Div 6Harsh and unconscionable terms

Division 6—Harsh and unconscionable terms 38—Harsh and unconscionable terms (1) This section applies to a contract entered into on or after 22 January 19871. (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carrying out this section. 1 22 January 1987 was the date of commencement of the corresponding section under the repealed Builders Licensing Act 1986.