What is a deed of release, and should I sign one to get paid?
A deed of release is a document in which you give up claims, usually in exchange for final payment or the release of your retention. Signed as drafted, it can end every claim you have not already been paid for: unapproved variations, delay costs, disputed back-charges and sometimes the retention itself. The usual answer is not to refuse it but to narrow it: release only the amounts being paid, and list the claims that survive.
Why it turns up at the worst possible moment
Most subcontracts make final payment or retention release conditional on a release in a form the builder chooses. That form turns up at the end of the job, when the crew has moved on, the money is overdue and the pressure to sign is at its highest. The timing is the point: a subbie who needs the cash signs what is put in front of them.
The words that do the work are "releases and discharges", "all claims whatsoever", "known or unknown" and "arising out of or in connection with". Read together, they end every claim you have not already been paid for.
How to narrow it
Sign a release limited to the amounts actually being paid, with a schedule of excluded claims attached: open variations and delay claims listed by reference and amount, retention not yet released, amounts certified but unpaid, and defects obligations running both ways. Statutory rights that cannot be released should not be in it at all. Or settle the open items first, then sign.
Watch for the deemed release as well: a clause saying that once the date for the final claim passes, anything not claimed is released automatically. It does the same job as a deed and gives you no moment to read it.
Deal with it at tender, not at final claim
The release form is usually an annexure to the subcontract. Read it when you sign the contract and negotiate the carve-out then, while your leverage is highest and nobody is holding your money. The free carve-out wording below is written to be pasted straight into that conversation.
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Do I have to sign a deed of release to get my retention back?
Only if your subcontract makes it a condition, and many do. Check the release clause and the form annexed to it. Even where it is a condition, you can ask for a narrower form: a release limited to the amount being paid, with your open claims listed as excluded. Builders accept that more often than subbies expect, because the alternative is a dispute.
Can I sign a release and still claim a variation later?
If the release covers all claims, known or unknown, and the variation is not carved out, probably not. That is why the carve-out schedule matters: list every open claim by reference and amount before you sign.
Why is a release a deed and not a normal agreement?
A deed binds without anything being paid for it, which is why releases are drafted that way. It also means "I got nothing for it" is not an answer once it is signed.
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General information for Australian subcontractors, not legal advice. Statutory deadlines and details vary by state and change over time; verify them before relying on them. Written by Mat Kennedy at The Construction Contracts Co.