Specific performance in favour of a purchaser under a contract for the transfer of land - An analysis of the present Australian position
Faculty of Business and Law
School of Business
There are significant differences in judicial and academic opinion in Australia concerning the relevant principles to be applied to the grant of specific performance of contracts for the transfer of land. It has sometimes been suggested that the principles relating to specific performance have evolved to a rule that, because damages are not regarded as an adequate substitute for the transfer of land, which is regarded as unique, specific performance would invariably be decreed of such contracts. This article advances the proposition that, despite some academic and judicial opinion to the contrary, the balance of authority is such as to disavow the existence of such a rule; further, that such a rule did not, in fact, ever exist. Although there remains a predisposition in favour of the grant specific performance of contracts for the transfer of land, this is based upon the historical assumption that land was unique. With the advent of the recognition that land these days is frequently regarded as a mere article of commerce rather than as unique, the strength of this predisposition likewise has diminished. This article advances the further proposition that it is not, however, the uniqueness of land as such which determines the purchaser’s entitlement to specific performance; rather, that the enquiry should be as to whether specific performance should be granted because damages would not be adequate compensation for the transfer of the land. Such an enquiry, correctly performed, would simply reflect an application of first principles.