New South Wales Consolidated Acts
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FRUSTRATED CONTRACTS ACT 1978 - SECT 5
(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.
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