Medium Business Support Grant – Terms and Conditions

1. Application and acceptance of Terms and Conditions

1.1. The NSW Government is delivering the Medium Business Support Grant Program (the Program). The Program is jointly funded by the Commonwealth and NSW State Government under the Disaster Recovery Funding Arrangements 2018. Under the Program, eligible medium businesses and not-for-profit organisations impacted by the 2022 Floods (as defined below), which commenced in August and September 2022, may apply for a payment of up to $200,000 to help cover costs of clean-up and Reinstatement of their business where they have suffered Direct Damage.

1.2. Payments made under the Program will be made as act of grace payments under section 5.7(1) of GSF Act. The conditions in clause 7.1 are conditions imposed by the Minister for Customer Service and Digital Government or his delegate on the making of the payment under section 5.7(2) of the GSF Act. If any of the conditions in clause 7.1 are contravened by the grant recipient, the payment may be recovered from the recipient by the Crown as a debt due to the Crown pursuant to section 5.7(3) of the GSF Act.

1.3. By applying to receive a payment under the Program, Applicants agree to be bound by these Terms and Conditions.

1.4. Additional information about the type of documentation and evidence required to apply for payments under the Program is available on the Service NSW website.

2. Definitions and interpretation

2.1. In these Terms and Conditions, unless the context otherwise requires:

2022 Floods means the NSW severe weather and flooding events commencing 4 August 2022 (declared disaster AGRN 1030) and 14 September 2022 (declared disaster AGRN 1034).

ABN means an Australian Business Number.

ACNC means the Australian Charities and Not-for-profits Commission.

Applicant means a business or not-for-profit organisation that makes an application to receive a payment under the Program.

Crown means the Crown in right of the State of New South Wales.

Defined Area means the following Shire Local Government Areas: Balranald Shire, Berrigan Shire, Bogan, Bourke, Brewarrina, Cabonne Shire, Carrathool, Central Darling, Cobar, Cowra Shire, Dubbo Regional, Edward River, Federation, Forbes Shire, Griffith, Gunnedah Shire, Hay, Junee Shire, Lachlan Shire, Leeton, Moree Plains Shire, Murray River, Murrumbidgee, Narrabri Shire, Narrandera Shire, Parkes Shire, Wagga Wagga City, Walgett Shire, Warren, Warrumbungle and Wentworth.

Direct Damage means a direct and material impact of the 2022 Floods on a business’ or not-for-profit organisation’s property, premises, equipment or other assets.

Eligible Expenses means expenses incurred between 4 August 2022 (if affected by declared disaster AGRN 1030) or 14 September 2022 (if affected by declared disaster AGRN 1034) and 29 March 2024 and paid by the Applicant for the purpose of re-establishment, retention of operations, clean-up and Reinstatement of the Applicant’s business that is directly linked with the 2022 Floods and may include the following:

(a) engagement of a tradesperson to conduct a safety inspection of damage to a property, premises, or equipment of the Applicant;

(b) purchasing, hiring or leasing equipment or materials to clean a property, premises, or equipment of the Applicant;

(c) purchasing, hiring or leasing equipment or materials that are essential for immediately resuming the Applicant’s operations;

(d) employing a person to clean a property, premises or equipment if:

(i) the cost would not ordinarily have been incurred in the absence of the 2022 Floods; or

(ii) the cost exceeds the costs of employing a person to clean the property, premises or equipment that would ordinarily have been incurred in the absence of the 2022 Floods;

(e) removing and disposing of debris or damaged materials at the Applicant’s business premises;

(f) removing and disposing of spoiled goods and stock due to power outage at the Applicant’s business premises;

(g) repairing a building, or repairing or replacing fittings in a building, if the repair or replacement is essential for resuming the Applicant’s operations. If the Applicant operates from residential premises, funds may only be used for the portion of damage to the building or fixtures that is:

(i) owned by the Applicant, evidenced by a title search, rates notice and/or certificate of title; and

(ii) used predominantly for business activities, evidenced by financial records, photos, video evidence or a statutory declaration;

(h) replacing lost or damaged stock if the replacement is essential for immediately resuming the Applicant’s operations;

(i) replacing or repair of motor vehicles that have been directly damaged by the 2022 Floods and which are registered for business use by the Applicant and are essential for Reinstatement;

(j) leasing temporary premises for the purpose of resuming operations of the Applicant; or

(k) temporarily adopting online business operations, while undertaking re-establishment, retention of operations, clean-up or Reinstatement;

but Eligible Expenses excludes the following:

(a) repairs to a building, equipment or other assets which are not used in the operation of the Applicant’s business;

(b) costs already covered by insurance, which includes claims paid out and claims made and pending payment under insurance policies;

(c) costs which are already covered by funding or assistance which the applicant has received from any other government source or program or donation in relation to the 2022 Floods; or

(d) for loss of income as a result of the 2022 Floods.

Evidence of Payment means any of the following:

(a) an invoice including:

i. the name, address and ABN (if applicable) of the entity that issued the invoice; and

ii. a description of each item to which the invoice relates; and

iii. includes evidence that the invoice has been paid (where Eligible Expenses exceed $25,000); or

(b) a receipt including:

i. the name and address and ABN (if applicable) of the entity that issued the receipt; and

ii. a description of each item to which the receipt relates; or

(c) a copy of the Applicant’s bank transfer and/or bank statement together with other records or evidence which clearly shows the purpose and recipient of the relevant transfer or payment shown in the bank transfer or bank statement records supplied.

Farm Enterprise means a business producing crops, livestock, forestry for the commercial production of products for consumers, or any activity listed in Division A of the Australian New Zealand Standard Industrial Classification 2006 (ANZSIC) 1292.0 (Revision 2.0), published by the Australian Bureau of Statistics.

GSF Act means the Government Sector Finance Act 2018 (NSW).

NSW Government means the Crown in right of the State of New South Wales acting through its various emanations, including the Department of Customer Service, the Department of Regional NSW, Revenue NSW and Service NSW

Personal Investment Vehicle means a product used by investors to gain positive returns. Examples include hedge funds, private real estate investments trusts and venture capital limited partnerships.

Reinstatement means the carrying out of activities that are necessary to help the business or not-for-profit organisation continue or resume operations at a similar level as before the 2022 Floods.

Superannuation Fund means a superannuation fund regulated by the Australian Prudential Regulation Authority and does not include a self-managed superannuation fund as defined in the Superannuation Industry (Supervision) Act 1993 (Cth).

Terms and Conditions means these Terms and Conditions for participation in the Program.

2.2. Unless the context requires otherwise:

(a) the singular includes the plural and vice versa,

(b) reference to a gender includes all genders,

(d) reference to 'including' and 'includes' and 'for example' is to read as if followed by 'without limitation';

(e) a reference to a NSW Government body or entity which has ceased to exist or has been replaced, reconstituted, amalgamated or merged, or other functions of which have become exercisable by any other person or body in its place, shall be taken to refer to the person or body established or constituted in its place by which its said functions have become exercisable;

(f) A reference to a statute, regulation, or other law (“Law”) will be deemed to extend to include a reference to all statutes, regulations, or other laws amending, consolidating or replacing that Law from time to time; and

(g) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning.

3. Application to receive a payment under the Program

3.1. An Applicant may apply for payments via the MyServiceNSW Business Profile within a MyServiceNSW Account.

3.2. Applications must be received before 11.59pm on 29 March 2024.

3.3. An application may be made by:

(a) an owner of a business (or a person authorised to apply on their behalf, provided evidence of such authority is supplied with the application); or

(b) a person authorised to apply on behalf of a not-for-profit organisation (provided evidence of such authority is supplied with the application).

3.4. Notwithstanding any other provision in these Terms and Conditions, the NSW Government may refuse to progress an application, or may reject an application, for any reason at the NSW Government’s sole discretion, including, but not limited to, that:

(a) in the opinion of the NSW Government, the Applicant does not meet the eligibility criteria in clause 4;

(b) the application seeks payment for expenses that are not Eligible Expenses within the meaning of clause 2;

(d) the conditions in clause 7.1 are not satisfied.

3.5. By applying to receive a payment under the Program in respect of a business or not-for-profit organisation, the Applicant:

(a) consents to the NSW Government disclosing information provided in the application, including any personal information provided in connection with an application, to State and Commonwealth government agencies for the purposes of administering, auditing or reporting on the Program;

(b) declares that it has obtained the consent of any person about whom personal information is provided, to provide that information to the NSW Government for the purposes of administering, auditing or reporting on the Program; and

(c) consents to the NSW Government contacting the Applicant’s insurance company (or companies) and disclosing information including insurer and policy number to the insurance company, to allow the confirmation or verification of entitlements or the outcome of any claims made in relation to the 2022 Floods.

3.6. Information provided by an Applicant in its application or otherwise in accordance with these Terms and Conditions must be true and correct. It is a serious offence to provide false or misleading information to a public authority.

4. Eligibility

4.1. Subject to clause 6, a business (other than a not-for-profit organisation) may be eligible for a payment under the Program provided that it:

(a) has an active Australian Business Number (ABN) and held that ABN, as at 4 August 2022 (if affected by declared disaster AGRN 1030) or as at 14 September 2022 (if affected by declared disaster AGRN 1034);

(b) employed between 21 and 199 full-time equivalent employees (inclusive based on 35 hours per week being the equivalent of 1 full-time employee) as at 4 August 2022 (if affected by declared disaster AGRN 1030) or 14 September 2022 (if affected by declared disaster AGRN 1034);

(c) is structured as a company, joint venture (but only one entity of the joint venture should be the lead Applicant and apply for the payment), partnership, or trust (but in the case of a trust, the Applicant must be the trustee of that trust);

(d) is located in the Defined Area or is located outside the Defined Area but operates part-time or on some regular basis within the Defined Area; and

(e) has suffered Direct Damage as a result of the 2022 Floods and has provided evidence of that damage in accordance with clause 5;

(f) is the person responsible for meeting the costs claimed in its application; and

(g) is intending to re-establish the business in the Defined Area.

4.2. Subject to clause 6, a not-for-profit organisation may be eligible for a payment provided that it:

(a) employed between 21 and 199 full-time equivalent employees (inclusive based on 35 hours per week being the equivalent of 1 full-time employee) as at 4 August 2022 (if affected by declared disaster AGRN 1030) or as at 14 September 2022 (if affected by declared disaster AGRN 1034);

(b) is either:

i. registered with the ACNC or an equivalent State regulatory body and was registered as at 4 August 2022 (if affected by declared disaster AGRN 1030) or as at 14 September 2022 (if affected by declared disaster AGRN 1034); or

ii. registered as an incorporated association or co-operative with Fair Trading NSW and was registered on or before 4 August 2022 (if affected by declared disaster AGRN 1030) or on or before 14 September 2022 (if affected by declared disaster AGRN 1034); or

iii. is deemed to be a not-for-profit organisation, in accordance with the current Australian Accounting Standards Board on or before 4 August 2022 (if affected by declared disaster AGRN 1030) or 14 September 2022 (if affected by declared disaster AGRN 1034);

(d) is located in the Defined Area or is located outside the Defined Area but operates part-time or on some regular basis within the Defined Area;

(e) has suffered Direct Damage as a result of the 2022 Floods and has provided evidence of that damage;

(f) is responsible for meeting the costs claimed in its application; and

(g) is intending to re-establish the not-for-profit organisation in the Defined Area.

4.3. Notwithstanding clauses 4.1 and 4.2, an Applicant is not eligible to receive a payment under the Program if:

(a) it has received a payment in respect of the same costs under a previous governmental assistance program including (but not limited to):

i. Northern Rivers Medium-Sized Business Grant;

ii. Storm and Flood Disaster Recovery Small Business Grant;

iii. Small Business Northern Flood Grant; or

iv. Special Disaster Grant – NSW flooding from August and September 2022; or

(b) it is:

i. a body corporate constituted under the Strata Schemes Management Act 2015 (NSW);

ii. a Farm Enterprise;

iii. a Superannuation Fund; or

iv. a Personal Investment Vehicle; or

(c) the payment is for costs which have already been paid by an insurer, or claimed under an applicable insurance policy, or are intended to be claimed under an applicable insurance policy.

4.4. An Applicant is not eligible to receive payment under the Program if it has previously received a payment under this Program or under a previous governmental assistance program, and:

(a) The NSW Government has sought to recover the whole or part of that previous payment as a debt due to the Crown pursuant to s. 5.7(3) of the GSF Act or otherwise, and

(b) the amount sought has not been repaid.

4.5. Notwithstanding clauses 4.1 and 4.2, where an Applicant operates through a trust structure, only the legal entity operating the business or not-for-profit organisation is eligible to apply to receive a payment under the Program. Any entity that receives a passive income from a business is ineligible.

5. Evidence requirements

5.1. When submitting an application for payment under the Program, an Applicant must provide evidence at the time of making an application of the Direct Damage to which the Eligible Expenses claimed relate, and must include:

(a) a list of the Direct Damage, which specifically itemises the Direct Damage; and

(b) photographic evidence of each aspect of the Direct Damage;

(d) proof of authority to make an application on behalf of the Applicant;

(e) proof of ownership of the premises or asset to which the Direct Damage relates which may include utility bills, certificate of insurance or copy of policy of insurance, supply invoices, registration papers or contractor licences;

(f) copies of any relevant insurance documents, including a certificate of insurance or copy of policy of insurance and determination of any relevant insurance claims.

5.2. In circumstances where the Direct Damage is unable to be photographed or other information (e.g. receipts) is not available, the Applicant may provide other appropriate evidence to prove Direct Damage. The NSW Government may consider or reject such other evidence in order to assess an Applicant’s eligibility and to determine an application at its sole discretion.

5.3. Any application for a payment greater than $25,000 must include Evidence of Payment at the time the application is made. Evidence of Payment for payments equal to or less than $25,000 may be required to be submitted after the application is made.

5.4. An Applicant may make more than one application for payment, and where the second or subsequent application(s) means that the total payment applied for exceeds $25,000, Evidence of Payment must be provided for all claims, including the first $25,000 applied for.

5.5. Notwithstanding any other provision in these Terms and Conditions, the NSW Government may require additional information, evidence or clarification from an Applicant (including from any other public entity or person). The NSW Government may consider such additional information, evidence or clarification to assess an Applicant’s eligibility and to determine an application at its sole discretion.

6. Alternative eligibility and evidence requirements

6.1. Notwithstanding any other provision in these Terms and Conditions, the NSW Government may determine that a business or not-for-profit organisation is eligible for a payment under the Program. Any such business or not-for-profit organisation that receives a payment under this Program must comply with these Terms and Conditions, except to the extent that any dispensation has expressly been given by the NSW Government.

7. Conditions for payment under the Program

7.1. All payments made under the Program are made on the condition that the Applicant complies with these Terms and Conditions including:

(a) the Applicant meets the eligibility criteria in clause 4.1 or 4.2 (as modified by clause 6, where applicable), and is not ineligible pursuant to clauses 4.3, 4.4 or 4.5;

(b) the application for payment complies with the evidence requirements in clause 5;

(c) the information provided by the Applicant in its application or any further request for information is true and correct, and no information provided by the Applicant in its application or in response to any further request for information is false or misleading;

(d) the Applicant only uses the payment/s to cover Eligible Expenses which are related to Direct Damage;

(e) the Applicant does not use the payment to cover any costs for which the Applicant has already received a payment under an insurance policy (however, an Applicant may use a payment received under the Program to cover the gap between costs covered by insurance and actual costs incurred);

(f) the Applicant does not use the payment to cover any costs for which the Applicant has received funding or assistance from any other government source or program or any donation in relation to the 2022 Floods;

(g) the Applicant does not use the payment for loss of income as a result of the 2022 Floods;

(h) if requested by the NSW Government, the Applicant provides Evidence of Payment of the Eligible Expenses for which a payment is sought or has been made under the Program.

(i) where the NSW Government advises the Applicant in writing that a specified amount has been paid under the Program:

i. as an overpayment; or

ii. otherwise in error;

the Applicant will repay that amount as directed within 28 days of it being so advised; and

(j) any application for a payment under the Program must be received before 11.59pm on 29 March 2024.

7.2. An Applicant must take all reasonable steps to ensure that the conditions in clause 7.1 are or have been satisfied at all relevant times.

7.3. Upon submission of an application, an Applicant declares that:

(a) to the best of its knowledge, the conditions in clause 7.1 are or have been satisfied at all relevant times, and

(b) it took and will take all reasonable steps to ensure that the conditions in clause 7.1 are satisfied.

7.4. Notwithstanding any other provision in these Terms and Conditions, the NSW Government may take civil and/or criminal action (where appropriate), including referral to NSW Police, where it reasonably suspects that the Applicant has failed to comply with the law or these Terms and Conditions.

7.5. An Applicant must notify the NSW Government (via Service NSW) immediately if it ceases to trade, can no longer meet the applicable eligibility criteria in clause 4, or can no longer comply with these Terms and Conditions.

7.6. An Applicant must retain all tax invoices, official receipts, bank statements, quotations and other relevant records that demonstrate how payments made under the Program have been applied by the Applicant for a period of at least 7 years after the payments received under the Program have been spent.

7.7. An Applicant may be audited or investigated by the NSW Government or its agents to determine its compliance with these Terms and Conditions, including an audit of tax invoices, official receipts, bank statements, quotations or other records. An Applicant must provide any information or documentation that is reasonably required for the purpose of any such audit or investigation.

7.8. An Applicant consents to being contacted by the NSW Government for a period of 24 months after receiving a payment under the Program for the purposes of reporting on and evaluating the Program. An Applicant agrees to provide any information that is reasonably required under this clause.

8. Payments

8.1. Once an application has been approved, an Applicant will receive a single payment credited to a valid bank account (which will be the bank account identified by the Applicant in its application). Where possible, the payment will be made within 10 business days of an approved application.

8.2. Payments made in accordance with this clause will be made as act of grace payments under section 5.7(1) of the GSF Act.

8.3. Payments made in accordance with this clause will be made by the Minister for Customer Service and Digital Government, or the Minister’s authorised delegate under s. 5.7(4) of the GSF Act.

8.4. The conditions in clause 7.1 are conditions imposed by the Minister for Customer Service and Digital Government or the Minister’s authorised delegate on the making of the payment under section 5.7(2) of the GSF Act.

9. Recovery of payments

9.1. If an Applicant has received a payment under the Program and the NSW Government is satisfied that the conditions in clause 7.1 have been contravened, the payment or part of the payment is recoverable on demand and may be recovered from the Applicant by the Crown, in a court of competent jurisdiction, as a debt due to the Crown pursuant to section 5.7(3) of the GSF Act.

10. Suspension or termination of the Program

10.1. Notwithstanding any other provision in these Terms and Conditions, the NSW Government reserves the right to suspend or terminate the entirety or any part of the Program at any time.

10.2. Any action taken to suspend or terminate the Program will be notified on the Service NSW website.

11. Limitation of Liability

11.1. To the extent permitted by law, the NSW Government (including its officers, employees and agents) will not be liable for any direct, indirect, incidental, special or consequential loss or damage or for any death, illness, personal injury, financial loss or property damage however caused (including by negligence) which may be suffered or incurred by a business, organisation or any person arising directly or indirectly out of or in any way connected with the Program, including:

(a) any decision to make or refuse to make a payment under the Program, including on the basis that funds are unavailable;

(b) any fraudulent application for payments made under the Program;

(d) any decision to suspend or terminate the entirety or any part of the Program.

12. Indemnity

12.1. An Applicant agrees to indemnify and keep indemnified the NSW Government (including its officers, employees and agents) from and against any liability or loss (including reasonable legal costs and expenses), which may be suffered or incurred by any of those indemnified by reason of or in connection with the business's or not-for-profit organisation’s participation in the Program.

13. Contact

13.1. Any enquiry or complaint is to be directed to Service NSW via Service NSW Centres or by calling 13 77 88.

14. General

14.1. Applicants are responsible for obtaining their own independent legal and financial advice regarding these Terms and Conditions.

15. Variation

15.1. The NSW Government reserves the right to amend, vary, delete or supplement these Terms and Conditions at any time.

15.2. These Terms and Conditions, as amended, varied, deleted or supplemented from time to time, apply to any future version of, or update to, the IT system that supports the delivery of the Program.

16. Waiver

16.1. Failure by the NSW Government to enforce any of their rights at any stage does not constitute a waiver of those rights.

17. Severability

17.1. If any term in these Terms and Conditions is prohibited, void, voidable, illegal or unenforceable for any reason whatsoever, then that part is severed from these Terms and Conditions but without affecting the continued operation of the remaining Terms and Conditions.

18. Governing Law

18.1. These Terms and Conditions shall be governed by and must be interpreted in accordance with the laws of NSW. Applicants and the NSW Government submit to the exclusive jurisdiction of the Courts of NSW and any Court competent to hear appeals from those Courts.

19. Survival

19.1. Clauses 9, 11 and 12 and any other clauses which, by their nature contain continuing obligations, will survive termination of these Terms and Conditions.

Last updated: 25 August 2023