Specific Performance: Prove the Required Act

What Specific Performance Requires

Specific performance carries the contract into effect through an order directed to an obligation the defendant has undertaken. Damages compensate for loss. Termination ends future contractual performance, while rescission addresses setting aside and unwinding a transaction on an available legal basis.

Consider a fictional agreement for the transfer of a specialised commercial asset and its operating records. The buyer wants that particular asset delivered with the agreed documents. The seller refuses to complete. Establishing that refusal leaves further questions about the contract’s enforceability and whether money would adequately compensate the buyer.

A breach does not automatically produce an order for performance. In Fuller v Albert (No 3) [2021] NSWCA 226, the Court of Appeal declined specific performance after assessing practicability and discretionary considerations. It awarded damages in substitution. The existence of an enforceable agreement and the choice of relief require separate analysis.

Ask what the client needs from completion. If a comparable asset can readily be bought and the resulting loss measured, explain why damages would still fall short. If the asset has a particular commercial function that replacements cannot provide, support that claim with evidence of the function and available substitutes.

Identify the Promise and the Client’s Performance

Read the operative agreement and its variations to identify exactly who must perform each remaining act. A contract review can establish the relevant clauses before you build the performance chronology.

Record the asset description, execution requirements and delivery terms. Add conditions precedent, consent requirements and the agreed sequence of payment and transfer. Match each notice to its contractual power and evidence of service. A proposed order cannot cure an obligation that the defendant never assumed.

In Toma v Taylor Square TT Pty Ltd [2024] NSWCA 304, the Court of Appeal set aside specific-performance orders against a guarantor. Construction of the guarantee did not support requiring him to perform the purchasers’ principal obligations. Identify the contractual role before selecting the person against whom relief is sought.

For a buyer, separate an assertion of readiness from evidence of funds available for compliant completion. Obtain the account records and financing terms supporting the balance due. Explain any restrictions on the funds and any conditions still attached to a loan approval.

A Fictional Payment Reconciliation

Assume the asset price is $480,000, including an accepted $48,000 deposit, with no adjustments. The buyer must pay the remaining $432,000 against the agreed transfer documents.

Event	Amount	Independent record	What it establishes
Deposit accepted	$48,000	Buyer’s debit and stakeholder’s receipt	Payment of the contractual deposit
Balance available before completion	$432,000	Account statement and bank confirmation of available funds	Funds available at the relevant time, subject to any restrictions
Balance tendered and rejected	$432,000	Transfer instruction, receiving-bank record and rejection correspondence	Attempted payment and the stated reason for rejection
Tender returned	$432,000	Return credit matched to the original debit	The rejected transfer’s reversal, with no net payment of the balance

Reconcile the entries by amount and transaction reference. Retain the original statements alongside the receiving records. Counting both the tender and its return as separate available funds would overstate the buyer’s position.

The documents must also show whether the tender followed the contract. Money in the account cannot establish that a required consent exists or that the buyer tendered the correct documents.

FinTrace saves legal teams and forensic accountants hours of statement review by preparing a searchable ledger and a clear findings report. Source PDF filenames and pages put the supporting payment evidence directly at hand. The solicitor uses those factual records alongside the agreement and correspondence to assess readiness and select relief.

Assess Adequacy, Feasibility and Defences

Assess specific performance against the loss damages would address, the certainty of the obligation and the practical consequences of the proposed order. Keep the defendant’s objections beside the evidence that answers them.

In Fuller v Albert (No 3), the Court of Appeal considered delay and the effect on a development approval. Complexity in framing orders, likely ongoing supervision and the availability of alternative remedies also contributed to refusal. The decision shows why entitlement to contractual performance does not settle the court’s discretion.

Use the following checks to prepare the submissions.

• Explain why damages would be inadequate using the asset’s actual commercial characteristics and evidence about replacement.
• Identify a sufficiently certain obligation. Separate agreed terms from matters the parties still need to negotiate.
• Show how the defendant can perform. Address necessary third-party consent and any act outside the defendant’s control.
• Answer alleged hardship, delay and conduct said to make relief inequitable with the relevant chronology and supporting documents.
• Prove the client’s readiness and willingness to perform the obligations required of it. Explain any alleged default and its contractual consequence.

In Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57, funds arrived after an essential completion time. The High Court dismissed the purchaser’s appeal. Later availability of money did not itself overcome the termination and establish an equitable basis for relief.

The Court of Appeal’s summary of Akrawe v Culjak likewise records a notice to complete that remained operative during negotiations about a substituted purchaser. The appeal against the finding of valid termination failed. Test the effect of negotiations against the actual communications instead of assuming they suspended existing requirements.

In the fictional asset transfer, a fully funded buyer still needs to answer an objection that the required operating consent remains outstanding. Identify whether the agreement requires consent before completion, who must obtain it and whether the condition has been satisfied or validly waived.

Prepare an Order That Can Be Performed

Prepare the claim and proposed orders around the exact act sought and the steps necessary to perform it. The NSW Courts commencement guidance identifies a summons or statement of claim prepared under the court rules. Select the process and Equity Division list that fit the claim’s issues and applicable rules.

The Supreme Court’s general jurisdiction is in section 23 of the Supreme Court Act 1970 (NSW). Section 68 permits damages in addition to or substitution for specific performance where its conditions are met. Plead any alternative monetary relief on its proper basis.

Build the application in execution order.

1. Identify the agreement and operative terms in the originating process or pleadings. State the obligation sought to be enforced and the facts supporting relief.
2. Put forward affidavit evidence from witnesses with knowledge of the agreement, notices and attempted completion. Exhibit the relevant documents and the reconciled payment records.
3. Address adequacy of damages and discretionary objections in submissions. Connect each proposed act to the relevant contractual obligation.
4. Provide a minute identifying the responsible parties, documents and compliance time. Specify which acts occur first and which must occur concurrently.

Compare these two fictional drafting approaches.

Drafting approach	Proposed requirement	Practical consequence
Vague demand	Complete the asset sale within seven days	Leaves the required documents, tender arrangements and reciprocal steps unresolved
Defined sequence	By the specified compliance time, the seller executes the scheduled transfer and delivers the listed operating records against the buyer’s payment of $432,000	Identifies the acts, documents and concurrent payment obligation for the court to assess

The defined version still depends on the actual agreement and evidence. If third-party consent is required first, address that dependency expressly. Frame further directions or liberty to apply for the court’s consideration where needed to carry the order into effect.

If the asset needs interim protection, assess injunctions through the appropriate separate application. An application for final contractual performance does not itself restrain disposal pending judgment.

Verify Performance and the Next Remedy

Verify each act required by the entered order against independent completion documents. Read the entered terms, including conditions and any later variations, before treating the transaction as completed.

For the fictional sale, match the executed transfer to the scheduled asset and the person authorised to sign. Confirm delivery of the listed records. Reconcile the $432,000 payment to the receiving record and check whether the agreed concurrent exchange occurred.

A debit alone does not establish receipt. A returned payment leaves a different performance position from an accepted payment. If the seller delivers only part of the records, identify the outstanding item and the order term it affects.

Record the missed obligation and the evidence of non-compliance before advising on enforcement or further relief. Where the decree remains in place, address the court’s control of its implementation. Georges v Wieland [2010] NSWSC 1378 explains the distinction between working out an existing order and seeking substantially different substantive relief.

If performance has failed, prepare the appropriate application for enforcement, further directions or discharge of the decree and alternative relief. Reconcile money already paid or returned so the proposed remedy reflects the actual position. A failed completion does not automatically convert a specific-performance order into a damages judgment.