New South Wales Consolidated Acts

FRUSTRATED CONTRACTS ACT 1978 - SECT 5

5 Interpretation

(1) In this Act, except to the extent that the context or subject-matter otherwise indicates or requires:

"agreed return" , in relation to performance of a contract by a party, means such performance of the contract by another party as is contemplated by the contract as consideration for the first-mentioned performance.

"court" , in relation to any matter, means the court or arbitrator before whom the matter falls to be determined.

"frustration" includes avoidance of an agreement under section 12 of the Sale of Goods Act 1923 .

"party" includes the assigns of a party.

"performance" , in relation to a contract, means:

(a) performance, wholly or in part, of a promise in the contract, or

(b) fulfilment, wholly or in part, of a condition of or in the contract.

(2) Where performance of a contract is referred to in a provision of this Act:

(a) a reference in the provision to the performing party is a reference to the party to the contract by whom the performance was, or was intended to be, given, and

(b) a reference in the provision to the other party to the contract is a reference to the party by whom performance of the contract is contemplated by the contract as consideration for the performance referred to in the provision.

(3) For the purposes of this Act, performance of a contract is given and received if received as contemplated by the contract, whether received by a party to the contract or not.

(4) For the purposes of this Act, where a contract has been frustrated and a thing is done or suffered under the contract after the time of frustration but before the party who does or suffers that thing knows or ought to know of the circumstances (whether matters of fact or law) giving rise to the frustration, that thing has effect as if done or suffered before the time of frustration.

(5) It is the intention of Parliament that, except to the extent that the parties to a contract otherwise agree, a court other than a court of New South Wales may exercise the powers given to a court by Part 3 in relation to the contract.