Extension of time

Most Australian contracts follow the same basic steps. The contractor becomes aware of a delay, gives notice of the delay, then submits a written claim for an extension of time within a set period. The superintendent assesses the claim and grants the extension it considers reasonable, or rejects it with reasons.

A claim normally has to show three things. The delay was caused by a qualifying cause, it actually delayed the work on the critical path to practical completion, and the contractor gave the notices the contract requires. The date for practical completion moves by the extension granted, and liquidated damages are worked out from the new date.

For a deeper look, read Extensions of Time in Australian Construction: When to Claim, How to Prove It, What They Really Cost.

• Cause of delay. The event and the contract clause that makes it a qualifying cause, for example a variation, latent condition, inclement weather allowance or act of the principal.

• Dates. When the delay started, when it ended or is expected to end, and when you became aware of it.

• Critical path impact. A programme analysis showing how the event delayed practical completion, not just an activity with float.

• Mitigation. What you did to reduce the delay.

• Days claimed. The number of working or calendar days, matching how the contract counts time.

The time and progress clauses cover notice of delay, claims for extension of time, assessment and liquidated damages in one place.

• AS 4000-1997. Clause 34, Time and progress.

• AS 2124-1992. Clause 35, Time for commencement and practical completion. Subclause 35.5 deals with extensions of time.

• Your contract. Check the time limits for notices and claims, and whether the special conditions make them a condition precedent, meaning a late claim is barred.

A notice of delay and an extension of time claim are two separate steps, and many contracts require both. The notice of delay tells the superintendent that something is delaying, or is likely to delay, the works. It is usually due soon after the contractor becomes aware of the delay, and does not need a full analysis.

The extension of time claim comes later and sets out the cause, the effect on practical completion and the number of days claimed, with supporting programme analysis. Some contracts allow a claim to be updated while a delay is continuing.

Treat the notice as an early warning. Sending it promptly protects the right to claim, gives the principal a chance to respond, and starts the record you will rely on if the claim is disputed.

• Missing the time bar. Many amended contracts make on-time notice a condition precedent. A genuine delay can be lost on a late notice.

• Claiming non-critical delay. Delay to an activity with float does not usually delay practical completion.

• No contemporaneous records. Site diaries, weather records, directions and photos made at the time carry far more weight than a reconstruction months later.

• Forgetting delay costs. An EOT gives time, not money. Check whether the contract allows delay damages or costs and claim them separately.