Can a subcontractor obtain release of retention before main-contract defects are completed?
A subcontractor that has completed its own correction work is not automatically entitled to early release if the subcontract makes release conditional on a main-contract certificate. The wording and the reason for any delay must be examined.
The contractual release condition ordinarily applies unless the contractor has prevented or wrongfully delayed its fulfilment
Under the wording considered in Pitchmastic v Birse Construction, retention remained held while main-contract defects were being corrected with reasonable diligence, even though the subcontract work was defect-free. Mere delay caused by other defects was insufficient. A different result may arise where the contractor is not progressing correction, obstructs certification, waives the condition or the subcontract contains an independent long-stop or package-specific release mechanism. Current payment legislation and amendments must also be checked.
| Issue | Position |
|---|---|
| Subcontract work defect-free | Not necessarily enough for release |
| Main-contract certificate outstanding | Apply the stated release condition |
| Correction proceeding diligently | Retention may remain held |
| Contractor prevention or default | May support a release argument |
| Long-stop or separate test | Apply if the subcontract provides one |
The rest of this solution is for members
Fifty of the two hundred contractual solutions are free to read. This is one of the remaining hundred and fifty, which Premium and Pro carry.
See what Premium includesAlready a member? Sign in