Western Australian Consolidated Acts Western Australian Consolidated Acts (1) Where an agreement
is made for the purposes of this Act between a person (the contractor )
and —
(a) the
Minister; or
(b) a
board or an agency board; or
(c) the
Minister for Works or the State Supply Commission acting on behalf of the
Minister, a board or an agency board,
the agreement may
include a performance bond.
(2) A performance bond
is a provision by which the contractor acknowledges that the contractor is
bound in a specified sum if the contractor fails to observe and perform the
terms, conditions and provisions of the agreement.
(3) The contractor is
liable to pay to the Minister, a board or an agency board as a debt the amount
of any such bond if the contractor fails to observe and perform the terms,
conditions and provisions of the agreement, and that debt may be recovered by
proceedings in a court of competent jurisdiction.
(4) In any proceedings
to recover an amount referred to in subsection (3) —
(a) the
amount is to be taken to be a genuine pre-estimate of the damage suffered and
recoverable by the Minister, the board or the agency board, as the case may
be, in respect of any non-observance or non-performance by the contractor; and
(b) the
contractor cannot plead and evidence is not admissible to show —
(i)
that the damage so suffered and recoverable was less than
that amount; or
(ii)
that the amount or any part of it is a penalty or penal
damages;
and
(c) the
amount cannot be reduced or called in question by the court.
(5) This section
applies notwithstanding any rule of law to the contrary.
(6) In
subsection (1) —
Minister for Works means the body corporate
created by section 5 of the Public Works Act 1902 ;
State Supply Commission means the body established
by section 4 of the State Supply Commission Act 1991 .
[Section 35C inserted by No. 17 of 1996
s. 12.]