When domestic building disputes arise, most parties attempt to discuss and negotiate those issues to achieve a timely and commercial outcome. However, in Grech v Biltar Pty Ltd [2025] VSC 636, a landowner decided to apply to the Victorian Supreme Court for an order for specific performance. In building disputes, applications for specific performance are rare.
Author
Callum Ernikiolis, Senior Associate
Specific performance is an equitable remedy that requires a person to do a certain act in fulfilment of a promise.
In Grech v Biltar, the Court was asked to consider whether it was appropriate to compel a builder to carry out building work under a domestic building contract and related deed of settlement. KCL Law acted for the builder and successfully defended the claim.
The Fall Out
Nearing completion, the builder and the owner fell into dispute. The builder alleged there were unpaid invoices and that the owner was preventing access to the site. The owner alleged there were defects in the (yet to be completed) building work. To resolve this, the parties entered into a deed. By this deed, the parties were to jointly engage an expert to prepare a defects report and the builder would then fix those defects within 60 days. The builder did not rectify the defects within 60 days and requested an extension under the deed. The owner did not consent to that extension request.
Instead, the owner made an application to the Supreme Court of Victoria, seeking an order for specific performance – that the builder immediately fix all the defects in the defects report. Any failure to comply with such an order could leave the builder in contempt of court.
Strategic Response
Generally, courts will only compel a builder to carry out building work in exceptional circumstances, which include:
- The scope of work must be defined with sufficient clarity,
- Damages (money) must be an inadequate remedy for the owner, and
- The builder must be in possession of the land on which the work is to be done.
Even so, courts still have a prevailing discretion whether to make an order for specific performance.
KCL Law argued that none of these exceptions had been met. Importantly, KCL Law focused on the specific facts of the case, in which:
- this was a ‘stock standard’ domestic building dispute, where (as with most other building disputes) there was no reason why another builder could not complete the rectification work; and
- there was domestic building insurance, which (in the event of the builder’s insolvency) would indemnify the owner for the cost to rectify any defects up to the sum of $300,000.
The Decision
The Court dismissed the owner’s application and principally held that damages would be a sufficient remedy to protect the owner’s interests.
The Court also observed that the owner’s ‘improper behaviour’ and animosity between the parties was a relevant factor weighing against an order for specific performance.
Why This Matter for Builders
Parties should be mindful when litigating a dispute to exert tactical pressure. When a dispute arises, parties should almost always use their best endeavours to reach a proportionate and practical solution, to hopefully avoid the need for a court to intervene.
KCL Law’s approach reinforced that steady focus on the facts and the law can cut through even the most charged disputes. Builders facing escalating pressure and legal demands should seek early advice to maintain control of both the project and the dispute process.
Key Takeaway
Specific performance remains a rare and exceptional remedy in building cases.
For builders, the decision highlights the value of early, strategic legal guidance to keep disputes in proportion and prevent unnecessary escalation.
More information
If you would like to discuss this case or any other construction-related issues, please contact Callum Ernikiolis, Senior Associate on (03) 8600 0722 or cernikiolis@kcllaw.com.au.
This is a guide only and does not constitute legal advice.