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    Scope Creep & Deposit Disputes

    3 min read·Reviewed June 2026
    By Scott JonesFirst published 6 June 2026
    Contracts & Disputes
    Australia-wide

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    Two of the most common ways a residential job turns into a fight: the deposit (can you keep it if they pull out?) and scope creep (who pays when the job grows?). Here is where you stand on both — and the contract clauses that get struck down if you over-reach.‍‌​‌​​‌‌‌‌​‌‌‌‌​‌‌​​‌‌‌​‌‌‌​‌​‌‍

    How much deposit you can take

    • NSW: 10%
    • VIC: 10% (under $20,000) / 5% ($20,000+)
    • QLD: 20% (up to $3,300) / 10% ($3,301–$19,999) / 5% ($20,000+)
    • SA: $1,000 (up to $20,000) or 5% (over $20,000) — not 10%
    • WA: large upfront deposits restricted before substantial work or materials

    Taking more than the cap is an offence — see the Deposit Caps & Home Warranty card.

    Can you keep the deposit if the owner pulls out?

    A tribunal treats a deposit as security for your genuine pre-construction costs and loss of bargain — not a windfall or a penalty:

    • Owner lawfully terminates (your breach): they usually get a refund (whole or part), less your proven reasonable costs.
    • Owner wrongfully pulls out ("changed their mind"): you can often keep some or all — but only to cover real costs (estimating, design, approvals, admin) and provable lost profit, where the contract clearly allows it.
    • A "non-refundable in all circumstances" clause is tested against the penalties doctrine and unfair-terms law — if it is out of proportion to your actual loss, it is read down and the excess refunded.

    So to keep a deposit, prove the costs. Bare "non-refundable" wording is increasingly risky.

    Scope creep — who pays when the job grows

    The classic standoff: the owner says items "should have been included"; you say the extra requests are variations. How tribunals lean:

    • A strong preference for written, signed, priced variations — they are reluctant to award extra without compelling evidence of agreement, which is exactly why getting variations in writing matters so much.
    • Where the owner clearly requested and received a benefit that was not documented, you might recover a reasonable amount on quantum meruit — but usually less than if you had papered it properly.
    • Ambiguities in the original scope are read against the drafter (you) under consumer-law principles.

    Bottom line: undocumented extra work is you gambling on tribunal recovery. Paper every variation.

    The contract clauses that get struck down

    Unfair-terms law (the same regime in Residential Contracts & the ACL) routinely reads down or voids: one-sided termination rights; non-refundable deposits or excessive cancellation fees (especially early, when little work is done); unilateral price/material/timeline change powers; clauses excluding statutory warranties; broad "entire agreement / no reliance" wording; and unreasonably short defect or variation time bars. Safer drafting: tie any retained deposit to demonstrable costs plus lost profit (a simple formula), use a clear bilateral written variation process, mirror the statutory rights, and explain the big clauses in plain English.

    Common mistakes

    • A blanket non-refundable deposit with no link to actual loss.
    • Doing undocumented extras and hoping the tribunal pays you.
    • Over-reaching boilerplate that gets read down anyway.

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