Alex is Sprintlaw’s co-founder and principal lawyer. Alex previously worked at a top-tier firm as a lawyer specialising in technology and media contracts, and founded a digital agency which he sold in 2015.
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When a deal goes off the rails, most business owners immediately think about “getting compensated.” But sometimes, money isn’t what you need.
If you’ve sold your business and the buyer refuses to complete, or you’ve agreed to buy specialist equipment that’s impossible to replace quickly, forcing the other side to actually do what they promised may be the only outcome that really protects you.
That’s where specific performance comes in. It’s not a remedy you automatically get, and it won’t be available in every dispute. But in the right case, it can be a powerful way to protect your commercial position.
In this guide, we’ll explain what specific performance is, when Australian courts will order it, how it compares to other remedies like damages, and what you can do (both now and if a dispute arises) to maximise your chances of getting the result your business needs.
What Is Specific Performance (And Is It An Equitable Remedy)?
Yes - specific performance is an equitable remedy. In plain terms, it’s a court order that requires a party to a contract to carry out their contractual obligations rather than just pay money for not doing so. Because it’s “equitable” (a branch of law focused on fairness), specific performance is discretionary. That means a court won’t automatically grant it just because you’ve shown a breach. You’ll need to convince the court that ordering performance is fair and practical in your situation. Specific performance is most commonly sought for contracts involving unique assets or outcomes that money can’t easily replace. Typical examples include the sale of land, the transfer of a business with specific goodwill, or one-off machinery or IP rights that are hard to source elsewhere on the same terms. By contrast, courts rarely order specific performance for personal services (like requiring someone to keep working for you) or for obligations that would require ongoing supervision by the court.When Will An Australian Court Order Specific Performance?
Courts look at the whole picture. While each case turns on its facts, these principles often guide whether specific performance is appropriate.1) Adequacy of damages
If money can put you in the position you would have been in had the contract been performed, a court may say that damages are adequate and refuse specific performance. But where your loss is hard to quantify (for example, loss of a unique site, critical goodwill, or timing-critical equipment), that can point toward specific performance.2) Certainty and completeness
The contract must be sufficiently clear so the court can tell exactly what to order. If the terms are too vague or essential parts are still to be agreed, specific performance is unlikely.3) Mutuality
Generally, the remedy should be available to both parties under the contract. If it would be unjust to bind the other party without similar enforceability against you, a court may hesitate.4) Practicality and supervision
Courts avoid orders that require constant supervision or minute-by-minute oversight. One-off transfers or discrete steps are more suitable than complex performance that would drag the court into long-term management.5) Conduct and fairness
Because it’s an equitable remedy, your own conduct matters. Delay, bad faith, or a failure to act reasonably can weigh against you. Acting promptly and keeping clean hands helps your case.6) Hardship and third-party impacts
If enforcing the contract would cause disproportionate hardship to the other party (beyond what they bargained for) or negatively affect third parties who aren’t part of the dispute, the court may refuse the order.Real-world examples
- Sale of business: Buyer refuses to complete after due diligence. If the business is unique and the price is fixed, an order to complete may be more appropriate than damages that can’t capture future goodwill loss.
- Commercial property: Vendor attempts to pull out of a sale of land. Courts frequently consider specific performance in land contracts because each property is unique.
- Specialist equipment: Supplier refuses to deliver customised machinery. If replacing it would take months and harm your operations, an order to deliver could be justified.
How Does Specific Performance Compare To Damages And Other Remedies?
Specific performance is one of several tools available when a contract fails. Understanding your options helps you choose the strategy with the best commercial outcome.Damages (compensation)
Damages are the most common remedy for a breach of contract. They’re awarded to put you in the position you would have been in if the contract had been performed, as far as money can do so. Damages can be fast and practical, but they may not cover everything. For example, some losses are excluded by contract, or are too remote to claim, or are contractually limited (e.g. caps or exclusions for consequential loss).Termination and rescission
Sometimes walking away is better, especially if the relationship has broken down or performance is no longer useful. Knowing the difference between rescission vs termination helps you avoid missteps that could undermine your rights. If you terminate wrongly, you could be the one in breach.Injunctions
Instead of compelling action, an injunction stops a party from doing something (for example, selling the asset to someone else while the dispute is resolved). An interim injunction can preserve the status quo while you pursue specific performance.Agreed remedies in your contract
Many well-drafted commercial contracts include mechanisms that help in a breach scenario - for example, liquidated damages, step-in rights, or clear notice and cure processes. The stronger and clearer your agreement, the better your position if you need to enforce it.Practical Steps If You Want Specific Performance
If you’re considering specific performance, timing and preparation matter. Here’s a practical roadmap.1) Move quickly and keep evidence
Act promptly once you suspect a breach. Keep clean, organised records of the contract, correspondence, performance to date, and any evidence showing why money won’t fix the problem (e.g. unique asset, critical timeline).2) Check the contract carefully
Look for conditions precedent, notice requirements, time-of-the-essence clauses, dispute resolution steps, and any limitations on remedies. A strategic review can clarify your strongest path - whether that’s pushing for performance, pursuing damages, or both. If terms need tweaking to preserve the relationship, consider whether a formal variation is appropriate and do it properly using a clear process for legally varying a contract.3) Send a clear, compliant notice
Issue a written notice that complies with the contract (including service provisions). Identify the breach, the required performance, and a reasonable timeframe to comply. This can set you up for court if needed and may be enough to prompt cooperation.4) Consider interim protections
If there’s a risk the other side will sell the asset or take steps that make performance impossible, urgent relief (like an interim injunction) can preserve your position while you progress the main claim.5) Use settlement tools wisely
Even when you’re aiming for specific performance, it’s smart to keep a negotiated outcome on the table. A well-drafted Deed of Settlement can lock in new obligations, timeframes and contingencies - and help you avoid further litigation costs if you manage to find middle ground.6) Be realistic about cost, time and risk
Specific performance proceedings can move quickly if urgency is clear, but they’re still litigation - there’s cost, uncertainty and court timetables to consider. Build this into your commercial decision-making and cash flow planning.Drafting Contracts To Improve Your Chances
You’ll put your business in a much stronger position if your contracts anticipate enforcement from day one. These drafting tips can make specific performance more achievable if things go wrong.Make the obligations clear and complete
Courts won’t enforce vague commitments. Define the key deliverables, specifications, timelines, and acceptance criteria with precision. If certain terms will be finalised later, set a clear mechanism for how and by when that happens.Use “time of the essence” only where you mean it
If timing is critical, say so expressly. This language signals that delays are a serious breach and supports the case for equitable relief - but don’t include it lightly if your operations can tolerate slippage.Preserve equitable relief
Some agreements include clauses stating that money alone may not be an adequate remedy and that the parties consent to equitable relief. While not determinative, these clauses can be persuasive and show the parties’ expectations about the remedy landscape.Protect against asset disposal
Include obligations not to sell or encumber a unique asset during the contract period, and to give notice if third parties assert rights. These provisions make it easier to seek injunctions that preserve your ability to obtain performance.Keep variation pathways tight
Many disputes arise because the parties adjust the deal informally. Require written variations signed by authorised representatives, and consider attaching a standard variation form. A disciplined process reduces the risk that promises become uncertain or unenforceable.Align your entire contract suite
Your customer-facing contract should sit neatly alongside your operational documents and finance arrangements. Having a robust Customer Contract or clear Terms of Trade supports consistent performance, simpler dispute notices and a stronger litigation footing if needed.Build dispute pathways that don’t weaken your rights
Dispute resolution clauses are useful, but make sure mandatory negotiation or mediation steps are short and workable so you can seek urgent equitable relief when necessary. Long deadlocks can let a counterparty run out the clock.Get a legal health check before signing
A fast, practical review can catch ambiguity and risk allocation issues early. A tailored contract review gives you confidence that your rights are enforceable - including your ability to seek specific performance if the worst happens.Common Scenarios Where Specific Performance Helps (And Doesn’t)
It’s useful to sanity-check the kinds of commercial situations where courts typically lean for or against specific performance.Where it often helps
- Sale of land and leases: Real property is unique, so courts regularly consider specific performance to compel completion.
- Sale of business: Where a particular business (with its brand, location and goodwill) is contracted for sale, money may not capture the value of the deal.
- Unique goods or IP rights: Custom equipment, limited-edition stock, or a licence on specific terms that you can’t readily replace.
Where it usually won’t be ordered
- Employment or personal services: Courts won’t force people to work or perform personal obligations
- Long-term supervision: If a court would need to monitor performance over months or years, it’s unlikely
- Uncertain agreements: If essential terms are unclear or “to be agreed,” the remedy won’t fit
Strategy if specific performance isn’t available
If a court isn’t likely to order performance, aim for alternative outcomes that still protect your business. That could mean targeted damages for lost profits (subject to any consequential loss wording), a negotiated re-scope captured in a Deed of Variation, or an agreed exit documented in a Deed of Settlement. If the relationship can be salvaged, correct any ambiguity via a careful variation rather than informal back-and-forth that muddies the contract.How This Fits With Your Broader Enforcement Toolkit
Specific performance sits alongside a broader set of business protections. The more deliberate you are with your contracts and processes, the easier it is to enforce your rights quickly.- Clarity on breach and process: Spell out breach notices, cure periods and consequences. This keeps everyone on the same page and supports equitable relief if timing is critical.
- Proportionate risk allocation: Use limitation of liability and exclusions thoughtfully so they don’t undermine your ability to get meaningful relief when needed.
- Exit rights you can actually use: Termination is powerful when you can pivot to an alternative supplier or buyer. Understand your termination position before a dispute flares.
- Prepare for breach: Keep a simple internal checklist for collecting evidence, issuing notices and escalating to mediation, then litigation if required. This dovetails with your approach to breach of contract.
Key Takeaways
- Specific performance is an equitable remedy that compels a party to perform their contractual obligations, typically used where money can’t fix the problem.
- Australian courts apply discretion - clarity of the contract, adequacy of damages, practicality and fairness all influence whether it’s ordered.
- If you’re aiming for specific performance, act quickly, preserve evidence, follow contractual notice steps and consider interim injunctions to preserve the status quo.
- Strong contracts make enforcement easier: precise deliverables, time-critical clauses, and aligned Terms of Trade or a robust Customer Contract all improve your position.
- Have a plan B: damages, injunctions, targeted variations and a well-structured Deed of Settlement can deliver commercial outcomes when performance isn’t realistic.
- A targeted contract review before you sign is the best time to set yourself up for enforcement success if things go wrong later.
