An appellate court should exercise restraint before interfering with a trial judge's determination that a contract is or is not unjust under the Contracts Review Act 1980 (NSW), but a discretion to grant or refuse relief will miscarry where it is based on a factual misapprehension as to the evidence. Section 16(c) of the Contracts Review Act is not confined to applications for relief made in the maintainable proceedings themselves but extends to applications in separate proceedings commenced during the pendency of maintainable proceedings. Orders entering judgment on a cross-claim 'without regard to' specified defences, coupled with a direction that those defences be brought to trial by separate action, preserve the right to pursue those defences in fresh proceedings and do not give rise to res judicata or issue estoppel.
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