In Australia, the definition of liquidated injury applies to cases where, in the event of non-performance of a primary provision, an infringement of the first party or a benefit to the second party is imposed by a secondary security to the main provision (i.e., it should not be an offence).  The liquidated damage is a sum of money agreed between the parties at the time the contract is signed and which determines the damage that can be recovered in the event of a breach of contract. The amount must reflect the best estimate of actual harm when the parties sign the contract. These generally apply to a certain type of injury, and in construction it is often the failure to complete the work on time. The liquidation of the damage is a means of compensating for the breach of a contract. In many cases, indemnification clauses have been liquidated in real estate transactions and other contracts for which it is difficult to determine a certain amount in dollars due to changing circumstances. Since the amount is difficult to determine, the parties agree on a certain amount that must be paid if one of them does not meet the contractual terms. The purpose of this agreement is to ensure that the inability of one party to follow the contract does not unduly harm others and that the agreed amount is a reasonable estimate of the potential harm that an offence could cause. Liquidation clauses are insurance for both parties. Whoever violates the treaty knows in advance how much he owes the other party. Similarly, the other party may negotiate an amount that would adequately cover its loss without being brought to justice. However, the purpose of a liquidation clause is not to punish the infringing person.
From the owner`s point of view, this acts as a form of cheap insurance against your contractors. In the event of an infringement, the owner can immediately calculate the damage without bothering to prove the actual damage. Proof of actual damage can be a complex, time-consuming and costly process. As a general rule, the under-ownership or partial completion of part of the work results in the fact that these parts have been completed in practice and thus relieve the contractor of liability in the event of liquidated damage to these parts. The sanctions rule does not apply to many payments made under a contract. Three cases give some indication on this point. A very useful test is whether the amount should be paid as a primary obligation or whether it should be paid as an ancillary obligation, i.e. in the event of a breach of a primary obligation. If the first one, it won`t be a punishment. This suggests that the clause in question should, as far as possible, be regarded as a primary obligation and not as a remedy for an offence. This point relates to Makdessi with respect to two clauses, the first of which retained the payment of two last tranches of the purchase price and the second provided for the transfer of shares at a reduced price in the event of violation of various restrictive agreements.
After some debate (and in the event of a unanimous share transfer), the Supreme Court found that these clauses were primary obligations, as they constituted a price adjustment mechanism closely linked to the overall commercial objective of the agreement. At Associated British Ports -v- Ferryways NV5, the parties entered into an agreement to transfer cargo containers to a port.