Contracts Review Act 1980

This Act may be cited as the Contracts Review Act 1980.

This section and section 1 shall commence on the date of assent to this Act.

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.

In this Act, except in so far as the context or subject-matter otherwise indicates or requires—

Court means—

the Supreme Court of New South Wales, or

in accordance with section 134B of the District Court Act 1973, and without affecting the jurisdictional limitations referred to in that section, the District Court of New South Wales, or

in accordance with section 32 of the Local Court Act 2007, and without affecting the jurisdictional limitations referred to in that section, the Local Court, or

in accordance with section 89D of the Home Building Act 1989, and without affecting the jurisdictional limitations referred to in that section, the Tribunal, or

in accordance with section 123 of the Retirement Villages Act 1999, and without affecting the jurisdictional limitations referred to in that section, the Tribunal.

land instrument means an instrument that transfers title to land, creates an estate or interest in land or is a dealing within the meaning of the Real Property Act 1900.

Tribunal means the Civil and Administrative Tribunal.

unjust includes unconscionable, harsh or oppressive, and injustice shall be construed in a corresponding manner.

Note—

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

A reference in this Act to a corporation does not include a reference to—

an owners corporation constituted under the Strata Schemes Management Act 2015, or

a community association, precinct association or neighbourhood association under the Community Land Management Act 2021, or

a corporation owning an interest in land and having a memorandum or articles of association conferring on owners of shares in the corporation the right to occupy certain parts of a building erected on that land,

all or the majority of which lots or parts, as the case may be, are intended to be occupied as dwellings.

Notes included in this Act do not form part of this Act.

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.

The Crown, a public or local authority or a corporation may not be granted relief under this Act.

A person may not be granted relief under this Act in relation to a contract so far as the contract was entered into in the course of or for the purpose of a trade, business or profession carried on by the person or proposed to be carried on by the person, other than a farming undertaking (including, but not limited to, an agricultural, pastoral, horticultural, orcharding or viticultural undertaking) carried on by the person or proposed to be carried on by the person wholly or principally in New South Wales.

Where the Court finds a contract or a provision of a contract to have been unjust in the circumstances relating to the contract at the time it was made, the Court may, if it considers it just to do so, and for the purpose of avoiding as far as practicable an unjust consequence or result, do any one or more of the following—

it may decide to refuse to enforce any or all of the provisions of the contract,

it may make an order declaring the contract void, in whole or in part,

it may make an order varying, in whole or in part, any provision of the contract,

it may, in relation to a land instrument, make an order for or with respect to requiring the execution of an instrument that—

varies, or has the effect of varying, the provisions of the land instrument, or

terminates or otherwise affects, or has the effect of terminating or otherwise affecting, the operation or effect of the land instrument.

Where the Court makes an order under subsection (1) (b) or (c), the declaration or variation shall have effect as from the time when the contract was made or (as to the whole or any part or parts of the contract) from some other time or times as specified in the order.

The operation of this section is subject to the provisions of section 19.

Schedule 1 has effect with respect to the ancillary relief that may be granted by the Court in relation to an application for relief under this Act.

In determining whether a contract or a provision of a contract is unjust in the circumstances relating to the contract at the time it was made, the Court shall have regard to the public interest and to all the circumstances of the case, including such consequences or results as those arising in the event of—

compliance with any or all of the provisions of the contract, or

non-compliance with, or contravention of, any or all of the provisions of the contract.

Without in any way affecting the generality of subsection (1), the matters to which the Court shall have regard shall, to the extent that they are relevant to the circumstances, include the following—

whether or not there was any material inequality in bargaining power between the parties to the contract,

whether or not prior to or at the time the contract was made its provisions were the subject of negotiation,

whether or not it was reasonably practicable for the party seeking relief under this Act to negotiate for the alteration of or to reject any of the provisions of the contract,

whether or not any provisions of the contract impose conditions which are unreasonably difficult to comply with or not reasonably necessary for the protection of the legitimate interests of any party to the contract,

whether or not—

any party to the contract (other than a corporation) was not reasonably able to protect his or her interests, or

any person who represented any of the parties to the contract was not reasonably able to protect the interests of any party whom he or she represented,

because of his or her age or the state of his or her physical or mental capacity,

the relative economic circumstances, educational background and literacy of—

the parties to the contract (other than a corporation), and

any person who represented any of the parties to the contract,

where the contract is wholly or partly in writing, the physical form of the contract, and the intelligibility of the language in which it is expressed,

whether or not and when independent legal or other expert advice was obtained by the party seeking relief under this Act,

the extent (if any) to which the provisions of the contract and their legal and practical effect were accurately explained by any person to the party seeking relief under this Act, and whether or not that party understood the provisions and their effect,

whether any undue influence, unfair pressure or unfair tactics were exerted on or used against the party seeking relief under this Act—

by any other party to the contract,

by any person acting or appearing or purporting to act for or on behalf of any other party to the contract, or

by any person to the knowledge (at the time the contract was made) of any other party to the contract or of any person acting or appearing or purporting to act for or on behalf of any other party to the contract,

the conduct of the parties to the proceedings in relation to similar contracts or courses of dealing to which any of them has been a party, and

the commercial or other setting, purpose and effect of the contract.

For the purposes of subsection (2), a person shall be deemed to have represented a party to a contract if the person represented the party, or assisted the party to a significant degree, in negotiations prior to or at the time the contract was made.

In determining whether a contract or a provision of a contract is unjust, the Court shall not have regard to any injustice arising from circumstances that were not reasonably foreseeable at the time the contract was made.

In determining whether it is just to grant relief in respect of a contract or a provision of a contract that is found to be unjust, the Court may have regard to the conduct of the parties to the proceedings in relation to the performance of the contract since it was made.

Where the Supreme Court is satisfied, on the application of the Minister or the Attorney General, or both, that a person has embarked, or is likely to embark, on a course of conduct leading to the formation of unjust contracts, it may, by order, prescribe or otherwise restrict, the terms upon which that person may enter into contracts of a specified class.

The Court may exercise its powers under this Act in relation to a contract on application made to it in accordance with rules of court, whether in—

proceedings commenced under subsection (2) in relation to the contract, or

other proceedings arising out of or in relation to the contract.

Proceedings may be commenced in the Court for the purpose of obtaining relief under this Act in relation to a contract.

Where in proceedings for relief under this Act in relation to a contract it appears to the Court that a person who is not a party to the contract has shared in, or is entitled to share in, benefits derived or to be derived from the contract, it may make such orders against or in favour of that person as may be just in the circumstances.

The Court shall not exercise its powers under this Act in relation to a contract unless it is satisfied—

that the exercise of those powers would not prejudice the rights of a person who is not a party to the contract, or

that, if any such rights would be so prejudiced, it would not be unjust in all the circumstances to exercise those powers,

but this subsection does not apply in relation to such a person if the Court has given the person an opportunity to appear and be heard in the proceedings.