EXHIBIT
4.31


 


Deed of access, indemnity and
insurance – Mr Robert G Elstone


 





















 


Deed of Access,
Indemnity and Insurance


 


Date:


 


Parties:                                                                                                                                         NATIONAL AUSTRALIA BANK LIMITED (ACN 004 044 937) having its registered
office at Level 24, 500 Bourke Street, Melbourne, Victoria, Australia (“Company”)


 


ROBERT
GEORGE ELSTONE                                  of
32 MORELLA PLACE, CASTLE COVE, 2069                           
in the State of NSW                      (“Director”)


 


Recitals:


 


A.            The Director has been appointed as a
director of the Company.


 


B.             It is a condition of the Director
agreeing to continue to act as a director of the Company that the Company allow
the Director access to Board Paper Records, indemnify the Director and maintain
insurance on the terms of this Deed.


 


Operative provisions:


 


1              Definitions


 


1.1           In this Deed:


 


Board Papers means:


 


(a)            all communications in writing or Documents provided
from or on behalf of the Company or its related body corporates to the Director
during the Director’s Term including, without limitation, board papers,
submissions, minutes, letters, memoranda, board committee or sub-committee
papers whether for the purposes of board meetings, meetings of committees or
otherwise; and


 


(b)            all other Documents made available to the Director or
referred to in any of the abovementioned Documents,


 


whether or not legal professional privilege
applies to such documents.


 


Board Paper Premises has the meaning given to that
term in clause 2.1.


 


Board Paper Records means the Board Papers stored
in paper form or such other form as will permit ready access to, and
reproduction of, such Board Papers by the Director.


 


Claim means:


 


(a)            any writ, summons, cross-claim, counterclaim,
application or other originating legal or arbitral process against the


 





















 


Director as a director of the Company or a
related body corporate of the Company;


 


(b)           any hearing, complaint, enquiry, investigation or
proceeding however commenced or originating against the Director as a director
of the Company or a related body corporate of the Company; or


 


(c)            any written or oral demand or threat that might result
in the Director reasonably believing that any such writ, summons, cross-claim,
counterclaim, application, other originating legal or arbitral process,
hearing, complaint, enquiry, investigation or proceeding referred to in (a) or
(b) above may be initiated.


 


Director’s Term means the period commencing
on the earlier of the first day the Director consents to act as a director of
the Company and the first day the Director begins to act as a Director of the
Company and ends on the later of the day on which the Director retires or
resigns as a director of the Company and the day on which the Director ceases
to act as a director of the Company.


 


Document means any information in any form (whether
visible or not) of storage from which the information can be reproduced and any
form in which information is embodied or encoded and includes:


 


(a)            anything on which there is writing;


 


(b)           a map, plan, drawing or photograph; or


 


(c)            any material used in a presentation to Directors.


 


Insurance Policy means an insurance policy or
policies insuring against the following liabilities incurred by the Director in
the Director’s capacity as an officer of the Company or a related body corporate
of the Company:


 


(a)            a liability for costs and expenses incurred by the
Director in defending proceedings, whether civil or criminal and whatever their
outcome; and


 


(b)            a liability incurred by the person as a director
unless liability arises out of conduct involving:


 


(i)             a wilful breach of duty in relation to the Company or
related body corporate; or


 


(ii)            without limiting (i), a contravention of section 182
or 183 of the Corporations Law,


 


or, with the prior written consent of the Director,
such other liability as may be permitted under the Company’s Constitution from
time to time.


 


Period means the period commencing on the earlier
of the first day the Director consents to act as a director of the Company and
the


 





















 


first day the Director begins to act as a Director of
the Company and ends on the day seven years from the later of the day on which
the Director retires or resigns as a director of the Company and the day on
which the Director ceases to act as a director of the Company.


 


related body corporate has the meaning given to it
by section 50 of the Corporations Law.


 


1.2           In this Deed unless the contrary intention appears:


 


(a)            a reference to this Deed or another instrument
includes any variation or replacement of either of them;


 


(b)            a reference to a statute, ordinance, code or other law
includes regulations and other instruments under it and consolidations,
amendments, re-enactments or replacements of any of them;


 


(c)            the singular includes the plural and vice versa;


 


(d)            the word person includes a natural person, firm, a
body corporate, an unincorporated association, trust, joint venture,
partnership or an authority;


 


(e)            a reference to a person includes a reference to the
person’s personal representatives, executors, administrators and successors;
and


 


(f)             a reference to a liability incurred “as a director of
the Company” includes a reference to a liability incurred by a person who has
ceased to be a director of the Company to the extent the liability relates to
an act or omission occurring while that person was a director.


 


1.3           This Deed enures for the benefit of the Director’s
personal representatives, executors and administrators.


 


2              Access to Board Papers


 


The Company’s Undertaking


 


2.1           The Company undertakes to ensure that throughout the
Period it will:


 


(a)            hold a complete set of Board Paper Records in an
orderly fashion on behalf of the Director securely and safely at a suitable
secure premises (“Board Paper Premises”);


 


(b)            promptly notify the Director in writing upon request
of the address of the Board Paper Premises; and


 


(c)            allow the Director and the Director’s representatives
full and free access (at no cost to the Director) to the Board Paper Records
and the Board Paper Premises at all reasonable times during the Period,
including providing the information, assistance and facilities (including
photocopying facilities) that the Director reasonably requires in order to
examine


 





















 


and, subject to clause 2.2, make and take away copies
of the Board Paper Records or any part of them.


 


Director’s Undertaking


 


2.2           The Director undertakes:


 


(a)            to observe the same duties of confidentiality to the
Company and any related body corporate of the Company in relation to the Board
Papers as if the Director remained a Director of the Company except that the
Director may disclose:


 


(i)             Board Papers to the Director’s representatives on a
confidential basis and for proper purposes and provided that such
representatives agree in writing with the Company to observe the undertakings
under this clause 2.2, as if they were a Director; and


 


(ii)            those parts of the Board Papers where
disclosure is required as part of court proceedings brought against the
Director by any person (including the Company or a related body corporate of
the Company) to third parties connected with such proceedings or as otherwise
required by law; and


 


(b)            in respect of any Board Papers to which legal
professional privilege applies in favour of the Company or a related body
corporate of the Company ensure that unless with the consent of the Company
(such consent not to be unreasonably withheld), he or she does not waive the
privilege or knowingly do any act or thing which act or thing could cause that
privilege to be waived, extinguished or lost.


 


Extension of provisions if legal proceedings commence


 


2.3           If a Claim is made against a Director during the
Period, all of the rights and obligations created by this clause 2 will
continue to operate until final resolution of that claim including any appeal
proceedings.


 


3              Indemnity for liability as
Director


 


Indemnity


 


3.1           The Company indemnifies the Director, to the relevant
extent, against a liability (including a liability for costs or expenses)
incurred by the Director as a director to another person, other than:


 


(a)            liability to the Company or a related body corporate
of the Company; or


 


(b)            liability arising out of conduct involving a lack of
good faith,


 


or, with the prior written consent of the Director,
such other liability as may be permitted under the Company’s Constitution from
time to time.


 





















 


3.2           The indemnity in clause 3.1 does not apply to a
liability incurred before 15 April 1994.


 


3.3           It is not necessary for the Director to incur expense
or make payment before enforcing the Director’s right of indemnity under this
clause.


 


Costs and expenses


 


3.4           Without limiting clause 3.1, to the relevant extent,
the Company indemnifies the Director against a liability for costs or expenses
incurred:


 


(a)            in defending any proceedings relating to the Director’s
position with the Company or a related body corporate of the Company, whether
civil or criminal, in which judgment is given in the Director’s favour or in
which the Director is acquitted; or


 


(b)            in connection with any application, in relation to
such proceedings, in which relief is granted to that Director under the Corporations Law by the court.


 


Payment


 


3.5           Subject to clause 3.9, if the Director becomes liable
to pay any amount in respect of which the Director is indemnified, the Company
must indemnify the Director by paying the Director within 30 days from the date
the Director provides satisfactory evidence to the Company that the Director is
liable to pay that amount.


 


Nature of indemnities


 


3.6           Subject to the other provisions of this Deed, the
indemnities provided by clauses 3.1 and 3.4:


 


(a)            have effect in respect of acts or omissions prior to
the date of this Deed and in respect of liabilities which have been incurred
prior to the date of this Deed;


 


(b)            are irrevocable;


 


(c)            continue irrespective of one or more previous
applications of the clause; and


 


(d)            continue in full force and effect without limit in
point of time in relation to any act, omission, matter or event occurring or
arising while the Director is a director of the Company, or a related body
corporate of the Company, and notwithstanding that the Director has ceased to
be a director of the Company, or a related body corporate of the Company,
before any claim is made under this Deed.


 


Undertakings


 


3.7           The Director undertakes to advise the Company in
writing immediately the Director becomes aware of any circumstances which could
be reasonably expected to give rise to a claim under this Deed.


 





















 


3.8           The Director further undertakes:


 


(a)            at the direction of the Company, to take such action
as the Company may reasonably require to avoid, dispute, defend or appeal any
proceeding connected with a possible claim under this Deed;


 


(b)            to assist the Company, any related body corporate of
the Company and their insurers to the best of the Director’s abilities in any
action the Company, any related body corporate of the Company or their
insurers, takes to avoid, dispute, defend or appeal any proceeding connected
with a possible claim under this Deed;


 


(c)            not to admit any liability for or settle any
proceeding which may give rise to a claim under this Deed without the prior
consent of the Company, which consent must not be unreasonably withheld;


 


(d)            upon request by the Company, to render all reasonable
assistance and co-operation to the Company, and any related body corporate of
the Company or their insurers in the conduct of any Claim, including, without
limitation, providing the Company, its related body corporates or its insurers
with any Documents, authorities and directions that the Company, its related
body corporates or its insurers may reasonably require for the prosecution or
advancement of any cross-claim or counterclaim;


 


(e)            upon request by the Company or its insurers, to do
everything necessary or desirable which the Company reasonably requests to
enable the Company or its insurers (so far as it is possible) to be subrogated
to and enjoy the benefits of the Director’s rights in relation to any
cross-claims or any claims against any third party (including an insurer) and
render such assistance as may be reasonably requested by the Company or its
insurers for that purpose;


 


(f)             to notify any Claim to an insurer or any other person
who may be liable to indemnify the Director in respect of that Claim and
promptly take all reasonable steps to enforce all the Director’s rights against
the insurer or other person;


 


(g)            to refund to the Company all amounts incurred by the
Company under this Deed in respect of a claim under this Deed if it is
established that the Director is not entitled to be indemnified under clause
3.1 in respect of that claim, such refund to be made within 30 days of the
Company providing to the Director details of such amounts; and


 


(h)            if the Company has pursuant to this Deed paid an
amount for costs and expenses incurred by a Director and judgment is not
subsequently given in favour of the Director, the Director is not subsequently
acquitted or the Court does not grant relief to the Director under the
Corporations Law, pay the Company an amount equal to the amount so paid by the
Company, the payment to be made within 30 days of the Company providing to the


 





















 


Director details of the amount and payment of it by
the Company.


 


Without
limiting paragraph (g), paragraph (h) does not apply to a payment made by the
Company pursuant to clause 3.1.


 


3.9           The indemnity under this Deed given to a Director is
in addition to any other indemnity given by the Company to the Director whether
by agreement, under the Constitution, by statute or otherwise, but nothing in
this Deed requires the Company to pay more than once in respect of any claim.


 


3.10         If a Director receives payment in respect
of any liability, cost or expense from any insurer of the Director or from a
person (other than the Company) legally obliged to make that payment, the
Company is not required to indemnify the Director under this Deed in respect of
that liability, cost or expense to the extent of that payment.


 


3.11         The Company is entitled to do one or more
of the following:


 


(a)            assume the conduct, negotiation or defence of a Claim;


 


(b)            institute a cross-claim or a counterclaim; and


 


(c)            retain lawyers in relation to a Claim to act on behalf
of both the Director and the Company,


 


and when it does so the conduct of the
claim will be under the management and control of the Company or its insurers.


 


3.12         In this clause, “to the relevant extent”
means to the extent and for the amount that the Director:


 


(a) 
is not otherwise entitled to be indemnified;  and


 


(b) 
has not actually been so indemnified.


 


4              Maintenance of insurance
coverage


 


4.1           Without limiting the indemnity in clause 3, the
Company undertakes to ensure that throughout the Period it:


 


(a)            takes out and maintains an Insurance Policy in an
amount and on terms and conditions (including but not limited to insuring
clauses, exclusions and amounts) as are appropriate for a reasonably prudent
company in the Company’s circumstances;


 


(b)            pays the premium for the Insurance Policy within the
credit terms of the demand for payment and, on request from the Director,
produces receipts for the payment;


 


(c)            does not do or permit to be done anything which
prejudices, and immediately rectifies anything which might prejudice, the
Insurance Policy;


 





















 


(d)            on request from the Director, provides the Director with a
copy of the Insurance Policy and any certificates of insurance connected with
it;


 


(e)            notifies the Director immediately if, for any reason,
the Insurance Policy is cancelled (such notification shall not be taken to
limit any other obligations of the Company under this Deed).


 


4.2           Upon request by the Company, a Director must take such
steps as the Company may reasonably require to enable it to take out and
maintain the Insurance Policy.


 


5              Severability


 


5.1           If any provision of this Deed is invalid or
unenforceable, the invalidity or unenforceability of that provision does not
affect the validity, enforceability, operation, construction or interpretation
of any other provision of this Deed, with the intent that the invalid or
unenforceable provision shall be treated for all purposes as severable from
this Deed.


 


5.2           Clause 5.1 shall not be construed as permitting
anything which would be contrary to public policy.


 


6              Governing law and
jurisdiction


 


6.1           This Deed is governed by the law in force in Victoria.


 


6.2           Each party irrevocably and unconditionally submits to
the non-exclusive jurisdiction of the courts of Victoria and courts of appeal
from them.


 


 


EXECUTED as a deed


 


 


	
  SIGNED, SEALED AND DELIVERED

  	
   

  	
   

  
	
  by ROBERT GEORGE ELSTONE

  	
   

  	
   

  
	
  in the presence of:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  [Original
  signed]

  	
   

  
	
  [Original signed]

  	
   

  	
   

  	
   

  	
   

  
	
  Signature of witness

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  MALCOLM STARR

  	
   

  	
   

  	
   

  
	
  Name of witness (block letters)

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  91 GROSVENOR RD, LINDFIELD 2070

  	
   

  	
   

  
	
  Address of witness

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  LAWYER

  	
   

  	
   

  	
   

  
	
  Occupation of witness

  	
   

  	
   

  



 





















 


	
  THE COMMON SEAL of
  NATIONAL

  	
   

  	
   

  
	
  AUSTRALIA BANK LIMITED
  is affixed 

  	
   

  	
   

  
	
  in accordance with its constitution in the

  	
   

  	
   

  
	
  presence of:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  [Original
  signed]

  	
   

  
	
  [Original signed]

  	
   

  	
   

  	
  Signature of authorised person

  	
   

  
	
  Signature of authorised person

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  COMPANY SECRETARY

  	
   

  	
   

  	
  DIRECTOR

  	
   

  
	
  Office held

  	
   

  	
  Office held

  
	
   

  	
   

  	
   

  
	
  BRENDAN CASE

  	
   

  	
  JOHN STEWART

  	
   

  
	
  Name of authorised person

  (block letters)

  	
   

  	
  Name of authorised person
  (block letters)