Knowing when and how to terminate a contract is crucial for all business owners in Australia. Various reasons may justify the termination of a contract, such as breach by another party, frustration, mistake, and force majeure. However, terminating a contract is a serious step and may lead to unexpected and significant implications. Understanding the potential consequences, including liability for damages and ongoing rights and obligations, is essential. It is strongly recommended to seek legal advice before terminating any contract. A lawyer can evaluate the circumstances, review contract terms, and help you navigate the complexities to protect your interests and minimise potential risks.

Reasons to Terminate a Contract

Terminating a contract is a significant decision that should not be taken lightly. There are several circumstances under which a contract can be terminated in Australia. In all cases we strongly recommend seeking professional advice to understand your legal position and the implications of terminating a contract.

Breach of Essential Conditions

If one party fails to fulfil a fundamental obligation of the contract, known as an essential condition, the other party may have the right to terminate the contract. Breach can take various forms, such as non-payment, failure to deliver goods or services, or a substantial violation of agreed-upon terms.


Frustration occurs when an unforeseen event renders the contract impossible to perform or fundamentally changes the nature of the obligations. This could include situations like a fire destroying the subject matter of the contract or legislation being passed that renders the contract illegal.


If a mistake was made at the time the contract was formed, such as a mutual misunderstanding or a material misrepresentation, it may be possible to terminate the contract on that basis. However, the mistake must be significant and go to the heart of the contract.

Force Majeure

Force majeure refers to unforeseen events or circumstances that are beyond the control of the parties and make the performance of the contract impossible or significantly more difficult. The contract may contain a force majeure clause that outlines the specific events that qualify as force majeure and the consequences for non-performance.

Other Factors

Depending on the specific circumstances, there may be other factors that justify the termination of a contract, such as illegality, duress, undue influence, or a breach of good faith obligations. Each case should be assessed based on its individual merits and legal considerations.

Consequences of Termination

Understanding the consequences of termination is crucial before taking this step. The specific consequences will depend on the terms of the contract, applicable laws, and the circumstances surrounding the termination.

When the termination is legally justified, the party who terminates the contract may be entitled to restitution, which involves the return of any benefits provided under the contract. It is important to know that termination does not automatically extinguish the parties’ rights and obligations that accrued prior to termination. It is essential to consider any ongoing rights, such as intellectual property rights, confidentiality obligations, or non-compete clauses.

However, it is not always appropriate to terminate a contract simply because the other party does not fulfil their contractual obligations. The contract itself may contain specific provisions outlining the consequences of termination. It is crucial to review these clauses carefully to understand the rights and obligations of each party upon termination.

If a contract is terminated unlawfully, the terminating party may face serious consequences. Most seriously, the party terminating the contract may be liable for damages if the termination is deemed unjustified or in breach of contract. The innocent party may seek compensation for losses suffered as a result of the termination.

Seek Legal Advice

Considering the potential legal complexities and consequences involved, it is strongly advised to never terminate a contract without first seeking legal advice. You need to ensure that you are aware of your rights, obligations, and potential risks, so you can make informed decisions and take appropriate action. Terminating a contract without proper legal advice can lead to costly disputes, potential legal liability, and damage to business relationships.

A lawyer who specialises in contract law can provide valuable guidance tailored to your specific situation. A lawyer can assess the circumstances, review the contract terms, and advise on the most appropriate course of action, whether it be termination, negotiation, or dispute resolution.

This is general information only and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on 08 9221 6820 or email [email protected].