Deed of Variation in Australia: How to Change a Contract After Signing

A deed of variation is a signed document that changes an agreement you have already made, without tearing it up and starting again. It names the original agreement, lists each clause that changes, says when the changes start, and confirms that everything else stays the same. Every party to the original agreement signs it, and it is kept with the original.

Claim Done drafts a Deed of Variation from your answers for a flat A$49, with a schedule of the changes and signing blocks for a company or a person.

When a deed of variation is used

A variation is simply a change to a contract that is already in place: lower loan repayments, a new price or end date in a supply contract, or an updated clause in a partnership agreement. Every party must already have agreed the change. A deed of variation records an agreement. It cannot force a change on anyone.

The government’s small business site, business.gov.au, says contractors and hirers can make changes verbally, but it is best to put them in writing and have both parties sign. It also says a court can enforce a variation that both parties agreed to.

Deed or agreement: what is the difference

You can record a change in an ordinary signed agreement or in a deed. A deed is a more formal document with its own signing rules. A legal briefing from the Australian Government Solicitor lists some features of deeds:

• A deed is valid without needing to show that consideration (something of value given in return) was provided. That helps when one side gives something up and gets nothing new back.
• The time limit for enforcing rights under a deed is longer than under a contract.
• A deed may bind each party as soon as that party signs and delivers its copy, even before the other party signs.

The same briefing warns that a document that is not executed correctly may not be binding, although a failed deed may still be enforceable as a contract if it meets the rules for a contract. That is why the signing page matters so much.

Check the original agreement first

Before you write anything, read the original agreement for a variation clause. A variation clause sets out when and how the parties can change the contract. It may say changes must be in writing, signed by every party, or proposed in a set way. If your agreement has one, follow it, and say in the deed that you are following it.

Also check that a deed of variation suits your type of agreement. Some agreements have their own rules:

• Residential tenancies. In New South Wales, NSW Fair Trading says every residential tenancy agreement must contain standard terms that cannot be changed or removed. Additional terms can be added later if both agree, but terms the law does not allow are invalid. Other States have their own rules, so check with your State’s tenancy regulator, such as Consumer Affairs Victoria or the Residential Tenancies Authority in Queensland.
• Loans with a lender. If you cannot keep up with a loan, Moneysmart says that when you ask for help, your lender must consider you for financial hardship assistance, and an arrangement can be permanent, like varying a loan. Start by asking your lender.
• Building work. For building and construction work, business.gov.au says to check your State or Territory’s rules for contract variations.

Claim Done does not prepare a variation of a residential tenancy agreement, an employment contract, a lease registered on the title, a will, trust deed or self-managed super fund deed, a home building contract, a consumer credit contract or mortgage with a lender, or a financial or child support agreement under the Family Law Act.

What a deed of variation should say

business.gov.au says a separate variation document should include the date of the original contract, the names of the parties, the agreed changes and any other important details, and that all parties sign and date it. In practice, a clear deed of variation covers:

1. The original agreement, by its exact title and date, and any earlier variations.
2. Every party, with full names exactly as in the original (a company with its ACN).
3. Each change, clause by clause: the clause number, what it says now and what it will say.
4. The date the changes take effect: the day the last party signs, or a set date.
5. That everything not changed stays the same, and the original and the deed are read together.
6. Any payment for the change: who pays whom, how much and by when.
7. Any guarantor’s consent and confirmation that the guarantee still applies.
8. A signing page for each party, set out as a deed.

The structure of the document

This is the outline Claim Done’s Deed of Variation follows.

• Date. The deed is dated the day the last party signs.
• Parties. Each party by full name, with the short name the agreement uses (for example “the Borrower”).
• Background. The agreement and its date, earlier variations, the variation clause (quoted, if any), and that the parties agree to vary it.
• Definitions. The Agreement, the Effective Date and the Schedule.
• Variation. From the Effective Date the agreement is varied as set out in Schedule 1.
• No other changes. The rest of the agreement continues, and the two are read together.
• Other parties, payment and other agreed terms. Only where they apply.
• Costs and general. Each party pays its own costs; governing law; signing in counterparts.
• Executed as a deed. The signing blocks.
• Schedule 1. A table: number, clause, what it says now, what it is varied to.

The deed does not deal with stamp duty, GST or other tax. If that could apply to your agreement, check before you sign.

Signing and witnessing

For a company, the Australian Government Solicitor briefing says that under s 127(1) of the Corporations Act 2001 a company can sign by two directors, a director and a company secretary, or a proprietary company’s sole director who is also the secretary or where there is no secretary. Under s 127(3A), a company can execute a deed without a witness, on paper or electronically.

For a person signing, the rules differ by State. Except for Queensland, the rows below come from the Australian Government Solicitor briefing, revised in July 2024. We have not checked them against each State’s current Act, so treat them as a guide, not as confirmed current law.

The briefing says that, as best practice, a witness should be used in all cases. Claim Done’s deed has a witness block for each person, with a witness who is not a party. Laws change, so check the current Act on your State or Territory’s official legislation website before you sign.

Exchanging and keeping the deed

Legal Aid NSW explains that a deed of release is often executed by exchange: each party gives its signed copy to the other, and each copy should be exactly the same. business.gov.au suggests attaching the variation to the existing contract, so keep your signed copy with the original.

If the other side will not sign or later disputes it

Until every party signs, there is no signed record of the change. If someone hesitates, send them the draft and its schedule. If a party later disputes the change, the signed deed is your record. If you are unsure about the signing page, Legal Aid NSW suggests getting legal advice.

Mistakes to avoid

• Ignoring the original agreement’s variation clause.
• Describing a change loosely (“payments will be lower”) instead of quoting the clause and the new amount and date.
• Leaving out a party, such as a guarantor or a second borrower.
• Only one director signing for a company that needs two.
• Acting on the change before every party has signed.

If both sides have agreed the change and you want it written down properly, start your Deed of Variation for A$49. You review it, then every party signs.