What is Frustration of Contract?

Construction contracts are legally binding agreements between homeowners and contractors that (amongst other things) outline the scope of work, timelines, payment schedules, and other essential terms and conditions. It is crucial to carefully review and understand these terms before signing the contract to avoid potential frustration.

Frustration of a contract occurs when an unforeseeable event or circumstance makes it impossible to fulfill the terms of the contract. In the context of construction contracts, events such as natural disasters, unexpected delays, or material shortages may result in the frustration of the contract. When frustration occurs, both parties may be released from their obligations under the contract.

For example, if a contractor is unable to complete the project due to a natural disaster, the homeowner may be released from their obligation to pay the full contract price. Similarly, if a homeowner fails to provide access to the property (for example, if the purchase of the property by the homeowner does not push through), the contractor may be released from their obligation to carry out the work.

Understanding the concept of frustration is crucial for both homeowners and contractors to avoid potential legal disputes. By recognising the circumstances that may lead to frustration, parties can better negotiate the terms of the contract and plan for potential delays or unforeseen events.

Factors That Determine Frustration of Construction Contracts

In NSW, courts will consider various factors when determining whether a construction contract has become frustrated. These factors include:

  • The nature of the event: The event must be something beyond the control of either party and not caused by their fault or negligence.
  • Foreseeability: The event must have been unforeseeable at the time the contract was signed.
  • Impact on contract obligations: The event must make it impossible or radically different to perform the obligations under the contract.

It’s important to distinguish between a frustrating event and an ordinary breach of contract.   If one party commits a breach of the contract, the breaching party becomes liable for damages to the innocent party.  On the other hand, if the contract is frustrated, no party is considered at fault and both parties are released from their obligations under the contract,  

Examples of events that may constitute frustration of contract include:

  • Force majeure events such as floods, earthquakes, or pandemics.
  • Unforeseeable delays caused by factors such as labour shortages or unexpected supply chain disruptions.

It’s important to note that frustration is a high bar to meet, and parties should take steps to plan for potential delays or unforeseen events when negotiating the terms of the contract. By anticipating potential issues, parties can better protect themselves from potential legal disputes down the line.

Implications of a Frustrated Contract

If a construction contract becomes frustrated, it will automatically terminate, and the parties will be released from their obligations under the contract. This means that any money paid by the homeowner to the contractor will be returned, and any work done by the contractor will be paid for at a reasonable price. However, the allocation of losses resulting from the termination can be complicated and will depend on the circumstances of the frustrating event.

It’s important to note that the doctrine of frustration only applies to obligations that could not be performed due to the frustrating event. Any obligations that were due to be performed before the event occurred will still need to be fulfilled.

Given the complexity of the legal doctrine of frustration, it’s essential to seek legal advice before claiming that a contract has become frustrated. A legal professional can help you navigate the legal implications of the event and determine the best course of action moving forward. By seeking legal advice, you can protect your interests and avoid potential legal disputes down the line.

Avoiding Construction Contract Frustrations

To avoid construction contract frustrations, homeowners should consider the following practical tips:

  • Conduct thorough due diligence before entering into a contract, including checking the contractor’s credentials, reputation, and previous work.
  • Clearly outline the scope of work and timelines in the contract, and ensure that both parties agree on the terms before signing.
  • Include a force majeure clause in the contract that outlines the parties’ rights and obligations in the event of unforeseen circumstances.
  • Communicate effectively with the contractor, including discussing potential issues and delays that may arise during the project.
  • Regularly review and update the contract as the project progresses to avoid potential misunderstandings.

By taking these steps, homeowners can reduce the likelihood of construction contract frustrations and protect themselves from potential legal disputes. It’s important to recognise that construction projects are complex, and issues may arise even with the best-laid plans. However, by working closely with the contractor and being proactive in managing potential issues, homeowners can minimise the impact of these frustrations and ensure a successful project outcome.

How an Expert Construction Lawyer Can Help

Seeking legal advice from an expert construction lawyer is crucial when dealing with construction contract frustrations. A construction lawyer can provide homeowners with a comprehensive understanding of their legal rights and obligations, and help navigate complex legal issues that may arise during the project.

An expert construction lawyer can assist homeowners in several ways, including:

  • Reviewing the contract to ensure that the terms are fair and reasonable.
  • Negotiating with the contractor to resolve potential issues and avoid legal disputes.
  • Representing the homeowner in legal disputes, including mediation, arbitration, and litigation.

It’s essential for homeowners in NSW to seek legal advice early on to avoid potential legal disputes and protect their interests. By working with an expert construction lawyer, homeowners can ensure that their rights are protected throughout the project and minimise the risk of costly legal disputes down the line.

Termination of Contract and Repudiation

The judge found that the builder’s abandonment of the works amounted to a repudiation of the contract. Repudiation occurs when one party demonstrates through their actions or words that they no longer intend to be bound by the terms of the contract. In this case, the builder’s abandonment of the works was a clear indication that they no longer intended to fulfil their obligations under the contract.


Understanding construction contracts and the potential risks of construction contract frustrations is crucial for homeowners in NSW. By taking proactive steps to avoid potential issues and seeking legal advice when necessary, homeowners can protect their interests and avoid costly legal disputes. It’s essential to carefully review and negotiate the terms of the contract, communicate effectively with the contractor, and regularly review and update the contract as the project progresses. By following these guidelines and working with an expert construction lawyer, homeowners can ensure a successful project outcome and minimise the impact of potential frustrations.