BUILDING WORK CONTRACTORS ACT 1995 - SECT 38
BUILDING WORK CONTRACTORS ACT 1995 - SECT 38
38—Harsh and unconscionable terms
(1) This section
applies to a contract entered into on or after 22 January 1987 1 .
(2) If a term or
condition of a domestic building work contract is harsh or unconscionable or
such that a court of Equity would give relief, a party to the contract may
apply to the Magistrates Court for relief under this section.
(3) Relief may be
granted under this section by the Magistrates Court in proceedings under
subsection (2), or by any court in proceedings instituted before the
court for the enforcement of a domestic building work contract or for the
recovery of damages or other compensation for a breach of such a contract.
(4) The court may, in
granting relief—
(a)
avoid ab initio a term or condition of the domestic building work contract
against which relief is sought;
(b)
modify the terms or conditions of the contract in such manner as it considers
just;
(c)
order the repayment to a building owner of an amount paid by the
building owner under a term or condition that has been avoided or modified
under this section.
(5) The powers
conferred by this section are exercisable in relation to a contract despite
the discharge of the contract.
(6) If it appears to
the court that a person has, or may have, shared in the profits of, or has, or
may have, a beneficial interest in, the transaction in question, the person
may be joined as a party to the proceedings and the court may make such orders
against, or in respect of, the person as it considers just.
(7) The court may make
any other orders and directions that it considers necessary or expedient for
the purposes of effectually carrying out this section.
Note—
1 22 January 1987 was the date of commencement of
the corresponding section under the repealed Builders Licensing Act 1986
.