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(b) That's not right. If a contract states that a specified sum of money will be payable as a penalty for a breach of contract, the courts will not enforce payment of that agreed sum. The courts will not enforce penalty clauses in contracts.

O'Dea v Allstates Leasing System (WA) Pty Ltd (1983) 152 CLR 359 .

But penalties must be distinguished from what are called 'liquidated damages'. Sometimes, at the time of contracting, the parties estimate what losses will be suffered if a particular breach of contract should occur. They insert a clause in their contract saying this amount will be payable if the breach actually occurs. As long as these 'liquidated damages' are a genuine pre-estimate of the likely losses, the courts will enforce payment, even if the losses actually suffered are more or less less than the agreed amount. In the present case, the $5,000 is clearly a penalty and will not be enforced against A.

The courts have also said that a sum payable is only a penalty if it is out of all proportion to the likely damage, or is extravagant, exorbitant or unconscionable.

Paciocco v Australia and New Zealand Banking Group Ltd [2016] HCA 28.