Breakdown of extension of time (EOT) regime results in waiver of EOT procedural requirements.
This arose in the recent decision of Clarke Energy (Australia) Pty Ltd v Alinta Energy Transmission (Roy Hill) Pty Ltd [2026] NSWSC 1124 by the Supreme Court of New South Wales. That case involved a dispute between an employer (Alinta) and its contractor (Clarke) in relation to an EPC contract for a gas-fired power station in Western Australia.
The contract contained an EOT clause that required the contractor (i) to submit a delay notice in 15 days after becoming aware of a relevant event that will delay completion; and (ii) to submit an EOT claim in 20 days after becoming aware that the event is no longer continuing to delay completion (para 396). Both requirements were stated to be conditions precedent to EOT. The delay notice and EOT claim were to be submitted to the Superintendent (who was the contract administrator).
Despite circulating them to the employer, the contractor inadvertently omitted to submit its claim for EOT 1 and the preceding delay notices to the Superintendent on time (they were submitted late, after this slip was discovered). Notwithstanding this, the Superintendent proceeded to assess the claim and in the end determined that no EOT was due.
In its court action against the employer, the contractor claimed entitlement to EOT 1. As one of its defences, the employer contended that the conditions precedent to EOT was not met, because the delay notices and EOT claim were not submitted to the Superintendent in time.
The Court found that those conditions precedent had been waived by the employer, a reason being that the contractual regime for EOT claims to be determined promptly, by a fair and reasonable arbiter, had “entirely broken down”. This finding of breakdown was in turn based on the following events (paras 766, 767):
a) the contract timeframe for the Superintendent to determine EOTs (not just EOT 1) were not complied with;
b) the employer gave the Superintendent extensive and unsolicited responses to the EOT claims, often on the due date of the Superintendent’s decision, and this was “not conducive” to the Superintendent rendering his decision on time;
c) there were private communications between the Superintendent and the employer on the contentious issue of when practical completion was achieved, which “undermined” the role of the Superintendent; and
d) the Superintendent was replaced by the employer who did not agree with the practical completion date indicated by the former to the latter, and this “destroyed” the role of the Superintendent.
There are a few important observations that can be made from the above. First, the breakdown of the contract EOT regime can form the basis for waiver of the EOT procedure, and not only for setting time (for works completion) at large. (NB: the parties did not contend that the breakdown led to time being set at large, and so the Court did not deal with that issue).
Second, the breakdown events may include those relating to other EOTs and not just the EOT in question.
Third, the breakdown events may extend to those relating to actual completion, and not confined to EOTs only.
For completeness, the Court found waiver also because the employer requested the Superintendent to determine EOT 1 despite the late submission by the contractor, and the Superintendent did so (paras 768 – 775).
The contents of this article are published for the purpose of general information only; they are not to be regarded, used or relied on as legal advice for any matter. Please contact us if you require legal advice specific to your case.