Time has become an increasingly common theme in construction
disputes in Australia.
At some stage, most participants in the construction industry
will encounter a dispute about a time limit. Judges of the
Queensland Courts are giving clear warnings to be wary of time
restrictions, whatever their form.
Generally, there are three key timeframes and time limits to be
mindful of when performing construction work. These are:
CONTRACTUAL NOTICE PERIODS
Time bar provisions in construction contracts are extremely
common. They usually operate to require a party
("Party A") to give notice to the other
party ("Party B") of an event (eg
possible delay in reaching practical completion by the date for
practical completion) within a stipulated time period. The Notice
is usually a precondition to Party A having any further rights in
respect of the matter for which notice is required (eg claim an
extension of time ("EOT") or delay
In CMA Assets Pty Ltd v John Holland [No 6], CMA was
prevented from claiming an EOT because its notices of possible
delay required under its construction contract with John Holland
("JH") were issued out of time. Despite
finding that JH was responsible for various delays, the court
ultimately found that JH was entitled to reject CMA's EOT claim
because it had failed to comply with the clear terms of the
While the timeframes can vary between the construction contract
and BCIPA, the BCIPA timing is more critical to a successful
Missing a date could mean losing a right to make a payment claim
on a particular date or, for contractors, becoming liable for the
full sum of a payment claim which may not in fact be payable
(whether due to defects or the work not having been completed).
If your contract was entered into before 10 October 2014, and
structural defects become evident, then a complaint must be made
within 3 months of noticing the defect (that appears within 6 years
and 3 months from the practical completion date). Alternatively,
for non structural defects, the time frame is 7 months to make a
If the contract was entered into on or after 10 October 2014,
then a complaint must be lodged as soon as possible but no later
than 12 months after noticing any structural defect. For non
structural defects, noticed within the first 6 months after the
work was completed, contractors are required to fix the defect
after notice is received in writing within those first 6 months. If
the work is not completed in 6 months, then the owner can lodge a
complaint with the QBCC within 12 months from the completion of the
WHAT TO DO
When administering a contract, it is crucial to ensure that you
are working off the correct timeframes provided either under the
contract or under BCIPA or the Queensland Building and Construction
Commission Act 1991. It is also important, when on the receiving
end of a notice, to act promptly and respond appropriately to the
notice to avoid a finding of a breach of the contract or
alternatively to avoid liability for a large payment claim which
would otherwise not be payable as claimed.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Warranties can be risk-shifting mechanisms when the party giving the warranty is not the party at fault for the defect.
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