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Construction Law Blog - Extensions of Time

Everyone has a dream for the future. For many of us, it is building our own house. It is the most important, expensive and biggest commitment we will ever undertake, other than getting married, having children or owning a pet, or all three together (my hand sadly rises in acknowledgment).

So with excitement and anticipation you sign a building contract with a builder who has promised to build you the perfect home in record time. Weeks pass, then months and barely any works have commenced. You query your builder about the significant time that has elapsed and the next day, you receive a notice of Extension of Time (EOT).

Under your Building Contract, the builder can give you an EOT in certain circumstances. The most common EOTs are for inclement weather and material, labour, and transport shortages. An EOT extends the time under the Building Contract that the builder has to complete your home.

An important note for those who have signed a "Master Builders" Building Contract - if you don't dispute the EOT within 5 days, you are taken to have agreed to the EOT.

Most owners who receive an EOT from their builder, sigh with resignation and accept that the builder must be justified in rendering an EOT. In many cases, the builder is justified. It can't perform bricklaying if it is pouring with rain. It can't put up a roof if there is a supply shortage of roofing material or roof plumbers.

However, some builders do take advantage by rendering EOTs when they are not entitled to do so. For example, in one of my recent cases, a builder gave my client an EOT for 105 days of "inclement weather". To justify this, the builder produced a Bureau of Weather report for 12 months and claimed an EOT for every day there was rain. This might seem reasonable, until looking closely at the BOM report and seeing that on many days the rain was less than 0.5mm, which amounts to a sprinkle for 2 minutes. On other days, the house was already at lockup, so rain would not have impeded works from occurring. Sneaky.

Additionally, EOTs cannot just refer to a general "shortage of materials or labour". They have to specifically link the shortageto the actual status of the build. For example, an EOT for shortage of materials, should say something like "shortage of brick materials and inability to perform brick works".

It is possible to challenge an EOT and to claim damages for delay. If you need assistance, feel free to call me to discuss.