Clause 35.5 identifies the causes of delay for which the contractor can claim an extension of time under AS 4300. Compared with other forms of contract, the list of qualifying causes is relatively broad.
Clause 35.5 is divided into two subclauses, (a) and (b). Clause 35.5(a) deals with events that occur ‘on or before the Date for Practical Completion’, whereas clause 35.5(b) deals with events that occur at any time, including ‘before, on or after the Date for Practical Completion’.
Clause 35.5(a) permits the contractor to claim an extension of time if it is delayed by any event that occurs on or before the date for practical completion that is beyond the reasonable control of the contractor. This is drafted broadly to include industrial conditions, inclement weather or any other cause.
This wording means that anything occurring before the date for practical completion will entitle the contractor to claim an extension of time, provided it is beyond the contractor’s reasonable control.
The list of events in clause 35.5(b) are further examples of events for which an extension of time can be claimed. If the delay event occurs before, on or after the date for practical completion, the list of qualifying causes is narrower, but still relatively broad.
The causes include:
Where more than one event causes concurrent delays, and at least one of those delay events is not a cause referred to in clauses 35.5(a) and (b), the contractor will not be entitled to claim an extension of time.
This is different to the position under AS 4000, which allows an apportionment for qualifying and non-qualifying causes of delay (see clause 34.3 of AS 4000).
Read our explanation of a qualifying cause of delay under AS 4000 here. Find out more about AS 4000 here.
Clause 36 of AS 4300 obliges the principal to pay any delay costs where an extension of time has been granted for:
An example of a cause of delay falling within the last category is a delay caused by a latent condition. This is because clause 12.3 expressly entitles the contractor to a valuation where a latent condition causes the contractor to carry out additional work, use additional construction plant or incur extra cost (including but not limited to the cost of delay or disruption). You can read more about how to deal with a latent condition under AS 4300 here.
One of the Annexure items in AS 4300 appears as follows:
Confusion often arises in relation to this item.
Sometimes, a principal or project manager will insert ‘Nil’ or ‘not applicable’ in this part of the Annexure, believing that this means delay costs will never be payable to the contractor.
However, when read in conjunction with clause 36, all this is likely to mean is that there are not additional delay events for which delay costs are payable.
This wording is unlikely to deprive the contractor of its entitlement to claim delay costs under clause 36 for the events described in clause 35.5(b)(i) (being delays caused by the principal and the superintendent and for others for whom they are responsible) or elsewhere in the contract (for example, for latent conditions under clause 12).
If you wish to limit the circumstances in which delay costs are payable, the safest way to achieve this is to amend the contract or use special conditions, using clear words that explain what is intended.
The table below summarises when the contractor can claim an extension of time and/or delay costs under AS 4300.
This summary assumes that the annexure has not been completed in a way that would alter the position under an unamended AS 4300, and that there are not applicable special conditions.
The table also assumes that the contractor has not caused or contributed to the delay. Where that is the case, the contractor will not be able to claim an EOT, at least to the extent of its contribution.