Appendix I, Rule 2 Recoverability of overspill claims

Recoverability of overspill claims

2.1  Without prejudice to any other applicable limit, any Overspill Claim incurred by the Association shall not be recoverable from the Association in excess of the aggregate of

         (a)    that part of the Overspill Claim which is eligible for pooling under the Pooling Agreement but which, under the terms of the Pooling Agreement, is to be borne by the Association; and

         (b)   the maximum amount that the Association is able to recover from the other parties to the Pooling Agreement as their contributions to the Overspill Claim.

2.2  The aggregate amount referred to in Rule 2.1 shall be reduced to the extent that the Association can evidence

         (a)  that costs have been properly incurred by it in collecting or seeking to collect

                (i)    Overspill Calls levied to provide funds to pay that part of the Overspill Claim referred to in Rule 2.1 paragraph (a), or

                (ii)   the amount referred to in Rule 2.1 paragraph (b); or 

         (b)  that it is unable to collect an amount equal to that part of the Overspill Claim referred to in Rule 2.1 paragraph (a) which it had intended to pay out of the levy of Overspill Calls because any Overspill Calls so levied, or parts thereof, are not economically recoverable, provided that if, due to a change in circumstances, such amounts subsequently become economically recoverable, the aggregate amount referred to in Rule 2.1 shall be reinstated to that extent.

2.3  In evidencing the matters referred to in Rule 2.2 paragraph (b) the Association shall be required to show that

         (a)  it has levied Overspill Calls in respect of the Overspill Claim referred to in Rule 2.1 on all Members entered in the Association on the Overspill Claim Date in accordance with and in the maximum amounts permitted under Rule 5; and

         (b)  it has levied those Overspill Calls in a timely manner, has not released or otherwise waived a Member’s obligation to pay those calls and has taken all reasonable steps to recover those calls.