Delay and extensions of time
The job is late. The question is why, who caused it, and what the contract said each side had to do about it at the time.
General information, not legal advice. This page sets out how the law generally applies. It does not take account of your circumstances, and you should get advice about your own situation before acting on it. The official sources this page is written from are listed on it; where they differ from anything here, they are the authority.
Late is a conclusion, not an argument
An owner reads this page because the house was meant to be finished in autumn and it is now spring, the rent or the second mortgage is still being paid, and the builder has stopped giving dates. A contractor reads it because the job ran long for reasons that were not theirs — a late design, a variation, weather, a supplier who failed — and the owner is now deducting liquidated damages from the next payment.
Both are asking the same question in different directions: who is responsible for the lost time. The contract answers it through a procedure rather than through fairness. There will be a date for completion. There will be a clause listing the events that entitle the contractor to more time. And there will be a requirement to notify, usually in writing and usually within a short period of the event becoming apparent.
That notice requirement is where most claims are won and lost. A contractor who was genuinely delayed by the owner’s late decision, but who said nothing at the time, can find the entitlement gone. An owner who allowed extensions informally by email, or who kept instructing changes while insisting on the original date, can find the completion date has moved whether they meant it to or not.
For residential work there is a statutory layer as well. Section 18B of the Home Building Act 1989 implies a warranty that the work will be done within the time stated in the contract or, where none is stated, within a reasonable time. That gives a home owner a claim that does not depend only on the contract’s own machinery.
What the work actually is
Reconstructing the programme
What the contract required, what actually happened, and where the time went. That means building a timeline from the documents — site diaries, minutes, inspection records, delivery dates, weather records — rather than from anyone’s account of the job.
Checking every notice against the clause
Whether a notice was required, whether it was given in the form and within the period the contract fixes, and whether the other side’s conduct has affected the position. This is done clause by clause, because contracts differ considerably in how strict they are.
Advising on liquidated damages
Whether the rate applies, from what date, and for what period. Whether any part of the delay entitles the contractor to an extension. And whether the deduction that has been made is one the contract actually permits, which it sometimes is not.
Deciding whether expert analysis is worth it
Delay experts are expensive and on a small job they can cost more than the amount in dispute. We tell you when a programming analysis is needed to prove the claim and when the timeline and the documents will do the work on their own.
Questions people ask first
The builder is months late. Can I just deduct liquidated damages?
Only if the contract provides for them, only at the rate it states, and only for the period it allows. You also need to be confident that no extension of time is owed for part of the delay, because deducting for a period the contractor was entitled to can put you in breach. Check what the contract requires before the next progress payment, not after.
I did not give the notice the contract asks for. Is my extension claim dead?
Not necessarily, but assume it is in trouble and get advice quickly. Much depends on the exact wording of the clause, on whether the other party has behaved in a way that affects its operation, and on what was said at the time. Do not send a further letter about it before someone has read the clause.
Is bad weather an extension of time?
Usually only if the contract says so, and usually only beyond some measure of what was foreseeable. Most standard forms deal with weather expressly and require records. If you are relying on it, keep dated records of the conditions and of what work could not proceed, because dated records can help substantiate the conditions and their effect on the work.
There is no completion date in my contract. What then?
For residential building work, the statutory warranty in section 18B of the Home Building Act requires the work to be done within the time stated in the contract or, if none is stated, within a reasonable time. What is reasonable depends on the scope and the circumstances, and it is a question that benefits from evidence rather than assertion.
The delay cost me money on top of the lost time. Can I claim that?
Sometimes. An extension of time and delay costs are different claims. Whether the extra cost of being on site longer is recoverable depends on the clause, on what caused the delay, and often on separate notice requirements. Claiming time and forgetting money is a common and avoidable loss.
Where does a delay dispute get decided?
For a residential build, usually in NCAT’s Consumer and Commercial Division alongside the defects and the payment issues. Larger or commercial disputes go to the courts. Some delay-related amounts can also form part of a payment claim under the Security of Payment legislation. See NCAT and court.
What to bring
A delay claim is a timeline. The documents that make one are usually already on your phone or in the site folder.
- The contract, especially the completion date, the extension of time clause and the liquidated damages rate.
- The construction programme, and any revised versions of it.
- Every extension of time notice and claim, and every response to one.
- Site diaries, meeting minutes and inspection records.
- Dated records of the delaying events — weather, deliveries, design changes, approvals.
- Every variation instruction, because varied work often carries time with it.
- Progress claims and payment records showing any liquidated damages already deducted.