creditor may receive payment.

(b)                        The Scheme Company shall notify the Scheme Creditor in writing in accordance with clause 9.4, of the value of its Final Determined Claim (the Final Determined Claim Notice) as soon as reasonably practicable (the Final Determined Claim Notification Date). Except in the case of manifest error, being an arithmetical or typographical error which is apparent on the face of the document concerned, a Scheme Creditor shall not be entitled to challenge the amount of the Final Determined Claim set out in the Final Determined Claim Notice, except where such challenge is:

(i)                          in respect of the amount of any deduction or set-off determined by the Scheme Company under clause 4.7(a)(i), (ii) or (iii), in respect of the Scheme Creditor's Agreed Claim (Pre Set-Off) (the Disputed Set-Off or Deduction); and

(ii)                        made by notice given in accordance with clause 9.4, within 30 days of the Final Determined Claim Notification Date (the Disputed Final Determined Claim Notice).

Where no such challenge is made within this 30 day period, the Scheme Company's valuation shall be deemed to have been accepted by the Scheme Creditor and shall constitute such Scheme Creditor's Final Determined Claim.

(c)                        If a Scheme Creditor wishes to challenge the value of the Disputed Set-Off or Deduction, the Scheme Company has attributed to its Final Determined Claim in accordance with clause 4.7(b), it shall, within 30 days of the Final Determined Claim Notification Date, issue the Disputed Final Determined Claim Notice to the Scheme Company, which notice shall set out in writing those matters which are not agreed and the reasons for failing to agree such matters and provide any relevant additional information to support its position. The Scheme Company and the Scheme Creditor shall endeavour to agree the disputed matters and the relevant Final Determined Claim set-off or deduction, if any, as soon as reasonably practicable. In the event that a set-off or deduction is agreed between them, the Scheme Company shall provide the relevant Scheme Creditor with written confirmation, in accordance with clause 9.4, of the agreed valuation of its Final Determined Claim, taking into account the agreed set‑off or deduction, and such valuation shall constitute the Scheme Creditor's Final Determined Claim for the purposes of the Scheme.

(d)                        If the disputed matters and the relevant Final Determined Claim are not resolved between the Scheme Creditor and the Scheme Company within 30 days of the date of the Disputed Final Determined Claim Notice, the Resolution Period, the Scheme Creditor may, no later than 30 days after the end of the Resolution Period, notify the Scheme Company in writing that it wishes the valuation of the Disputed Set-Off or Deduction to be referred to the Scheme Adjudicator. If such notification is received from the Scheme Creditor, the Scheme Company shall refer the matter to the Scheme Adjudicator as a Disputed Claim. If the Scheme Creditor does not issue a request for the value of its Disputed Set-Off or Deduction to be adjudicated before the expiry of that 30 day period, the last value attributed to the Final Determined Claim by the Scheme Company shall be deemed to have been accepted by the Scheme Creditor, and shall constitute its Final Determined Claim.

(e)                        The Scheme Adjudicator's adjudication of Final Determined Claims shall be conducted in accordance with the Dispute Resolution Procedure set out in clause 4.6, which provisions shall apply with the necessary changes being made except that the information initially provided to the Scheme Adjudicator by the Scheme Company in accordance with clause 4.6(a), shall consist of documentation evidencing the value of, the Disputed Set-Off or Deduction, together with a copy of any statement, notice, correspondence or documentation sent or received by the Scheme Company in relation to the valuation of the Scheme Creditor's Disputed Set-Off or Deduction.

(f)                         In determining the value of a Scheme Creditor's Disputed Set-Off or Deduction in accordance with clause 4.7(e) above, the Scheme Adjudicator shall take into account the Scheme Creditor's share (if any) of the Adjudication Costs described in clause 4.6(j).

(g)                        The value of a Scheme Creditor's Disputed Set-Off or Deduction, determined in accordance with clauses 4.7(a) to 4.7(f) shall, to the extent permitted by law, including section 1321(a) of the Act, be binding on the relevant Scheme Creditor and the Scheme Company as the amount of that Scheme Creditor's Disputed Set-Off or Deduction, and by virtue of its deduction from the Agreed Claim (Pre Set-Off), its Final Determined Claim, and there shall be no right of appeal in respect thereof.

4.8                     Extension of time limits

Except in respect of the Final Claims Submission Date, and the Long Stop Date, the Scheme Company may, at its absolute and sole discretion, extend any time period referred to in clause 4 (except for any time period set out in clause 4.6 which, in accordance with clause 4.6(c), shall be extended at the sole and absolute discretion of the Scheme Adjudicator), for any one or more of its Scheme Creditors and whether in respect of any one, or more, or all of such Scheme Creditor's Claims against it.

4.9                     Scheme Creditors to provide assistance

(a)                        During the Scheme Period, Scheme Creditors shall provide the Scheme Company and/or the Scheme Actuary, and/or the Scheme Adjudicator, with all reasonable assistance required by any of them in connection with the Scheme, and shall provide such assistance as they may reasonably require in connection with the recovery of any Property, or the enforcement of any obligations, owed to the Scheme Company.

(b)                        The Scheme Company shall provide the Scheme Actuary and/or the Scheme Adjudicator with all reasonable assistance required by them in connection with the Scheme.

4.10                 Set-off

(a)                        Where a Scheme Creditor owes a Liability to the Scheme Company in respect of any Reinsurance Contract (including, for the avoidance of doubt, where such Liability is contingent and/or prospective), an account shall be taken of the sums due from the relevant Scheme Creditor to the Scheme Company and from the Scheme Company to that Scheme Creditor, in relation to such Scheme Business. Sums (including contingent or prospective sums) owing by a Scheme Creditor to the Scheme Company in respect of the Scheme Business, will be set-off against sums owing by the Scheme Company to that Scheme Creditor in respect of Scheme Business. For the avoidance of doubt, pursuant to this clause, sums owing by a Scheme Creditor to the Scheme Company in respect of the latter's Scheme Business shall include, without limitation, sums owing by that Scheme Creditor in its capacity as reinsurer of the Scheme Company's Scheme Business.

(b)                        For the avoidance of doubt, contingent and prospective Claims against the Scheme Company, the amount of which have been determined as Agreed Claims (Pre Set-Off) pursuant to the terms of the Scheme, shall be included in any account taken pursuant to clause 4.10(a), including where the relevant Agreed Claims (Pre Set-Off) give rise to a reinsurance or other indemnity claim by the Scheme Company against a reinsurer/indemnitor who is also a Scheme Creditor of the Scheme Company.

(c)                        Only the balance of an account, if any, referred to in clause 4.10(a) and payable to a Scheme Creditor, as well as other sums deductible in accordance with the Scheme, shall be capable of becoming a Final Determined Claim in respect of which that Scheme Creditor may receive payment.

(d)                        The discount applying for the purposes of set-off is as follow:

(i)                          projected obligations payable within five years of the Valuation Date will be paid at face value;

(ii)                        projected obligations payable beyond five years of the Valuation Date will be discounted at a rate of 5.5% per annum for the period between five years of the Valuation Date and the expected payment date of the obligation.

4.11                 Treatment of agents

The Scheme Company shall be entitled (but shall not be bound) to treat any underwriting agent (including, but not limited to, a manager of an underwriting pool, a managing general agent or a holder of a line-slip or binding authority), as a single Scheme Creditor of the Scheme Company in respect of the Claims of its principal(s) and as a single debtor of the Scheme Company in respect of Liabilities owed to the Scheme Company by its principal(s).

4.12                 Funding

(a)                        Brokers who have funded Claims shall not constitute Scheme Creditors for the purposes of asserting such Claims in the Scheme unless:

(i)                          they have acquired an assignment of the funded Claim or written confirmation from the beneficiaries of such funding that the Brokers are entitled to Submit a Claim Form in the Scheme in the place of such beneficiaries in respect of the funded Claim, such assignment or confirmation being in a form acceptable to the Scheme Company; or

(ii)                        such funding took place:

A.                         pursuant to a contractual obligation of the Broker to the Scheme Company; or

B.                         in circumstances where, as a matter of law, the Scheme Company is liable to indemnify or reimburse such Broker.

(b)                        For the avoidance of doubt, any Broker claiming in respect of a funded Claim shall Submit a Claim Form in respect of such Claim in accordance with the provisions of clauses 4.3(a) to 4.3(f). The supporting information to be provided pursuant to clause 4.3(b) shall, unless the Broker is claiming pursuant to clause 4.12(a)(ii)B, include a copy of the relevant assignment, written confirmation or contract referred to in clause 4.12(a)(ii).

4.13                 Currency

Except where the Scheme Company and a Scheme Creditor otherwise agree:

(a)                        Claims and Agreed Claims (Pre Set-Off) shall be denominated in the currency of the relevant Reinsurance Contract.

(b)                        For the purpose of clause 4.7, the aggregate Agreed Claim (Pre Set-Off) may be denominated in more than one currency and the deductions and application of set-off, shall be applied:

(i)                          first against that element of the Agreed Claim (Pre Set-Off) which is denominated in the same currency as the items to be deducted or set-off (as the case may be);

(ii)                        thereafter against the predominant currency of the Agreed Claim (Pre Set-Off) until exhausted; and

(iii)                       thereafter against the next most predominant currency and so on.

(c)                        For the purpose of converting amounts into a predominant currency, as required by clause 4.13(b) and 4.13(d), such amounts shall be converted at the Relevant Rate of Exchange.

(d)                        Final Determined Claims shall be denominated and paid in the predominant currency in which Claims arise, unless otherwise requested by the Scheme Creditor (subject to clause 4.13(e) below), after application of the deductions and set-off required under clause 4.7.

(e)                        Where a Scheme Creditor requests that its Final Determined Claims be paid in an alternative currency to the predominant currency of its Claims, the Scheme Company may in its absolute and sole discretion, decide to accept or decline such a request.

4.14                 Payment of Final Determined Claims

(a)                        The Scheme Company shall not agree any Claims after the Effective Date, nor pay any Claims agreed after the Effective Date, otherwise than pursuant to the Scheme, save where such agreement is in the nature of a commutation or policy buy-back which is negotiated upon a basis which is in all material respects the same as that provided for under the Scheme.

(b)                        The Scheme Company shall effect payment in full of each Scheme Creditor's Final Determined Claim as soon as reasonably practicable after determination, in accordance with the Scheme. Where the Scheme Company fails to make payment in full of a Scheme Creditor's Final Determined Claim within 90 days from (but not including) the date of such Final Determined Claim having been determined, interest shall accrue on that part of the Final Determined Claim which remains unpaid, at the annual rate which is the Bill Rate in force at such time. For the avoidance of doubt, a Scheme Creditor's Final Determined Claim shall be deemed to have been determined on the day:

(i)                          upon which the 30 day period referred to in clause 4.7(b) expires, provided that no Disputed Final Determined Claim Notice has been issued during this period;

(ii)                        of any deemed receipt by the Scheme Creditor of a written confirmation given by the Scheme Company to the relevant Scheme Creditor of the agreed valuation of that Scheme Creditor's Final Determined Claim in accordance with clause 4.7(c);

(iii)                       upon which the 30 day period after the Resolution Period referred to in clause 4.7(d) expires (provided that the Scheme Creditor has not notified the Scheme Company in writing that it wishes the valuation of its Final Determined Claim to be referred to the Scheme Adjudicator during such period);

(iv)                      of any deemed receipt by the Scheme Company of notification from the Scheme Adjudicator of his determination of the amount of the Final Determined Claim.

(c)                        All payments pursuant to the Scheme shall be made, in the absolute discretion of the Scheme Company and at its expense:

(i)                          by electronic funds transfer to such bank account as the Scheme Creditor may from time to time notify to the Scheme Company; or

(ii)                        if requested by the Scheme Creditor, by cheque in favour of the Scheme Creditor (or as the Scheme Creditor may direct by written notice in accordance with clause 9.4 sent by Post at the risk of the Scheme Creditor to the last address of the Scheme Creditor known to the Scheme Company or to such other address as the Scheme Creditor may notify to the Scheme Company); or

(iii)                       in such other manner as the Scheme Company may determine,

and the Scheme Company shall be entitled to require a Scheme Creditor, or other person to execute such forms of discharge, receipt or other documents as it may determine in connection with the making of any payment pursuant to the Scheme.

(d)                        Subject to clause 4.14(e) below, any payment pursuant to this clause 4.14 which is uncashed or otherwise unclaimed by the intended payee within 6 months of payment will be transferred into a separate account and will be dealt with in accordance with the Unclaimed Money Act 1995 (NSW). The Final Determined Claim to which it relates shall be deemed to have been settled in full.

(e)                        The Scheme Company reserves the right to re-issue relevant payment instructions or unpaid cheques in respect of any unclaimed amount up to and including the Termination Date, if, in its sole and absolute discretion, it shall deem fit.

(f)                         Payments made pursuant to this clause to a Scheme Creditor or in accordance with clause 4.14(d) shall, for all purposes, constitute a valid discharge of the Scheme Company in respect of such Final Determined Claim to the extent of such payment. For the purpose of this clause 4.14, receipt by the receiving bank of the amount of an electronic funds transfer shall be satisfaction of the obligation to pay the amount transferred, and payment of any cheque by the bank on which it is drawn shall be satisfaction of this obligation to pay the amount in which it was drawn.

4.15                 No release

Subject to clause 4.4 and this clause, nothing in the Scheme shall be construed as resulting in any release, extinguishment, modification, compromise or waiver of any Liability owed by the Scheme Company, but the amount of a Scheme Creditor's entitlement to payment under the Scheme in respect of Final Determined Claims shall constitute the Scheme Company's entire Liability to the Scheme Creditor concerned in respect of its Claim, and payment in full of a Scheme Creditor's Final Determined Claim in accordance with clause 4.14 shall be in full and final settlement of all and any Claim(s) of that Scheme Creditor against the Scheme Company.

4.16                 Corporations Act appeal rights

Despite any other provision of this Scheme, nothing in this Scheme shall derogate from a person's right to appeal to the Court in respect of any act, omission or decision of a person administering this Scheme under section 1321(a) of the Act to the extent such rights may be applicable.

5.1                     The Scheme Actuary

(a)                        There shall be a Scheme Actuary having the duties and functions and the rights conferred upon him by the Scheme.

(b)                        The Scheme Actuary shall provide such advice and assistance to the Scheme Company and the Scheme Adjudicator in respect of the valuation of Claims and the application of the Estimation Methodology, as he may be requested in the discharge of his functions under the Scheme.

(c)                        The Scheme Actuary shall be a Fellow of the Institute of Actuaries of Australia and meet all the requirements to be an approved actuary under General Insurance Prudential Standard GPS220 or GPS520 (from 1 October 2006).

(d)                        The Scheme Actuary shall be Scott Collings of Finity Consulting Pty Limited.

(e)                        The office of Scheme Actuary shall be vacated, if the appointee to that office:

(i)                          dies or becomes bankrupt;

(ii)                        is admitted to hospital because of mental disorder or becomes the subject of an order in matters concerning his mental disorder made by a court having jurisdiction in such matters in Australia or elsewhere;

(iii)                       is convicted of an indictable offence;

(iv)                      resigns his office in accordance with any terms agreed with the Scheme Company;

(v)                        is removed for good cause by the Scheme Company; or

(vi)                      ceases to be a Fellow of the Institute of Actuaries of Australia.

(f)                         In the event of a vacancy in the office of the Scheme Actuary, the Scheme Company shall be entitled to appoint as a replacement Scheme Actuary, a person who is qualified so to act pursuant to clause 5.1(c), and who is not disqualified from acting in accordance with clause 5.1(e). The Scheme Company will notify the Australian Prudential Regulation Authority, following the appointment of a replacement Scheme Actuary.

(g)                        The Scheme Actuary shall be paid such remuneration for (as well as costs, charges and expenses incurred in), the exercise and performance of his powers, rights, duties and functions under the Scheme as may be agreed between the Scheme Actuary and the Scheme Company, such remuneration, costs, charges and expenses are to be paid as a Scheme Cost.

5.2                     Responsibility and indemnity

(a)                        No Scheme Creditor shall be entitled to challenge the validity of any act done or omitted to be done by the Scheme Actuary or his Employees or Delegates pursuant to the provisions of the Scheme or in the exercise or performance of any power, right, duty or function conferred upon him under the Scheme and the Scheme Actuary, his Delegates and/or Employees shall not be liable for any loss, unless such loss is attributable to their own (or in the case of the Scheme Actuary, his Employee's or Delegates') fraud or dishonesty.

(b)                        Subject to the Act, the Scheme Actuary (in his capacity as such) and each of his Employees and Delegates shall, in relation to the Scheme Company, be entitled to an indemnity out of the Property of the Scheme Company against:

(i)                          all expenses and liabilities properly incurred by such Scheme Actuary, his Employees and/or Delegates in performing or exercising any power, right, duty or function conferred upon him under the Scheme in respect of the Scheme Company; and

(ii)                        any liability incurred by such Scheme Actuary, his Employees and/or Delegates in defending any Proceedings, whether civil or criminal, in respect of any alleged negligence, wilful default, wilful breach of duty or trust, fraud or dishonesty on their part, in relation to the operation of the Scheme, in which judgment is given in their favour or in which they are acquitted or which are discontinued before judgment is given; or in connection with any application in any such Proceedings in which relief is granted to them by a court from liability for negligence, wilful default, wilful breach of duty or trust, fraud or dishonesty on his part in relation to the operation of the Scheme.

(c)                        The Scheme Company may pay costs incurred by any Scheme Actuary in defending Proceedings of the nature described in clause 5.2(b)(ii) which relate to the operation of the Scheme, provided that the Scheme Actuary undertakes to reimburse the Scheme Company (with interest) for any amount which would not, in the event, have been payable by the Scheme Company under clause 5.2(b)(ii).

6.1                     Qualification, resignation and removal

(a)                        Subject to the appointment of an alternate Scheme Adjudicator in accordance with clause 6.1(b), there shall be one Scheme Adjudicator who shall be an individual who is duly qualified in the reasonable opinion of the Scheme Company, in consultation with the Scheme Actuary, to discharge the function of the Scheme Adjudicator under the Scheme. The first Scheme Adjudicator shall be Mark Moyes of 3 red Pty Ltd.

(b)                        In the event that:

(i)                          the Scheme Adjudicator becomes aware that he has a conflict of interest in relation to any matter referred to him (in which case the Scheme Adjudicator shall, as soon as reasonably practicable thereafter, inform the Scheme Company of such conflict); and/or

(ii)                        the Scheme Company becomes aware that the Scheme Adjudicator has a conflict of interest in relation to any matter referred to the Scheme Adjudicator (in which case the Scheme Company will notify the Scheme Adjudicator of such conflict),

the Scheme Company shall, in either event, nominate an alternate Scheme Adjudicator qualified to act in accordance with clause 6.1(a), for the sole purpose of adjudicating on the relevant matter and shall, as soon as reasonably practicable, give notice of such nomination to the Scheme Creditor in relation to which the conflict arises. If the relevant Scheme Creditor fails to object to the Scheme Company's nomination within 7 days of deemed receipt by it of the notice of the nomination, or agreement is otherwise reached between the Scheme Company and the Scheme Creditor within that period, the Scheme Company shall have the power to appoint the nominated or agreed alternate Scheme Adjudicator. If the Scheme Creditor objects to the nomination and the Scheme Company and the Scheme Creditor cannot agree on the identity of an alternate Scheme Adjudicator within 7 days, the Scheme Company shall request the appointment of a suitably qualified Scheme Adjudicator to be made by the President of the Institute of Actuariesof Australia for the time being, whose decision shall be final. The Scheme Adjudicator's appointment shall continue during the appointment of any alternate Scheme Adjudicator and he shall continue to adjudicate on other matters referred to him unless a conflict shall arise in respect of those matters in which case the terms of this clause 6.1(b) shall apply.

(c)                        For the avoidance of doubt, the provisions of clauses 6.1(d), 6.1(e), 6.2, and 6.3 shall apply with the necessary changes made to any alternate Scheme Adjudicator appointed pursuant to clause 6.1(b).

(d)                        The Scheme Adjudicator may continue to act in spite of a conflict of interest, if the Scheme Creditor in relation to whom the conflict arises, and the Scheme Company, agree in writing to permit the Scheme Adjudicator to act and, if the Scheme Adjudicator himself is willing to act, notwithstanding such conflict. Any such waiver of a conflict will only be made after the Scheme Adjudicator, relevant Scheme Creditor and the Scheme Company have been provided with (and have provided), sufficiently detailed disclosure of the circumstances and nature of the conflict to enable each of them to take an informed decision on whether the conflict may be waived without prejudicing or embarrassing any of them.

(e)                        The office of Scheme Adjudicator shall be vacated if the appointee to that office shall:

(i)                          die or become bankrupt;

(ii)                        be admitted to hospital because of mental disorder or be the subject of an order in matters concerning his mental disorder made by a court having jurisdiction in such matters in Australia or elsewhere;

(iii)                       be convicted of an indictable offence;

(iv)                      resign his office in accordance with any terms agreed with the Scheme Company; or

(v)                        be removed for good cause by the Scheme Company,

and the Scheme Company shall forthwith appoint a person who is qualified to act as Scheme Adjudicator pursuant to clause 6.1(a), and not ineligible by reason of any of the matters referred to in this clause 6.1(e).

(f)                         Any alternate or replacement Scheme Adjudicator must enter into a deed poll agreeing to be bound by the terms of this Scheme in a similar form to that entered into by the original Scheme Adjudicator (with the necessary changes being made).

6.2                     Powers, rights, duties and functions

(a)                        The Scheme Adjudicator shall be responsible for the adjudication of Disputed Claims and the determination of Agreed Claims (Pre Set-Off) (in the case of a referral under clauses 4.5(e), 4.5(f) or 4.5(h)) or Final Determined Claims (in the case of a referral under clause 4.7(d), in respect of such Disputed Claims and shall have the powers, rights, duties and functions conferred upon him by the Scheme for such purposes.

(b)                        The Scheme Adjudicator shall be paid such remuneration for the exercise and performance of his powers, rights, duties and functions under the Scheme as may be agreed between the Scheme Adjudicator and the Scheme Company. Subject to clauses 4.6(j) and 4.6(l), such remuneration shall be paid out of the Property of the Scheme Company as Scheme Costs.

6.3                     Responsibility and indemnity

(a)                        In exercising his powers and rights and in carrying out his duties and functions under the Scheme, the Scheme Adjudicator shall act in good faith and with due care and diligence and shall exercise his powers and rights under the Scheme to ensure that the Scheme is operated in accordance with its terms.

(b)                        No Scheme Creditor shall be entitled to challenge the validity of any act done or permitted to be done within his powers and in good faith and with due care and diligence by the Scheme Adjudicator, pursuant to the provisions of the Scheme or in the exercise or performance of any power, right, discretion, duty or function conferred upon him under the Scheme, and the Scheme Adjudicator shall not be liable for any loss unless any such loss is attributable to his own negligence, wilful default, wilful breach of duty or trust, fraud or dishonesty.

(c)                        Subject to the Act, the Scheme Adjudicator shall be entitled to an indemnity out of the Property of the Scheme Company against:

(i)                          all costs, charges, expenses and liabilities properly incurred by him in the course of exercising or performing his powers, rights, duties or functions under the Scheme in relation to the Scheme Company; and

(ii)                        any liability incurred by him in defending any Proceedings, whether civil or criminal, in respect of any negligence, wilful default, wilful breach of duty or trust, fraud or dishonesty on his part in relation to the operation of the Scheme in which judgment is given in his favour or in which he is acquitted; or in connection with any application in any such Proceedings in which relief is granted to him by a court from liability for negligence, wilful default, wilful breach of duty or trust, fraud or dishonesty on his part in relation to the operation of the Scheme.

(d)                        The Scheme Company may pay costs incurred by the Scheme Adjudicator in defending Proceedings of the nature described in clause 6.3(c)(ii), provided that the Scheme Adjudicator undertakes to reimburse the Scheme Company (with interest) for any amount which would not, in the event, have been payable by the Scheme Company under clause 6.3(c)(ii).

The powers of the Board shall remain as immediately before the Effective Date.

8.1                     Final implementation of the Scheme

Without prejudice to the continuing effect of those provisions of the Scheme set out in clause 8.3, the Scheme shall be fully implemented upon written confirmation by the Scheme Company to the Scheme Adjudicator that all Claims have been adjudicated or otherwise determined and all Final Determined Claims have been paid in full (or deemed to have been satisfied in full) in accordance with the terms of the Scheme. The date of such confirmation shall be the Termination Date. This confirmation shall be given as soon as is reasonably practicable after all Final Determined Claims have been paid in full (or deemed to have been satisfied in full). The Scheme Adjudicator and the Scheme Actuary shall be released from their obligations under the Scheme on the Termination Date.

8.2                     Reversion to run-off

(a)                        If at any time on or before 90 days after the Final Claims Submission Date, the Scheme Company determines that the total value of Claims Submitted (or treated as so submitted) by Scheme Creditors on or prior to the Final Claims Submission Date is materially in excess of the Accounting Claims Provision (in the judgment of the directors of the Scheme Company, acting reasonably and taking into account the level at which they reasonably consider Claims may ultimately be determined in accordance with the Scheme) then the Scheme Company may send notice to all its Scheme Creditors in accordance with clause 9.4, and place a notice in those newspapers and publications in which the Creditors' Meetings were advertised (or should this not prove reasonably possible, in such other publications as it shall deem appropriate), that the Scheme shall terminate (the first date on which any such advertisement appears being the Reversion to Run-Off Date).

(b)                        If the business of the Scheme Company reverts to run-off as contemplated by this clause 8.2:

(i)                          Agreed Claims (Pre Set-Off) determined hereunder, but which have not become Final Determined Claims pursuant to clause 4.7, shall cease to be binding on the Scheme Company and Scheme Creditor;

(ii)                        Final Determined Claims (which have not yet been paid), shall continue to be binding upon the Scheme Company and the Scheme Creditor (and therefore shall remain payable hereunder, if not yet paid), except where the Scheme Creditor elects otherwise, by written notice sent to the Scheme Company in accordance with clause 9.4, no later than 30 days after the Reversion to Run-off Date, in which case, such determination shall likewise cease to be binding upon the Scheme Company and that Scheme Creditor;

(iii)                       Final Determined Claims which have been paid by the Scheme Company will continue to be binding upon the Scheme Company and the Scheme Creditor. For this purpose a Final Determined Claim will be treated as being paid on the earlier of the Scheme Creditor receiving cleared funds for the Final Determined Claim, and 7 days after the Scheme Company has posted a cheque to the Scheme Creditor for the Final Determined Claim.

8.3                     Provisions surviving termination

Clauses 2, 3.1, 3.2, 4.3(e), 4.3(f), 4.4(a), 4.4(c), 4.5(g), 4.6(i), 4.7(g), 4.10(c), 4.14(d), 4.15, 5.2, 6.3, 8.2(b), 9.2, 9.4, 9.5 and 9.6 shall survive termination of the Scheme.

9.1                     Effective Date

The Scheme shall become effective on the Effective Date.

9.2                     Pre-Scheme Expenses and Scheme Costs

(a)                        As soon as practicable after the Effective Date, there shall be paid in full out of the Scheme Company's Property, all Pre-Scheme Expenses.

(b)                        There shall be paid in full, out of the Scheme Company's Property, as incurred, all Scheme Costs.

9.3                     Modification of the Scheme

The Scheme Company, by its solicitors or counsel, may at any hearing by the Court to sanction the Scheme, consent on behalf of its Scheme Creditors, to any modification of, or addition to, the Scheme or any terms or conditions which the Court may think fit to approve or impose.

9.4                     Notices

(a)                        Without prejudice to clause 4, any notice or other written communication to be given under, or in relation to, the Scheme shall be given in writing and shall be deemed to have been duly given if:

(i)                          in the case of the Scheme Company, it is sent by email to schemes@recentre.com.au (email address), or it is sent Electronically to +(61) (02) 9274 3033 (fax number) or it is sent by Post c/o Littlewoods Services Pty Limited, Level 21, Tower Building, Australia Square, 264 George Street, Sydney, New South Wales, Australia, , marked for the attention of Ross Littlewood, or such other email address, fax number or postal address as the Scheme Company may notify to the relevant Scheme Creditor by Post;

(ii)                        in the case of the Scheme Adjudicator, it is sent by Post, to Mark Moyes, c/- 3 red Pty Ltd, PO Box 761, Woollahra, New South Wales, 1350, Australia, or sent Electronically to +(61) (02) 9327 3601 (fax number) or mmoyes@3red.com.au (email address) marked for the attention of Mark Moyes, or such other address, fax number or email address as the Scheme Company may notify to the relevant Scheme Creditor by Post;

(iii)                       in the case of a Scheme Creditor, it is sent by Post, to its last known address or it is sent Electronically to the last known fax number or email address for the Scheme Creditor in each case according to the Scheme Company's records; and

(iv)                      in the case of a Known Broker, it is sent by Post, to his last known address or, it is sent Electronically to the last known fax number or email address for that Broker in each case according to the Scheme Company's records.

(b)                        Except as otherwise provided herein, any notice or other written communication to be given under the Scheme shall be deemed to have been received:

(i)                          if delivered by hand, on the first Business Day following delivery;

(ii)                        if sent by post, on the second Business Day after posting, if the recipient is in the country of despatch and otherwise on the seventh Business Day after posting;

(iii)                       if sent by fax between 9:00 am and 5:00 pm (local time of the recipient) on a Business Day, upon receipt of a clear fax transmission report (and if not sent during this time, the fax shall be deemed received at 9:00 am, (local time), on the next following Business Day); and

(iv)                      if sent by email between 9:00 am and 5:00 pm (local time of the recipient), on a Business Day, at the time of sending recorded by the sender's computer (and if not sent during this time, the email shall be deemed received at 9:00 am, (local time), on the next following Business Day).

(c)                        In proving service, it shall be sufficient proof in the case of a notice sent by Post, that the envelope was properly stamped, addressed and placed in the Post.

(d)                        For the purposes of clause 4, the accidental omission to send any notice, written communication or other document in accordance with this clause or the non-receipt of any such notice by any Scheme Creditor, shall not affect the provisions of clause 4.

9.5                     Calculation of time periods

Unless otherwise specified, time periods laid down by the Scheme shall be calculated by reference to elapsed days and not Business Days. In the event that a time period expires on a day which is not a Business Day, such period shall be deemed not to expire until close of business on the Business Day next following.

9.6                     Governing law and jurisdiction

(a)                        The Scheme shall be governed by, and construed in accordance with, the laws of New South Wales, Australia.

(b)                        The Scheme Creditors hereby agree that the Court shall have non-exclusive jurisdiction to hear and determine any Proceedings and to settle any dispute which may arise out of the Scheme Booklet or any provision of the Scheme, including this clause 9.6, or out of any action taken or omitted to be taken under the Scheme or in connection with the administration of the Scheme.

(c)                        The Scheme Creditors irrevocably submit to the non-exclusive jurisdiction of the Court.

(d)                        Nothing in this clause 9.6, shall affect the validity of any other provisions determining governing law and jurisdiction as between the Scheme Company and any of its Scheme Creditors, whether contained in any Reinsurance Contract or otherwise.

(e)                        Notwithstanding the provisions of clause 9.6(a), the Scheme Company retains the right to bring Proceedings in the courts of any other country having jurisdiction under its own laws to hear such Proceedings.

ANNEXURE B

6.2 NRG Victory Scheme

Scheme of Arrangement made in Sydney on the Effective Date pursuant to section 411 of the Corporations Act

Parties NRG Victory Australia Limited (ABN 47 002 971 477)
("Scheme Company")

The Scheme Creditors ("Scheme Creditors")

Operative provisions

(a)                        The Scheme Company was incorporated in Victoria under the precursor to the Corporations Act on 26 November 1956 and its registration was transferred to New South Wales effective 2 August 1975. It was initially called The Victory Reinsurance Company of Australia Ltd but changed its name to NRG Victory Australia Limited on 11 December 1991.

(b)                        The Scheme Company is only authorised by APRA under the Insurance Act 1973 to conduct insurance business in Australia for the sole purpose of discharging liabilities under policies entered into prior to October 1993.

The terms of the Scheme are set out in the Attachment to this document.

For the purposes of the Scheme and the Attachment:

"Accounting Claims Provision" means $11,788,000.

"Excluded Liabilities" means Liabilities written under Reinsurance Contracts which were transferred to Life Reinsurance of Australasia in 1993, (now Hannover Life Re of Australasia Ltd ), under the Life Insurance Act 1945.

6.3 Attachment to Scheme

1.1                     Definitions

In the Scheme, unless the context otherwise requires or otherwise expressly provides, the following expressions shall have the following meanings:

"Act" means the Corporations Act 2001 (Cth) of Australia.

"Adjudication Costs" has the meaning given to that term in clause 4.6(j)(i).

"Admissible Interest" means any interest provided for in a relevant Reinsurance Contract or any relevant statute.

"Advance Payment" has the meaning given to that term in clause 3.2(b).

"Agreed Claim (Pre Set-Off)" means the amount determined as being due in respect of a Scheme Creditor's Claim pursuant to clauses 4.5(b), 4.5(d), 4.5(e), 4.6(f) or 4.6(h) prior to set-off and relevant deductions in accordance with the relevant Scheme.

"Agreed Paid Losses" means Paid Losses which the Scheme Company determines (in its sole discretion, by reference to its computer records) were due and payable but unpaid by it on the Effective Date.

"ASIC" means Australian Securities and Investments Commission.

"Authorised Insurer" means a general insurer authorised to conduct business in Australia under the Insurance Act 1973.

"Bill Rate" for a period means the following rate (expressed as percentage per annum):

(a)                        the average of the bid rates shown at or about 10:30 am (Sydney time), on page "BBSY" on the Reuters Monitor System, on the first day of that period, for a term of 360 days; or

(b)                        if:

(i)                          for any reason, the rate referred to at paragraph (a) of this definition is not displayed for a term equivalent to the relevant period, or such rate is no longer available; or

(ii)                        in the opinion of the Scheme Company, the basis on which that rate is displayed is changed, and ceases to reflect the Scheme Company's cost of funding to the same extent as at the date of this document,

then the rate determined by the Scheme Company to be the average of the buying rates quoted to the Scheme Company by three banks in the Australian market, as determined by the Scheme Company, at or about 10:30 am (Sydney time), on the first day of the relevant period for bills accepted by a leading Australian bank, and which have a term equivalent to the period. If the Scheme Company is unable to obtain three quotes, the Bill Rate will be the rate reasonably determined by the Scheme Company to be the appropriate equivalent rate, having regard to prevailing market conditions.

"Board" means the board of directors of the Scheme Company from time to time.

"Broker" means any broker who placed business with, or on behalf of, the Scheme Company or, if applicable, any successor to such a broker.

“Business Day” means any day other than a Saturday, Sunday or public holiday on which banks are not generally open for business in Sydney.

"Claim" means any claim against the Scheme Company (not being a claim in respect of Pre-Scheme Expenses or Scheme Costs) in respect of a Liability (other than an Excluded Liability), under, or in relation to, Scheme Business and to which the Scheme Company was subject at the Valuation Date, or to which the Scheme Company may become subject after the Valuation Date, by reason of an obligation incurred on, or before that date, including a claim for Admissible Interest.

"Claim Form" means the document entitled "Claim Form" made available to Scheme Creditors and Known Brokers in accordance with the notices issued pursuant to clause 4.2(a), which Scheme Creditors are required to Submit prior to the Final Claims Submission Date, in order to have their Claims agreed or determined.

"Court" means the Federal Court of Australia.

"Creditors' Meeting" means the meeting of the Scheme Creditors of the Scheme Company convened for the purpose of considering and, if thought fit, approving the Scheme.

"Default Interest" means interest payable pursuant to clause 4.14(b) in circumstances where the Scheme Company fails to make payment in full of a Scheme Creditor's Final Determined Claim within 90 days from (but not including) the date of such Final Determined Claim having been determined.

"Delegate" means any person to whom the Scheme Actuary delegates any of his powers, rights, duties or functions under the Scheme.

"Disputed Final Determined Claim Notice" shall have the meaning given to that term in clause 4.7(b)(ii).

"Disputed Claim" means a Claim referred to the Scheme Adjudicator in accordance with clause 4.5(e), 4.5(f), 4.5(h) or 4.7(d).

"Dispute Resolution Procedure" means the procedure for the adjudication of disputes by the Scheme Adjudicator set out in clauses 4.6, 4.7(d), 4.7(e) and 4.7(f).

"Disputed Set-Off or Deduction" has the meaning given to that term in clause 4.7(b)(i).

"Effective" where used in relation to the Scheme, means the coming into effect, pursuant to section 411(10) of the Act, of the order of the Court made under section 411(4)(b) of the Act.

"Effective Date" means the date on which the Scheme becomes effective.

"Electronically" means any communication sent or received by facsimile or by email in accordance with clause 9.4.

"Employee" means, as the context shall admit, any partner in the same firm as the Scheme Actuary or any individual or corporate entity employed, whether under a contract of service or a contract for services, by that firm, by any company owned by that firm or the Scheme Actuary in connection with the performance or exercise of his powers, rights, duties or functions under the Scheme.

"Estimation Methodology" means the method of estimation described at Section 5 to the Scheme Booklet.

"Final Claims Submission Date" means 11:59 pm (Sydney time) on the 120th day after, but not including, the Effective Date (or, if such day is not a Business Day, the first Business Day thereafter).

"Final Determined Claim" means the balance, if any, remaining due from the Scheme Company to a Scheme Creditor, following the deduction of those amounts referred to in clause 4.7(a).

"Final Determined Claim Notice" shall have the meaning given to that term in clause 4.7(b).

"Final Determined Claim Notification Date" shall have the meaning given to that term in clause 4.7(b).

"Guidance Notes" means the guidance notes in respect of the Claim Form explaining how to access, obtain, complete, amend and submit a Claim Form, and the manner in which a Scheme Creditor may provide any supporting documentation to the Scheme Company.

"IBNR Claims" means a Claim under a Reinsurance Contract based on Liabilities of the Scheme Company, in respect of losses which have been incurred but have not been reported to the Scheme Company, and which are subject to potential recoveries under a Reinsurance Contract with the Scheme Company.

"Known Broker" means a Broker of whose involvement in placing and/or administering a Reinsurance Contract, the Scheme Company is aware.

"Liability" means any debt or liability (being a liability to pay money or money's worth) of a person, whether it is present or future, certain or contingent, whether its amount is fixed or liquidated, or is capable of being ascertained by fixed rules or as a matter of opinion, including any liability under any enactment (in Australia or in any other jurisdiction), and any liability in contract, tort or bailment, or arising out of an obligation to make restitution or in any other manner whatsoever, provided that such expression does not include any debt or liability which is barred by statute under Australian law, or the law of any other jurisdiction, which applies to that liability or is otherwise unenforceable. For the avoidance of doubt, where any obligation or liability under a contract or policy is void or, being voidable, has been duly avoided, no obligation or liability shall arise in respect of such obligation or liability.

"Long Stop Date" has the meaning given to that term in clause 4.5(h).

"Notified Outstanding Claims" means a Claim under a Reinsurance Contract, based on Liabilities of the Scheme Company in respect of losses which have been notified to the Scheme Company, but have not become Paid Losses, and which are subject to potential recoveries under a Reinsurance Contract.

"Paid Losses" means Liabilities of the Scheme Company, in respect of losses of a Scheme Creditor arising pursuant to Scheme Business, which have been notified to the Scheme Company and which are certain in amount.

"Post" means delivered by hand (including by a generally recognised commercial courier service), pre-paid first class post, or air mail.

"Pre-Scheme Expenses" means all costs, charges, expenses and disbursements reasonably incurred by the Scheme Company in connection with the promotion and preparation of the Scheme, including the costs of holding the Creditors' Meeting, and the costs of obtaining the sanction of the Court of the Scheme.

"Proceedings" means any form of proceedings in any jurisdiction or forum including, without limitation, any legal proceedings, demand, arbitration, alternative dispute resolution procedure, judicial review, adjudication, mediation, execution, seizure, distraint, forfeiture, re-entry, enforcement of judgment or enforcement of any security or any step taken for the purpose of creating or enforcing a lien.

"Property" means all forms of property (including money, goods, things in action, land and every description of property wherever situated), and every description of interest, whether present, future, vested or contingent, arising out of, or incidental to, property and including, for the avoidance of doubt, all contributions to the assets of the Scheme Company.

"Reinsurance Contract" means any inwards contract, or a policy of insurance, reinsurance or retrocession of any kind whatsoever:

(a)                        which has been entered into by, or on behalf of, the Scheme Company; or

(b)                        in respect of which Liabilities arising thereunder have been assigned or otherwise novated to the Scheme Company (whether pursuant to statute or otherwise); or

(c)                        under which the Scheme Company has any Liabilities for any other reason whatsoever.

"Relevant Rate of Exchange" means the closing mid-market rate of exchange applying to a particular currency in respect of the currency into which it is to be converted, as quoted by the Reserve Bank of Australia on its website on the close of business on the last Monday of the calendar month prior to the month in which the conversion takes place, in accordance with clause 4.13(c).

"Resolution Period" has the meaning given to that term in clause 4.7(d).

"Reversion to Run-Off Date" has the meaning given to that term in clause 8.2(a).

"Scheme" means, in respect of the Scheme Company, the scheme of arrangement pursuant to section 411 of the Act, in the form set out in this document with or subject to any modification, addition or condition approved or imposed by the Court.

"Scheme Actuary" means Scott Collings of Finity Consulting Pty Limited, or such other person for the time being appointed as Scheme Actuary in accordance with clause 5.1(f).

"Scheme Adjudicator" means Mark Moyes of 3 red Pty Ltd, or such other person for the time being appointed as Scheme Adjudicator in accordance with clause 6.1 or, where the context may admit, an alternate Scheme Adjudicator in accordance with clause 6.1(b).

"Scheme Booklet" means the document bearing that title and dated the date hereof, explaining the effect of the Scheme to Scheme Creditors in compliance with section 412(1) of the Act and sent to Scheme Creditors in advance of the Creditors' Meeting.

"Scheme Business" means all the Scheme Company's Reinsurance Contracts, excluding the Excluded Liabilities.

"Scheme Costs" means:

(a)                        all costs, charges, expenses, disbursements and other debts incurred by the Scheme Company in the course of implementing and carrying out the Scheme, and of complying with the provisions of the Act; and

(b)                        insofar as they do not fall within (a), all costs, charges, expenses and disbursements incurred by the Scheme Company, and the remuneration of the Scheme Actuary and the Scheme Adjudicator, to the extent that such costs, charges, expenses, disbursements and remuneration are referable to the implementation of the Scheme.

"Scheme Creditor" means a creditor of the Scheme Company in respect of a Claim.

"Scheme Period" means the period beginning on the Effective Date and ending on the Termination Date.

"Submit" means duty to complete and submit a Claim Form to the Scheme Company (in accordance with the instructions thereon) whether Electronically or by Post, and "Submitted" and "Submitting" shall be construed accordingly.

"Tax" means any form of taxation, levy, deduction, duty, charge, contribution, withholding, or impost of whatever nature (including any related fine, penalty, surcharge or interest) imposed, collected, assessed or withheld by, or payable to, a Tax Authority.

"Tax Authority" means any government, state, municipality, or any local, state, federal or other fiscal, revenue, customs or excise authority, body or official, anywhere in the world in relation to Tax (including, in Australia, without limitation, the Australian Taxation Office or any successor thereto).

"Termination Date" has the meaning given to that term in clause 8.1.

"Valuation Date" means 30 June 2006.

1.2                     Interpretation

In the Scheme, unless the context otherwise requires, or the Scheme expressly provides otherwise:

(a)                        references to the Scheme include this Attachment;

(b)                        references to "clauses" and "sub-clauses" are references to the clauses and sub-clauses, respectively, of the Scheme;

(c)                        references to a "person" include an individual, firm, partnership, company, corporation, unincorporated body of persons or any state or state agency;

(d)                        references to a statute or a statutory provision or to a statutory instrument or provision of a statutory instrument, include the same as subsequently modified, amended or re-enacted from time to time;

(e)                        the singular includes the plural and vice versa and words importing one gender shall include both genders;

(f)                         headings and subheadings of this Scheme are for ease of reference only, and shall not affect the interpretation of the Scheme; and

(g)                        references to currency are to Australian currency.

1.3                     Participation in the Scheme

The Scheme Actuary and the Scheme Adjudicator have each consented to act in relation to the Scheme.

(a)                        The purpose of the Scheme is to provide a procedure for the agreement, determination or adjudication, and satisfaction of Claims as early as practicable.

(b)                        The Scheme shall apply to all Claims. The Scheme will not apply to any Excluded Liabilities.

3.1                     Restraint on proceedings by Scheme Creditors

(a)                        Without prejudice to clause 3.1(c), except with the prior express written consent of the Scheme Company, no Scheme Creditor shall be permitted to institute or continue, any Proceedings whatsoever against the Scheme Company or its Property, to establish the existence, or amount, of a Claim.

(b)                        Except to the extent that the Scheme Company has failed to perform any obligation to make a payment to a Scheme Creditor under the provisions of the Scheme, no Scheme Creditor shall be entitled to institute or continue any Proceedings whatsoever against the Scheme Company, or its Property, to enforce payment in whole, or in part, of any Claim.

(c)                        Nothing in the Scheme shall preclude the Scheme Company from commencing or continuing any Proceedings against a Scheme Creditor. For the avoidance of doubt, the relevant Scheme Creditor shall be entitled to assert and prosecute a Claim against the Scheme Company in such Proceedings provided that:

(i)                          the relevant Claim arises out of a Reinsurance Contract that is the subject matter of the Scheme Company's Claim in the relevant Proceedings; and

(ii)                        the relevant Claim does not require the presence of third parties over whom the court or tribunal in question cannot have jurisdiction for its adjudication.

3.2                     Effect of breach of clause 3.1(a) restraint

(a)                        If, and to the extent that, a Scheme Creditor obtains an order, judgment, decision or award of a court or tribunal against the Scheme Company in relation to a Claim in contravention of clause 3.1(a), such order, judgment, decision or award shall not give rise to an Agreed Claim (Pre Set-Off), and shall be disregarded when determining the Liability of the Scheme Company in respect of the relevant Claim.

(b)                        If any Scheme Creditor takes any action after the Effective Date, which is prohibited by clause 3.1(a) or 3.1(b), it shall, without prejudice to any other rights of the Scheme Company, be treated as having received an advance payment on account of its Claim, equal to the amount or gross value of any money, Property, benefit or advantage obtained by him at the expense of the Scheme Company as the result of such action (an Advance Payment) and the extent to which it is entitled to receive any payment under the Scheme in respect of its Final Determined Claim shall be determined accordingly.

(c)                        For the purpose of clause 3.2(b),  the gross value of any Advance Payment shall be conclusively determined by the Scheme Company and, without limitation, may include such amounts as the Scheme Company may consider to be appropriate by way of interest, costs, charges or expenses incurred by the Scheme Company as a consequence of the relevant Scheme Creditor acting in a manner prohibited by clause 3.1(a) or 3.1(b).

(d)                        If the amount of an Advance Payment which a Scheme Creditor is treated as having received pursuant to clause 3.2(b) (such Advance Payment, if necessary, being converted at the Relevant Rate of Exchange into one or more of the currencies in which the Scheme Creditor has an Final Determined Claim), exceeds the total amount the relevant Scheme Creditor would otherwise be entitled to receive pursuant to the Scheme, then, without prejudice to any other rights of the Scheme Company, the Scheme Creditor shall immediately pay the excess to the Scheme Company, failing which interest shall accrue on such excess for the period from the date upon which the Scheme Creditor's Final Determined Claim is determined under the Scheme, to the date of payment of such excess, at the annual rate which is the Bill Rate applicable at the date of determination. Interest shall accrue from day-to-day for the duration of such period (from and including the first day thereof), and shall be calculated on the basis of the actual number of days elapsed and a 360-day year and shall be payable on the last day of such period. Such excess and interest shall be held on trust for the Scheme Company by the relevant Scheme Creditor until paid.

3.3                     Interest

(a)                        For the purpose of making payments under the Scheme, where a Claim includes an element of Admissible Interest, such Admissible Interest shall be payable for the period from the date provided for in the relevant Reinsurance Contract or statute, to the day immediately preceding the date on which payment is made in respect of the relevant Final Determined Claim.

(b)                        No payment shall be made under the Scheme in respect of any part of a Claim which represents interest which is not Admissible Interest or Default Interest.

(c)                        Any payment made under the Scheme in respect of any part of a Claim which represents Admissible Interest or Default Interest shall be made net of any necessary deduction or withholding for, or on account of, Tax.

4.1                     Valuation Date

All Claims shall be valued as at the Valuation Date, provided that any amounts paid by the Scheme Company or by any other person to the relevant Scheme Creditor in full or partial satisfaction of a Claim against the Scheme Company from the Valuation Date up to and including the Effective Date, shall be taken into account in calculating that Scheme Creditor's aggregate Final Determined Claim against the Scheme Company.

4.2                     Notice of Effective Date and availability of Claim Forms

(a)                        The Scheme Company shall, as soon as reasonably practicable, and in any event within 15 Business Days of the Effective Date, send by Post to:

(i)                          each Scheme Creditor known to it as at the Effective Date and for whom it has a postal address;

(ii)                        Known Brokers; and

(iii)                       Authorised Insurers,

the following documents:

(iv)                      notice that the Scheme has become effective, confirming the Effective Date and the Final Claims Submission Date and calling for all Scheme Creditors to Submit their Claim Forms by the Final Claims Submission Date; and

(v)                        a Claim Form.

(b)                        In addition, the Scheme Company shall as soon as reasonably practicable, and in any event within 15 Business Days of the Effective Date, cause to be published in the same newspaper and publications in which the Creditors' Meeting was advertised or, if this should not prove possible, in such other publications as it shall deem appropriate, notice:

(i)                          that the Scheme has become effective, giving the Effective Date;

(ii)                        of the Final Claims Submission Date; and

(iii)                       calling for all Scheme Creditors to Submit their Claim Forms by the Final Claims Submission Date.

(c)                        Where the Scheme Company is notified of a Scheme Creditor or a Scheme Creditor's postal address after the Effective Date, but before the Final Claims Submission Date, the Scheme Company shall send, within 14 days of being so notified and, if practicable, prior to the Final Claims Submission Date, the relevant Scheme Creditor the information referred to in clause 4.2(a).

4.3                     Completing Claim Forms

(a)                        Each Scheme Creditor shall Submit with its Claim Form, information relating to its Claims as at the Valuation Date, by reference to each Reinsurance Contract in respect of Scheme Business pursuant to which the relevant Claims arise, together with such details as the Scheme Creditor may have of the Broker or Brokers who placed the relevant business.

(b)                        The information provided by the relevant Scheme Creditor shall be provided separately for Claims which relate to Paid Losses, Notified Outstanding Claims and IBNR. In respect of:

(i)                          (Paid Losses): Scheme Creditors shall provide with the Claim Form an analysis supporting each Claim in respect of Paid Losses, including (where relevant), but not limited to, loss bordereaux certified by the leading underwriter, and/or copies of loss reports from policyholders/cedants or their legal representatives to the Scheme Creditor;

(ii)                        (Notified Outstanding Claims): Scheme Creditors shall provide on or with the Claim in respect of a Notified Outstanding Claim, including (where relevant), but not limited to, loss bordereaux certified by the leading underwriter and/or copies of loss reports from policyholders/cedants or their legal representative to the Scheme Creditor and/or closing statements in respect of agreed Claims not yet settled by the Scheme Creditor, for each Claim; and

(iii)                       (IBNR): Scheme Creditors shall, insofar as is reasonably practicable, provide with the Claim Form, an amount for IBNR and details of the basis for the estimate for each Claim in respect of IBNR, and any relevant documentary evidence to show the reasonableness of such estimate, including (but not limited to):

A.                         cumulative data triangles of paid loss data; and/or

B.                         cumulative data triangles of incurred loss data; and/or

C.                         cumulative data triangles of incurred loss ratios; and/or

D.                         loss bordereaux certified by the leading underwriter; and/or

E.                          copies of loss reports from policyholders/cedants to the Scheme Creditor; and/or

F.                          any relevant actuarial reports; and/or

G.                         any other supporting information.

(c)                        Where it has sufficient information, the Scheme Company shall pre-complete each Claim Form sent to any Scheme Creditor known to it as at the Effective Date with its estimate of the Claims of the Scheme Creditor (other than in respect of IBNR). Scheme Creditors shall not be required to Submit a Claim Form, or provide any additional supporting information, in respect of such amounts. For the avoidance of doubt, only amounts which have been pre-completed by the Scheme Company on the relevant Scheme Creditor's Claim Form are "Agreed Paid Losses" for the purposes of clause 4.4(c). If a Scheme Creditor wishes to receive payment in respect of any other Claims, it must submit a Claim Form in respect of such Claims, prior to the Final Claims Submission Date.

(d)                        In respect of each Reinsurance Contract, the Scheme Creditor shall also provide details of:

(i)                          all Liabilities owed by it to the Scheme Company in relation to such Reinsurance Contract; and

(ii)                        all reinstatement premiums payable in relation to such Reinsurance Contract.

(e)                        Subject to clause 4.4(b), a Claim Form must be Submitted to the Scheme Company on, or before, the Final Claims Submission Date. Except as provided for in clause 4.3(f), the information contained in the Claim Form shall be binding on the Scheme Creditor as to the matters referred to therein.

(f)                         Each Scheme Creditor shall be entitled to Submit a new or revised Claim Form and to provide revised or further information in respect of its Claims, together with any relevant supporting documentation (as contemplated by clause 4.3(e)), to the Scheme Company in each case so as to reach the Scheme Company:

(i)                          any time on or before the Final Claims Submission Date; or

(ii)                        prior to the date on which it has been notified in accordance with clause 9.4 that the relevant Claim has become an Agreed Claim (Pre Set-Off),

whichever is the earlier.

(g)                        Where a Scheme Creditor Submits more than one Claim Form or Submits an amended Claim Form in accordance with this clause, the Scheme Company shall only consider the Claim Form or the version of the Claim Form last Submitted.

(h)                        A Scheme Creditor may, by placing a tick in the relevant box on the Claim Form and then Submitting that Claim Form, elect to incorporate into its Claim Form, the Claims information contained in its proxy and voting form which it submitted to the Scheme Company for the purpose of voting at the Creditors' Meeting. A Claim Form will only validly incorporate the Claims information contained in, or supplied with, the said proxy and voting form pursuant to this clause, if the Claims information sections of the Claim Form are left blank by the Scheme Creditor. The provisions of this clause are without prejudice to the Scheme Creditor's rights under clause 4.3(f).

(i)                          Determination of the amount of the Claim should take into account the normal negotiated process of discounting the value of future expenses to be incurred by the claimant (such as future care costs) in recognition of the fact that the underlying claim is to be settled by way of immediate lump sum as opposed to by way of an ongoing stream of expense reimbursement. The Scheme Company will pay the amount of the Claim so agreed at face value provided the Scheme Creditor expects to settle the underlying claim within five years of the Valuation Date. Where the settlement date of the underlying claim is expected to be beyond five years of the Valuation Date, the Claim will be reduced by 5.5% per annum for the period between five years of the Valuation Date and the expected settlement date.

4.4                     Failure to return Claim Forms

(a)                        Subject to clauses 4.3(c), 4.4(b) and 4.4(c), no Scheme Creditor shall be entitled to claim under, or receive any payment under, the Scheme in respect of a Claim, unless that Claim has been notified to the Scheme Company by the Scheme Creditor by means of a Claim Form Submitted to the Scheme Company no later than the Final Claims Submission Date.

(b)                        The Scheme Company may, in its absolute and sole discretion, allow a Claim Form that was not Submitted on or before the Final Claims Submission Date, to be determined in accordance with the provisions of the Scheme as if that Claim Form had been Submitted on or before the Final Claims Submission Date.

(c)                        If a Scheme Creditor has not Submitted a Claim Form on or before the Final Claims Submission Date, that Scheme Creditor's Claim will be valued at the Agreed Paid Losses, if any. To the extent that there are no Agreed Paid Losses, the Scheme Creditor's Claim shall be valued at zero, and such Claim shall be deemed satisfied in full. For the avoidance of doubt, for the purpose of this clause, the Scheme Company's determination of the amount of Agreed Paid Losses shall be final and binding on the Scheme Company and the relevant Scheme Creditor, and there shall be no right of appeal in respect thereof, whether pursuant to the Scheme or otherwise.

4.5                     Review of Claim Forms and determination of Agreed Claims (Pre Set-Off)

(a)                        The Scheme Company will consider the information concerning a Scheme Creditor's Claims on its Claim Form including, but not limited to, consideration of whether any submissions are accurate and/or adequately supported with relevant documentation, whether any estimates in relation to future or contingent Claims are reasonable and have been calculated in accordance with the Estimation Methodology, and whether there is any applicable reinstatement premiumor set-off.

(b)                        If the Scheme Company agrees with a Scheme Creditor's estimate of the value of any of its Claims as set out in its Claim Form, it shall, as soon as reasonably practicable, notify the relevant Scheme Creditor of such agreement in writing in accordance with clause 9.4. Such estimated value, together with any unpaid Agreed Paid Losses, shall be the Scheme Creditor's Agreed Claim (Pre Set-Off) in respect of each such Claim.

(c)                        If the Scheme Company does not agree with the information provided on a Claim Form in respect of a Claim, it shall, as soon as reasonably practicable, notify the relevant Scheme Creditor in writing, in accordance with clause 9.4, that the Claim Form has not been agreed, and advise the Scheme Creditor in writing of those matters which are not agreed, the reasons for failing to agree to such matters, and any additional information that the Scheme Company may require to further consider the Claim. The Scheme Creditor shall provide such additional information no later than 30 days after deemed receipt (in accordance with clause 9.4(b)) of such a request.

(d)                        If the relevant Scheme Creditor provides any additional information required pursuant to clause 4.5(c), within the time period set out therein, the Scheme Company will then endeavour to agree the disputed matters and the relevant Claim, as soon as reasonably practicable. In the event that the Claim is so agreed, the Scheme Company shall, as soon as reasonably practicable, notify the Scheme Creditor in writing of its agreement and of the amount of the Agreed Claim (Pre Set-Off).

(e)                        If the relevant Scheme Creditor:

(i)                          fails to provide any additional information required pursuant to clause 4.5(c) within the time period by that clause;

(ii)                        provides inadequate or insufficient additional information (in the opinion of the Scheme Company); or

(iii)                       does provide such additional information, but the Scheme Company is still unable to agree with the information on the Scheme Creditor's Claim Form,

the Scheme Company may send the Scheme Creditor a copy of a Claim Form in relation to the relevant Claim, completed in such manner as it is prepared to accept, and inform the Scheme Creditor that, if it is rejected by the Scheme Creditor, it will refer the Claim to the Scheme Adjudicator as a Disputed Claim. If the Scheme Creditor wishes its Claim to be referred to the Scheme Adjudicator, it must give notice thereof to the Scheme Company, in accordance with clause 9.4, within 30 days of deemed receipt of the Scheme Company's communication. If such notice is received from the Scheme Creditor, the Scheme Company shall refer the relevant Claim to the Scheme Adjudicator as a Disputed Claim. If the Scheme Creditor does not respond to the communication from the Scheme Company within 30 days of deemed receipt of such communication, the Claim Form so completed by the Scheme Company, will be deemed to be determinative of the disputed matters and will form the basis of the Scheme Creditor's Agreed Claim (Pre Set-Off).

(f)                         For the avoidance of doubt, notwithstanding any other provision of this clause, the Scheme Company shall, at any time, by notice to the Scheme Creditor concerned given in accordance with clause 9.4, be entitled to:

(i)                          require the production by such Scheme Creditor of such further information, or such documentary or other evidence as it may reasonably require to assist it in agreeing the relevant Claim (in which case, the Scheme Creditor must produce such information within 30 days of deemed receipt of such notice and the provisions of clause 4.5(d) or 4.5(e) shall apply with the necessary changes being made); and

(ii)                        upon notice to the relevant Scheme Creditor in accordance with clause 9.4, refer a Claim to the Scheme Adjudicator.

(g)                        The amount of any Agreed Claim (Pre Set-Off) determined or agreed under clause 4.5(b), (d) or (e), shall be final and binding on the Scheme Company and the relevant Scheme Creditor and, subject to clause 4.16, there shall be no right of appeal in respect thereof.

(h)                        In the event that a Claim contained in a Claim Form Submitted in accordance with the requirements of clause 4.3, has not become a Final Determined Claim by 11:59 pm Sydney time on the day on which a period of 365 days from the Final Claims Submission Date elapses (the Long Stop Date) the Scheme Company shall within a further 7 days, refer such Claim to the Scheme Adjudicator as a Disputed Claim (unless, and on such terms as, both the Scheme Creditor and the Scheme Company shall otherwise agree). The Scheme Company shall send notice in writing in accordance with clause 9.4 to the Scheme Creditor concerned, that the Claim has become a Disputed Claim and has been referred to the Scheme Adjudicator and the provisions of clause 4.6 shall apply to such Disputed Claim.

4.6                     Adjudicator dispute resolution procedure

(a)                        In referring a Claim to the Scheme Adjudicator in accordance with clause 4.5(e), 4.5(f) or 4.5(h), the Scheme Company shall provide the Scheme Adjudicator with a copy of the Claim Form relating to such Claim (as Submitted by the Scheme Creditor and, where applicable, as amended by the Scheme Company), and a copy of any notice, statement or correspondence sent or received by the Scheme Company in connection with the Claim. The Scheme Adjudicator shall have access to all of the Scheme Company's records and information in the possession of, or under the control of, the Scheme Company, which the Scheme Adjudicator considers he needs to resolve the dispute concerning such Claim subject to any claim for legal professional privilege.

(b)                        The Scheme Adjudicator shall consider the records and information sent to him in accordance with clause 4.6(a), and shall have regard to (but not be bound by) the Estimation Methodology, in relation to any Claim referred to him and, as soon as reasonably practicable, shall notify the Scheme Company and/or the Scheme Creditor concerned as to whether he requires:

(i)                          further documents, data or information, in which case the relevant person shall, within 30 days after deemed receipt of such notice, provide the Scheme Adjudicator with the required documents, data or information; and/or

(ii)                        the Scheme Company and/or the relevant Scheme Creditor to appear before him and address him on any matter he shall determine, in which case the Scheme Company and/or the relevant Scheme Creditor (or in either case its duly authorised representative) shall appear on such date, which shall be within 30 days after deemed receipt of such notice, and at such place as the Scheme Adjudicator shall prescribe. The Scheme Adjudicator shall be entitled to prescribe and lay down such procedures or provisions for the purposes of the appearance of the parties before him, as he, in his sole and absolute discretion, deems appropriate (including, without limitation, making provision for meetings via a video conferencing facility), and shall be entitled to call for such evidence, documents, data and information as he may require to assist him in reaching his decision.

(c)                        At the request of a Scheme Creditor, the Scheme Adjudicator may attend a meeting with that Scheme Creditor to discuss its Claim. Any such meeting may take place in person or via a video conferencing facility, and the Scheme Adjudicator shall be entitled to travel to another jurisdiction in order to attend a meeting with a Scheme Creditor.

(d)                        The Scheme Adjudicator may (but is not obliged to) extend any time period laid down by clause 4.6(b) as he thinks fit for any one, or more, or all, Disputed Claims.

(e)                        The Scheme Adjudicator shall be entitled to consult with such advisers, including legal advisers and experts and actuaries from any relevant jurisdiction, as he may deem appropriate in considering any Claim referred to him. The Scheme Adjudicator will consider all documents, data or information Submitted by a Scheme Creditor in support of its Claim including details of relevant actuarial principles applying in other jurisdictions.

(f)                         If any person concerned fails to provide further documents, data or information in accordance with clause 4.6(b)(i) above, or fails to appear before the Scheme Adjudicator in accordance with clause 4.6(b)(ii) above, the Scheme Adjudicator shall make such determination as he sees fit in relation to the relevant Disputed Claim on the basis of the information then available to him.

(g)                        In adjudicating on any Disputed Claim, the Scheme Adjudicator shall act as an expert and not as an arbitrator.

(h)                        The Scheme Adjudicator shall notify the relevant Scheme Creditor and the Scheme Company of his determination in respect of the relevant Disputed Claim, and of the resulting amount of the Scheme Creditor's Agreed Claim (Pre Set-Off), by notice given in accordance with clause 9.4, within 30 days after the later of:

(i)                          receipt of the documents accompanying the reference of the Disputed Claim to him in accordance with clause 4.6(a);

(ii)                        the provision of further documents, data or information to him pursuant to clause 4.6(b)(i);

(iii)                       the conclusion of any appearance before him pursuant to clause 4.6(b)(ii); or

(iv)                      the failure of the relevant party to provide such documents, data or information in accordance with clause 4.6(b)(i), or to appear before him in accordance with clause 4.6(b)(ii).

(i)                          Any such determination shall, to the extent permitted by law and subject to section 1321(a) of the Corporations Act, be final and binding on the Scheme Company and the relevant Scheme Creditor, and neither the Scheme Creditor nor the Scheme Company shall have any right of appeal from such determination. Neither the Scheme Creditor, nor the Scheme Company, shall have any right to make any claim against the Scheme Adjudicator in respect of such determination, save in respect of his negligence, wilful default, wilful breach of duty or trust, fraud or dishonesty.

(j)                          Notwithstanding clauses 6.2(b) and 6.3(c)(i), the Scheme Adjudicator must before adjudicating the Disputed Claim:

(i)                          advise the Scheme Creditor in writing that remuneration, costs, charges and expenses incurred by the Scheme Adjudicator in respect of a Disputed Claim, including the fees and expenses of any adviser or expert consulted by him pursuant to clause 4.6(e) (the Adjudication Costs) may be apportioned between the Scheme Company and the Scheme Creditor in such proportions as the Scheme Adjudicator may determine in his absolute discretion and shall be paid in accordance with clauses 4.6(k) and 4.6(l), subject to section 1321(a) of the Corporations Act; and

(ii)                        provide to the Scheme Creditor an estimate of the Adjudication Costs including an estimate of the Scheme Creditor's portion of the Adjudication Costs.

Any costs, charges and expenses incurred by the relevant Scheme Creditor or by the Scheme Company shall be borne respectively by those parties.

(k)                        The amount of the Scheme Company's share of such Adjudication Costs, calculated pursuant to clause 4.6(j), shall be paid out of the Property of the Scheme Company, in accordance with clause 6.2(b), as Scheme Costs.

(l)                          The amount of the relevant Scheme Creditor's share of such Adjudication Costs calculated in accordance with clause 4.6(j) shall, at the Scheme Adjudicator's option, be either:

(i)                          paid out of the Property of the Scheme Company in accordance with clause 6.2(b) as Scheme Costs, in which case:

A.                         the Scheme Creditor shall pay the Scheme Company the amount so paid by the Scheme Company as soon as reasonably practicable; or

B.                         at the option of the Scheme Company, the Scheme Company may deduct such amount from that Scheme Creditor's aggregate Agreed Claim (Pre Set-Off) when calculating its Final Determined Claim pursuant to clause 4.7; or

(ii)                        paid by the Scheme Creditor to the Scheme Adjudicator directly.

4.7                     Determination of Final Determined Claims

(a)                        Subject to clause 4.13, following determination of the Agreed Claim (Pre Set-Off), in respect of all of a Scheme Creditor's Claims pursuant to clause 4.5(b), 4.5(d), 4.5(e), 4.6(f) or 4.6(h), the Scheme Company shall determine the Scheme Creditor's Final Determined Claim (which may be denominated in more than one currency) by:

(i)                          deducting from the aggregate Agreed Claim (Pre Set-Off) any Advance Payments, any sum paid in accordance with clause 4.1 and any sum to be deducted pursuant to clause 4.6(l); and then

(ii)                        deducting any reinstatement premium payable in accordance with the terms of the relevant Reinsurance Contract;and then

(iii)                       applying any applicable set-off pursuant to clause 4.10.

For the avoidance of doubt, if the balance of an account is in favour of the Scheme Company, then that amount will be payable by the Scheme Creditor to the Scheme Company and there shall be no Final Determined Claim in respect of which that Scheme Creditor may receive payment.

(b)                        The Scheme Company shall notify the Scheme Creditor in writing in accordance with clause 9.4, of the value of its Final Determined Claim (the Final Determined Claim Notice) as soon as reasonably practicable (the Final Determined Claim Notification Date). Except in the case of manifest error, being an arithmetical or typographical error which is apparent on the face of the document concerned, a Scheme Creditor shall not be entitled to challenge the amount of the Final Determined Claim set out in the Final Determined Claim Notice, except where such challenge is:

(i)                          in respect of the amount of any deduction or set-off determined by the Scheme Company under clause 4.7(a)(i), (ii) or (iii), in respect of the Scheme Creditor's Agreed Claim (Pre Set-Off) (the Disputed Set-Off or Deduction); and

(ii)                        made by notice given in accordance with clause 9.4, within 30 days of the Final Determined Claim Notification Date (the Disputed Final Determined Claim Notice).

Where no such challenge is made within this 30 day period, the Scheme Company's valuation shall be deemed to have been accepted by the Scheme Creditor and shall constitute such Scheme Creditor's Final Determined Claim.

(c)                        If a Scheme Creditor wishes to challenge the value of the Disputed Set-Off or Deduction, the Scheme Company has attributed to its Final Determined Claim in accordance with clause 4.7(b), it shall, within 30 days of the Final Determined Claim Notification Date, issue the Disputed Final Determined Claim Notice to the Scheme Company, which notice shall set out in writing those matters which are not agreed and the reasons for failing to agree such matters and provide any relevant additional information to support its position. The Scheme Company and the Scheme Creditor shall endeavour to agree the disputed matters and the relevant Final Determined Claim set-off or deduction, if any, as soon as reasonably practicable. In the event that a set-off or deduction is agreed between them, the Scheme Company shall provide the relevant Scheme Creditor with written confirmation, in accordance with clause 9.4, of the agreed valuation of its Final Determined Claim, taking into account the agreed set‑off or deduction, and such valuation shall constitute the Scheme Creditor's Final Determined Claim for the purposes of the Scheme.

(d)                        If the disputed matters and the relevant Final Determined Claim are not resolved between the Scheme Creditor and the Scheme Company within 30 days of the date of the Disputed Final Determined Claim Notice, the Resolution Period, the Scheme Creditor may, no later than 30 days after the end of the Resolution Period, notify the Scheme Company in writing that it wishes the valuation of the Disputed Set-Off or Deduction to be referred to the Scheme Adjudicator. If such notification is received from the Scheme Creditor, the Scheme Company shall refer the matter to the Scheme Adjudicator as a Disputed Claim. If the Scheme Creditor does not issue a request for the value of its Disputed Set-Off or Deduction to be adjudicated before the expiry of that 30 day period, the last value attributed to the Final Determined Claim by the Scheme Company shall be deemed to have been accepted by the Scheme Creditor, and shall constitute its Final Determined Claim.

(e)                        The Scheme Adjudicator's adjudication of Final Determined Claims shall be conducted in accordance with the Dispute Resolution Procedure set out in clause 4.6, which provisions shall apply with the necessary changes being made except that the information initially provided to the Scheme Adjudicator by the Scheme Company in accordance with clause 4.6(a), shall consist of documentation evidencing the value of, the Disputed Set-Off or Deduction, together with a copy of any statement, notice, correspondence or documentation sent or received by the Scheme Company in relation to the valuation of the Scheme Creditor's Disputed Set-Off or Deduction.

(f)                         In determining the value of a Scheme Creditor's Disputed Set-Off or Deduction in accordance with clause 4.7(e) above, the Scheme Adjudicator shall take into account the Scheme Creditor's share (if any) of the Adjudication Costs described in clause 4.6(j).

(g)                        The value of a Scheme Creditor's Disputed Set-Off or Deduction, determined in accordance with clauses 4.7(a) to 4.7(f) shall, to the extent permitted by law, including section 1321(a) of the Act, be binding on the relevant Scheme Creditor and the Scheme Company as the amount of that Scheme Creditor's Disputed Set-Off or Deduction, and by virtue of its deduction from the Agreed Claim (Pre Set-Off), its Final Determined Claim, and there shall be no right of appeal in respect thereof.

4.8                     Extension of time limits

Except in respect of the Final Claims Submission Date, and the Long Stop Date, the Scheme Company may, at its absolute and sole discretion, extend any time period referred to in clause 4 (except for any time period set out in clause 4.6 which, in accordance with clause 4.6(c), shall be extended at the sole and absolute discretion of the Scheme Adjudicator), for any one or more of its Scheme Creditors and whether in respect of any one, or more, or all of such Scheme Creditor's Claims against it.

4.9                     Scheme Creditors to provide assistance

(a)                        During the Scheme Period, Scheme Creditors shall provide the Scheme Company and/or the Scheme Actuary, and/or the Scheme Adjudicator, with all reasonable assistance required by any of them in connection with the Scheme, and shall provide such assistance as they may reasonably require in connection with the recovery of any Property, or the enforcement of any obligations, owed to the Scheme Company.

(b)                        The Scheme Company shall provide the Scheme Actuary and/or the Scheme Adjudicator with all reasonable assistance required by them in connection with the Scheme.

4.10                 Set-off

(a)                        Where a Scheme Creditor owes a Liability to the Scheme Company in respect of any Reinsurance Contract (including, for the avoidance of doubt, where such Liability is contingent and/or prospective), an account shall be taken of the sums due from the relevant Scheme Creditor to the Scheme Company and from the Scheme Company to that Scheme Creditor, in relation to such Scheme Business. Sums (including contingent or prospective sums) owing by a Scheme Creditor to the Scheme Company in respect of the Scheme Business, will be set-off against sums owing by the Scheme Company to that Scheme Creditor in respect of Scheme Business. For the avoidance of doubt, pursuant to this clause, sums owing by a Scheme Creditor to the Scheme Company in respect of the latter's Scheme Business shall include, without limitation, sums owing by that Scheme Creditor in its capacity as reinsurer of the Scheme Company's Scheme Business.

(b)                        For the avoidance of doubt, contingent and prospective Claims against the Scheme Company, the amount of which have been determined as Agreed Claims (Pre Set-Off) pursuant to the terms of the Scheme, shall be included in any account taken pursuant to clause 4.10(a), including where the relevant Agreed Claims (Pre Set-Off) give rise to a reinsurance or other indemnity claim by the Scheme Company against a reinsurer/indemnitor who is also a Scheme Creditor of the Scheme Company.

(c)                        Only the balance of an account, if any, referred to in clause 4.10(a) and payable to a Scheme Creditor, as well as other sums deductible in accordance with the Scheme, shall be capable of becoming a Final Determined Claim in respect of which that Scheme Creditor may receive payment.

(d)                        The discount applying for the purposes of set-off is as follow:

(i)                          projected obligations payable within five years of the Valuation Date will be paid at face value;

(ii)                        projected obligations payable beyond five years of the Valuation Date will be discounted at a rate of 5.5% per annum for the period between five years of the Valuation Date and the expected payment date of the obligation.

4.11                 Treatment of agents

The Scheme Company shall be entitled (but shall not be bound) to treat any underwriting agent (including, but not limited to, a manager of an underwriting pool, a managing general agent or a holder of a line-slip or binding authority), as a single Scheme Creditor of the Scheme Company in respect of the Claims of its principal(s) and as a single debtor of the Scheme Company in respect of Liabilities owed to the Scheme Company by its principal(s).

4.12                 Funding

(a)                        Brokers who have funded Claims shall not constitute Scheme Creditors for the purposes of asserting such Claims in the Scheme unless:

(i)                          they have acquired an assignment of the funded Claim or written confirmation from the beneficiaries of such funding that the Brokers are entitled to Submit a Claim Form in the Scheme in the place of such beneficiaries in respect of the funded Claim, such assignment or confirmation being in a form acceptable to the Scheme Company; or

(ii)                        such funding took place:

A.                         pursuant to a contractual obligation of the Broker to the Scheme Company; or

B.                         in circumstances where, as a matter of law, the Scheme Company is liable to indemnify or reimburse such Broker.

(b)                        For the avoidance of doubt, any Broker claiming in respect of a funded Claim shall Submit a Claim Form in respect of such Claim in accordance with the provisions of clauses 4.3(a) to 4.3(f). The supporting information to be provided pursuant to clause 4.3(b) shall, unless the Broker is claiming pursuant to clause 4.12(a)(ii)B, include a copy of the relevant assignment, written confirmation or contract referred to in clause 4.12(a)(ii).

4.13                 Currency

Except where the Scheme Company and a Scheme Creditor otherwise agree:

(a)                        Claims and Agreed Claims (Pre Set-Off) shall be denominated in the currency of the relevant Reinsurance Contract.

(b)                        For the purpose of clause 4.7, the aggregate Agreed Claim (Pre Set-Off) may be denominated in more than one currency and the deductions and application of set-off, shall be applied:

(i)                          first against that element of the Agreed Claim (Pre Set-Off) which is denominated in the same currency as the items to be deducted or set-off (as the case may be);

(ii)                        thereafter against the predominant currency of the Agreed Claim (Pre Set-Off) until exhausted; and

(iii)                       thereafter against the next most predominant currency and so on.

(c)                        For the purpose of converting amounts into a predominant currency, as required by clause 4.13(b) and 4.13(d), such amounts shall be converted at the Relevant Rate of Exchange.

(d)                        Final Determined Claims shall be denominated and paid in the predominant currency in which Claims arise, unless otherwise requested by the Scheme Creditor (subject to clause 4.13(e) below), after application of the deductions and set-off required under clause 4.7.

(e)                        Where a Scheme Creditor requests that its Final Determined Claims be paid in an alternative currency to the predominant currency of its Claims, the Scheme Company may in its absolute and sole discretion, decide to accept or decline such a request.

4.14                 Payment of Final Determined Claims

(a)                        The Scheme Company shall not agree any Claims after the Effective Date, nor pay any Claims agreed after the Effective Date, otherwise than pursuant to the Scheme, save where such agreement is in the nature of a commutation or policy buy-back which is negotiated upon a basis which is in all material respects the same as that provided for under the Scheme.

(b)                        The Scheme Company shall effect payment in full of each Scheme Creditor's Final Determined Claim as soon as reasonably practicable after determination, in accordance with the Scheme. Where the Scheme Company fails to make payment in full of a Scheme Creditor's Final Determined Claim within 90 days from (but not including) the date of such Final Determined Claim having been determined, interest shall accrue on that part of the Final Determined Claim which remains unpaid, at the annual rate which is the Bill Rate in force at such time. For the avoidance of doubt, a Scheme Creditor's Final Determined Claim shall be deemed to have been determined on the day:

(i)                          upon which the 30 day period referred to in clause 4.7(b) expires, provided that no Disputed Final Determined Claim Notice has been issued during this period;

(ii)                        of any deemed receipt by the Scheme Creditor of a written confirmation given by the Scheme Company to the relevant Scheme Creditor of the agreed valuation of that Scheme Creditor's Final Determined Claim in accordance with clause 4.7(c);

(iii)                       upon which the 30 day period after the Resolution Period referred to in clause 4.7(d) expires (provided that the Scheme Creditor has not notified the Scheme Company in writing that it wishes the valuation of its Final Determined Claim to be referred to the Scheme Adjudicator during such period);

(iv)                      of any deemed receipt by the Scheme Company of notification from the Scheme Adjudicator of his determination of the amount of the Final Determined Claim.

(c)                        All payments pursuant to the Scheme shall be made, in the absolute discretion of the Scheme Company and at its expense:

(i)                          by electronic funds transfer to such bank account as the Scheme Creditor may from time to time notify to the Scheme Company; or

(ii)                        if requested by the Scheme Creditor, by cheque in favour of the Scheme Creditor (or as the Scheme Creditor may direct by written notice in accordance with clause 9.4 sent by Post at the risk of the Scheme Creditor to the last address of the Scheme Creditor known to the Scheme Company or to such other address as the Scheme Creditor may notify to the Scheme Company); or

(iii)                       in such other manner as the Scheme Company may determine,

and the Scheme Company shall be entitled to require a Scheme Creditor, or other person to execute such forms of discharge, receipt or other documents as it may determine in connection with the making of any payment pursuant to the Scheme.

(d)                        Subject to clause 4.14(e) below, any payment pursuant to this clause 4.14 which is uncashed or otherwise unclaimed by the intended payee within 6 months of payment will be transferred into a separate account and will be dealt with in accordance with the Unclaimed Money Act 1995 (NSW). The Final Determined Claim to which it relates shall be deemed to have been settled in full.

(e)                        The Scheme Company reserves the right to re-issue relevant payment instructions or unpaid cheques in respect of any unclaimed amount up to and including the Termination Date, if, in its sole and absolute discretion, it shall deem fit.

(f)                         Payments made pursuant to this clause to a Scheme Creditor or in accordance with clause 4.14(d) shall, for all purposes, constitute a valid discharge of the Scheme Company in respect of such Final Determined Claim to the extent of such payment. For the purpose of this clause 4.14, receipt by the receiving bank of the amount of an electronic funds transfer shall be satisfaction of the obligation to pay the amount transferred, and payment of any cheque by the bank on which it is drawn shall be satisfaction of this obligation to pay the amount in which it was drawn.

4.15                 No release

Subject to clause 4.4 and this clause, nothing in the Scheme shall be construed as resulting in any release, extinguishment, modification, compromise or waiver of any Liability owed by the Scheme Company, but the amount of a Scheme Creditor's entitlement to payment under the Scheme in respect of Final Determined Claims shall constitute the Scheme Company's entire Liability to the Scheme Creditor concerned in respect of its Claim, and payment in full of a Scheme Creditor's Final Determined Claim in accordance with clause 4.14 shall be in full and final settlement of all and any Claim(s) of that Scheme Creditor against the Scheme Company.

4.16                 Corporations Act appeal rights

Despite any other provision of this Scheme, nothing in this Scheme shall derogate from a person's right to appeal to the Court in respect of any act, omission or decision of a person administering this Scheme under section 1321(a) of the Act to the extent such rights may be applicable.

5.1                     The Scheme Actuary

(a)                        There shall be a Scheme Actuary having the duties and functions and the rights conferred upon him by the Scheme.

(b)                        The Scheme Actuary shall provide such advice and assistance to the Scheme Company and the Scheme Adjudicator in respect of the valuation of Claims and the application of the Estimation Methodology, as he may be requested in the discharge of his functions under the Scheme.

(c)                        The Scheme Actuary shall be a Fellow of the Institute of Actuaries of Australia and meet all the requirements to be an approved actuary under General Insurance Prudential Standard GPS220 or GPS520 (from 1 October 2006).

(d)                        The Scheme Actuary shall be Scott Collings of Finity Consulting Pty Limited.

(e)                        The office of Scheme Actuary shall be vacated, if the appointee to that office:

(i)                          dies or becomes bankrupt;

(ii)                        is admitted to hospital because of mental disorder or becomes the subject of an order in matters concerning his mental disorder made by a court having jurisdiction in such matters in Australia or elsewhere;

(iii)                       is convicted of an indictable offence;

(iv)                      resigns his office in accordance with any terms agreed with the Scheme Company;

(v)                        is removed for good cause by the Scheme Company; or

(vi)                      ceases to be a Fellow of the Institute of Actuaries of Australia.

(f)                         In the event of a vacancy in the office of the Scheme Actuary, the Scheme Company shall be entitled to appoint as a replacement Scheme Actuary, a person who is qualified so to act pursuant to clause 5.1(c), and who is not disqualified from acting in accordance with clause 5.1(e). The Scheme Company will notify the Australian Prudential Regulation Authority, following the appointment of a replacement Scheme Actuary.

(g)                        The Scheme Actuary shall be paid such remuneration for (as well as costs, charges and expenses incurred in), the exercise and performance of his powers, rights, duties and functions under the Scheme as may be agreed between the Scheme Actuary and the Scheme Company, such remuneration, costs, charges and expenses are to be paid as a Scheme Cost.

5.2                     Responsibility and indemnity

(a)                        No Scheme Creditor shall be entitled to challenge the validity of any act done or omitted to be done by the Scheme Actuary or his Employees or Delegates pursuant to the provisions of the Scheme or in the exercise or performance of any power, right, duty or function conferred upon him under the Scheme and the Scheme Actuary, his Delegates and/or Employees shall not be liable for any loss, unless such loss is attributable to their own (or in the case of the Scheme Actuary, his Employee's or Delegates') fraud or dishonesty.

(b)                        Subject to the Act, the Scheme Actuary (in his capacity as such) and each of his Employees and Delegates shall, in relation to the Scheme Company, be entitled to an indemnity out of the Property of the Scheme Company against:

(i)                          all expenses and liabilities properly incurred by such Scheme Actuary, his Employees and/or Delegates in performing or exercising any power, right, duty or function conferred upon him under the Scheme in respect of the Scheme Company; and

(ii)                        any liability incurred by such Scheme Actuary, his Employees and/or Delegates in defending any Proceedings, whether civil or criminal, in respect of any alleged negligence, wilful default, wilful breach of duty or trust, fraud or dishonesty on their part, in relation to the operation of the Scheme, in which judgment is given in their favour or in which they are acquitted or which are discontinued before judgment is given; or in connection with any application in any such Proceedings in which relief is granted to them by a court from liability for negligence, wilful default, wilful breach of duty or trust, fraud or dishonesty on his part in relation to the operation of the Scheme.

(c)                        The Scheme Company may pay costs incurred by any Scheme Actuary in defending Proceedings of the nature described in clause 5.2(b)(ii) which relate to the operation of the Scheme, provided that the Scheme Actuary undertakes to reimburse the Scheme Company (with interest) for any amount which would not, in the event, have been payable by the Scheme Company under clause 5.2(b)(ii).

6.1                     Qualification, resignation and removal

(a)                        Subject to the appointment of an alternate Scheme Adjudicator in accordance with clause 6.1(b), there shall be one Scheme Adjudicator who shall be an individual who is duly qualified in the reasonable opinion of the Scheme Company, in consultation with the Scheme Actuary, to discharge the function of the Scheme Adjudicator under the Scheme. The first Scheme Adjudicator shall be Mark Moyes of 3 red Pty Ltd.

(b)                        In the event that:

(i)                          the Scheme Adjudicator becomes aware that he has a conflict of interest in relation to any matter referred to him (in which case the Scheme Adjudicator shall, as soon as reasonably practicable thereafter, inform the Scheme Company of such conflict); and/or

(ii)                        the Scheme Company becomes aware that the Scheme Adjudicator has a conflict of interest in relation to any matter referred to the Scheme Adjudicator (in which case the Scheme Company will notify the Scheme Adjudicator of such conflict),

the Scheme Company shall, in either event, nominate an alternate Scheme Adjudicator qualified to act in accordance with clause 6.1(a), for the sole purpose of adjudicating on the relevant matter and shall, as soon as reasonably practicable, give notice of such nomination to the Scheme Creditor in relation to which the conflict arises. If the relevant Scheme Creditor fails to object to the Scheme Company's nomination within 7 days of deemed receipt by it of the notice of the nomination, or agreement is otherwise reached between the Scheme Company and the Scheme Creditor within that period, the Scheme Company shall have the power to appoint the nominated or agreed alternate Scheme Adjudicator. If the Scheme Creditor objects to the nomination and the Scheme Company and the Scheme Creditor cannot agree on the identity of an alternate Scheme Adjudicator within 7 days, the Scheme Company shall request the appointment of a suitably qualified Scheme Adjudicator to be made by the President of the Institute of Actuariesof Australia for the time being, whose decision shall be final. The Scheme Adjudicator's appointment shall continue during the appointment of any alternate Scheme Adjudicator and he shall continue to adjudicate on other matters referred to him unless a conflict shall arise in respect of those matters in which case the terms of this clause6.1(b) shall apply.

(c)                        For the avoidance of doubt, the provisions of clauses 6.1(d), 6.1(e), 6.2, and 6.3 shall apply with the necessary changes made to any alternate Scheme Adjudicator appointed pursuant to clause 6.1(b).

(d)                        The Scheme Adjudicator may continue to act in spite of a conflict of interest, if the Scheme Creditor in relation to whom the conflict arises, and the Scheme Company, agree in writing to permit the Scheme Adjudicator to act and, if the Scheme Adjudicator himself is willing to act, notwithstanding such conflict. Any such waiver of a conflict will only be made after the Scheme Adjudicator, relevant Scheme Creditor and the Scheme Company have been provided with (and have provided), sufficiently detailed disclosure of the circumstances and nature of the conflict to enable each of them to take an informed decision on whether the conflict may be waived without prejudicing or embarrassing any of them.

(e)                        The office of Scheme Adjudicator shall be vacated if the appointee to that office shall:

(i)                          die or become bankrupt;

(ii)                        be admitted to hospital because of mental disorder or be the subject of an order in matters concerning his mental disorder made by a court having jurisdiction in such matters in Australia or elsewhere;

(iii)                       be convicted of an indictable offence;

(iv)                      resign his office in accordance with any terms agreed with the Scheme Company; or

(v)                        be removed for good cause by the Scheme Company,

and the Scheme Company shall forthwith appoint a person who is qualified to act as Scheme Adjudicator pursuant to clause 6.1(a), and not ineligible by reason of any of the matters referred to in this clause 6.1(e).

(f)                         Any alternate or replacement Scheme Adjudicator must enter into a deed poll agreeing to be bound by the terms of this Scheme in a similar form to that entered into by the original Scheme Adjudicator (with the necessary changes being made).

6.2                     Powers, rights, duties and functions

(a)                        The Scheme Adjudicator shall be responsible for the adjudication of Disputed Claims and the determination of Agreed Claims (Pre Set-Off) (in the case of a referral under clauses 4.5(e), 4.5(f) or 4.5(h)) or Final Determined Claims (in the case of a referral under clause 4.7(d), in respect of such Disputed Claims and shall have the powers, rights, duties and functions conferred upon him by the Scheme for such purposes.

(b)                        The Scheme Adjudicator shall be paid such remuneration for the exercise and performance of his powers, rights, duties and functions under the Scheme as may be agreed between the Scheme Adjudicator and the Scheme Company. Subject to clauses 4.6(j) and 4.6(l), such remuneration shall be paid out of the Property of the Scheme Company as Scheme Costs.

6.3                     Responsibility and indemnity

(a)                        In exercising his powers and rights and in carrying out his duties and functions under the Scheme, the Scheme Adjudicator shall act in good faith and with due care and diligence and shall exercise his powers and rights under the Scheme to ensure that the Scheme is operated in accordance with its terms.

(b)                        No Scheme Creditor shall be entitled to challenge the validity of any act done or permitted to be done within his powers and in good faith and with due care and diligence by the Scheme Adjudicator, pursuant to the provisions of the Scheme or in the exercise or performance of any power, right, discretion, duty or function conferred upon him under the Scheme, and the Scheme Adjudicator shall not be liable for any loss unless any such loss is attributable to his own negligence, wilful default, wilful breach of duty or trust, fraud or dishonesty.

(c)                        Subject to the Act, the Scheme Adjudicator shall be entitled to an indemnity out of the Property of the Scheme Company against:

(i)                          all costs, charges, expenses and liabilities properly incurred by him in the course of exercising or performing his powers, rights, duties or functions under the Scheme in relation to the Scheme Company; and

(ii)                        any liability incurred by him in defending any Proceedings, whether civil or criminal, in respect of any negligence, wilful default, wilful breach of duty or trust, fraud or dishonesty on his part in relation to the operation of the Scheme in which judgment is given in his favour or in which he is acquitted; or in connection with any application in any such Proceedings in which relief is granted to him by a court from liability for negligence, wilful default, wilful breach of duty or trust, fraud or dishonesty on his part in relation to the operation of the Scheme.

(d)                        The Scheme Company may pay costs incurred by the Scheme Adjudicator in defending Proceedings of the nature described in clause 6.3(c)(ii), provided that the Scheme Adjudicator undertakes to reimburse the Scheme Company (with interest) for any amount which would not, in the event, have been payable by the Scheme Company under clause 6.3(c)(ii).

The powers of the Board shall remain as immediately before the Effective Date.

8.1                     Final implementation of the Scheme

Without prejudice to the continuing effect of those provisions of the Scheme set out in clause 8.3, the Scheme shall be fully implemented upon written confirmation by the Scheme Company to the Scheme Adjudicator that all Claims have been adjudicated or otherwise determined and all Final Determined Claims have been paid in full (or deemed to have been satisfied in full) in accordance with the terms of the Scheme. The date of such confirmation shall be the Termination Date. This confirmation shall be given as soon as is reasonably practicable after all Final Determined Claims have been paid in full (or deemed to have been satisfied in full). The Scheme Adjudicator and the Scheme Actuary shall be released from their obligations under the Scheme on the Termination Date.

8.2                     Reversion to run-off

(a)                        If at any time on or before 90 days after the Final Claims Submission Date, the Scheme Company determines that the total value of Claims Submitted (or treated as so submitted) by Scheme Creditors on or prior to the Final Claims Submission Date is materially in excess of the Accounting Claims Provision (in the judgment of the directors of the Scheme Company, acting reasonably and taking into account the level at which they reasonably consider Claims may ultimately be determined in accordance with the Scheme) then the Scheme Company may send notice to all its Scheme Creditors in accordance with clause 9.4, and place a notice in those newspapers and publications in which the Creditors' Meetings were advertised (or should this not prove reasonably possible, in such other publications as it shall deem appropriate), that the Scheme shall terminate (the first date on which any such advertisement appears being the Reversion to Run-Off Date).

(b)                        If the business of the Scheme Company reverts to run-off as contemplated by this clause 8.2:

(i)                          Agreed Claims (Pre Set-Off) determined hereunder, but which have not become Final Determined Claims pursuant to clause 4.7, shall cease to be binding on the Scheme Company and Scheme Creditor;

(ii)                        Final Determined Claims (which have not yet been paid), shall continue to be binding upon the Scheme Company and the Scheme Creditor (and therefore shall remain payable hereunder, if not yet paid), except where the Scheme Creditor elects otherwise, by written notice sent to the Scheme Company in accordance with clause 9.4, no later than 30 days after the Reversion to Run-off Date, in which case, such determination shall likewise cease to be binding upon the Scheme Company and that Scheme Creditor;

(iii)                       Final Determined Claims which have been paid by the Scheme Company will continue to be binding upon the Scheme Company and the Scheme Creditor. For this purpose a Final Determined Claim will be treated as being paid on the earlier of the Scheme Creditor receiving cleared funds for the Final Determined Claim, and 7 days after the Scheme Company has posted a cheque to the Scheme Creditor for the Final Determined Claim.

8.3                     Provisions surviving termination

Clauses 2, 3.1, 3.2, 4.3(e), 4.3(f), 4.4(a), 4.4(c), 4.5(g), 4.6(i), 4.7(g), 4.10(c), 4.14(d), 4.15, 5.2, 6.3, 8.2(b), 9.2, 9.4, 9.5 and 9.6 shall survive termination of the Scheme.

9.1                     Effective Date

The Scheme shall become effective on the Effective Date.

9.2                     Pre-Scheme Expenses and Scheme Costs

(a)                        As soon as practicable after the Effective Date, there shall be paid in full out of the Scheme Company's Property, all Pre-Scheme Expenses.

(b)                        There shall be paid in full, out of the Scheme Company's Property, as incurred, all Scheme Costs.

9.3                     Modification of the Scheme

The Scheme Company, by its solicitors or counsel, may at any hearing by the Court to sanction the Scheme, consent on behalf of its Scheme Creditors, to any modification of, or addition to, the Scheme or any terms or conditions which the Court may think fit to approve or impose.

9.4                     Notices

(a)                        Without prejudice to clause 4, any notice or other written communication to be given under, or in relation to, the Scheme shall be given in writing and shall be deemed to have been duly given if:

(i)                          in the case of the Scheme Company, it is sent by email to schemes@recentre.com.au (email address), or it is sent Electronically to +(61) (02) 9274 3033 (fax number) or it is sent by Post c/o Littlewoods Services Pty Limited, Level 21, Tower Building, Australia Square, 264 George Street, Sydney, New South Wales, Australia, , marked for the attention of Ross Littlewood, or such other email address, fax number or postal address as the Scheme Company may notify to the relevant Scheme Creditor by Post;

(ii)                        in the case of the Scheme Adjudicator, it is sent by Post, to Mark Moyes, c/- 3 red Pty Ltd, PO Box 761, Woollahra, New South Wales, 1350, Australia, or sent Electronically to +(61) (02) 9327 3601 (fax number) or mmoyes@3red.com.au (email address) marked for the attention of Mark Moyes, or such other address, fax number or email address as the Scheme Company may notify to the relevant Scheme Creditor by Post;

(iii)                       in the case of a Scheme Creditor, it is sent by Post, to its last known address or it is sent Electronically to the last known fax number or email address for the Scheme Creditor in each case according to the Scheme Company's records; and

(iv)                      in the case of a Known Broker, it is sent by Post, to his last known address or, it is sent Electronically to the last known fax number or email address for that Broker in each case according to the Scheme Company's records.

(b)                        Except as otherwise provided herein, any notice or other written communication to be given under the Scheme shall be deemed to have been received:

(i)                          if delivered by hand, on the first Business Day following delivery;

(ii)                        if sent by post, on the second Business Day after posting, if the recipient is in the country of despatch and otherwise on the seventh Business Day after posting;

(iii)                       if sent by fax between 9:00 am and 5:00 pm (local time of the recipient) on a Business Day, upon receipt of a clear fax transmission report (and if not sent during this time, the fax shall be deemed received at 9:00 am, (local time), on the next following Business Day); and

(iv)                      if sent by email between 9:00 am and 5:00 pm (local time of the recipient), on a Business Day, at the time of sending recorded by the sender's computer (and if not sent during this time, the email shall be deemed received at 9:00 am, (local time), on the next following Business Day).

(c)                        In proving service, it shall be sufficient proof in the case of a notice sent by Post, that the envelope was properly stamped, addressed and placed in the Post.

(d)                        For the purposes of clause 4, the accidental omission to send any notice, written communication or other document in accordance with this clause or the non-receipt of any such notice by any Scheme Creditor, shall not affect the provisions of clause 4.

9.5                     Calculation of time periods

Unless otherwise specified, time periods laid down by the Scheme shall be calculated by reference to elapsed days and not Business Days. In the event that a time period expires on a day which is not a Business Day, such period shall be deemed not to expire until close of business on the Business Day next following.

9.6                     Governing law and jurisdiction

(a)                        The Scheme shall be governed by, and construed in accordance with, the laws of New South Wales, Australia.

(b)                        The Scheme Creditors hereby agree that the Court shall have non-exclusive jurisdiction to hear and determine any Proceedings and to settle any dispute which may arise out of the Scheme Booklet or any provision of the Scheme, including this clause 9.6, or out of any action taken or omitted to be taken under the Scheme or in connection with the administration of the Scheme.

(c)                        The Scheme Creditors irrevocably submit to the non-exclusive jurisdiction of the Court.

(d)                        Nothing in this clause 9.6, shall affect the validity of any other provisions determining governing law and jurisdiction as between the Scheme Company and any of its Scheme Creditors, whether contained in any Reinsurance Contract or otherwise.

(e)                        Notwithstanding the provisions of clause 9.6(a), the Scheme Company retains the right to bring Proceedings in the courts of any other country having jurisdiction under its own laws to hear such Proceedings.