This Act may be cited as the Frustrated Contracts Act 1978.
(1) This section and section 1 shall commence on the date of assent to this Act.(2) Except as provided in subsection (1), this Act shall commence on such day as may be appointed by the Governor in respect thereof and as may be notified by proclamation published in the Gazette.
This Act binds the Crown, not only in right of New South Wales but also, so far as the legislative power of Parliament permits, the Crown in all its other capacities.
(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.
6 Act does not apply to certain contracts
(1) This Act:(a) does not apply to a contract made before the commencement of this Act,(b) does not apply to a charter-party, except a time charter-party and except a charter-party by way of demise,(c) does not apply to a contract (other than a charter-party) for the carriage of goods by sea,(d) does not apply to a contract of insurance, and(e) does not apply to any other contract in so far as the parties thereto have agreed that this Act does not apply to the contract.(2) This Act does not apply to a contract embodied in or constituted by the memorandum or articles of association or rules or other instrument or agreement constituting, or regulating the affairs of, any of the following bodies:(a) a company within the meaning of the Corporations Act 2001 of the Commonwealth,(b) a registrable body within the meaning of the Corporations Act 2001 of the Commonwealth,(c) a society registered under the Co-operatives Act 1992, the Friendly Societies Act 1989, the Financial Institutions (NSW) Code or the Co-operative Housing and Starr-Bowkett Societies Act 1998,(d) an association registered under the Associations Incorporation Act 2009,(e) an industrial organisation within the meaning of the Industrial Relations Act 1996 that is a State organisation incorporated under that Act,(f) a partnership within the meaning of the Partnership Act 1892, or(g) any association which, on a proper case arising, is liable to be wound up or dissolved by order of the Supreme Court of New South Wales,in any case in which the circumstances alleged to give rise to frustration of the contract furnish a case for the winding up or dissolution of the body.(3) Where a contract is severable into parts and one or more but not all parts are frustrated, this Act does not apply to the part or parts not frustrated.