Delay and Extension of Time
Albert K H Juan
Barrister-at-Law
Lecturer, Department of Real Estate &
Construction, The University of Hong Kong
Delay
Time aspect of construction projects
Along with cost and quality
Main Contractor’s obligations
Beyond the control of parties
Caused by the Employer
Caused by the Main Contractor
EOT – in respect of certain causes of delay
Beyond the control of parties
Force majeure :Nature/natural disasters – Act of God
Examples: war, epidemics, earthquake, governmental
requirements, exceptionally adverse weather
Before commencement and during the course of
works
Covered by insurance
Caused by the Employer
Disturbance of regular progress of the works
Claims for loss and expense
The Employer’s personnel
AIs caused :Additional work to be done
Postponement
Change of sequence
Necessary instructions or drawings as per a
specific request in writing
Delay of artists, tradesmen or other people
engaged by the Employer (in executing other
works)
Caused by the Main Contractor
In violation of the obligations
Mismanagement in respect of :Labour, goods/materials, plant and equipment
Remedies available to the Employer
LD, determination
Domestic sub-contractors VS NSCs
EOT - Introduction
Types of valid grounds
Condition precedent
Grounds and procedure
Meaning
Date for Practical Completion – be reasonably
extended
Clause 23 of the Old Standard Form
Concepts in relation to Time
Time is “of the essence”
Meaning
Remedies available
Circumstances in which time will be of the essence
of the contract :So expressed in the contract concerned
In case of delay to an unreasonable extent
NB- for typical construction contracts :-
Time is “at large”
Meaning
In the absence of an agreed date for completion
Court’s approach: a question of facts
Rare for standard forms of building contract
When may time become at large? – NBdefault/neglect on the part of the Architect
May affect the operation of the LD clause
EOT - Grounds
Grounds
Fault of neither contractual party :Force majeure
Inclement weather (rain, typhoons)
Civil commotion, local combination of workmen,
strike or lockout which affects any of the
trades/manufacture/transportation of
goods/materials
NSCs
Antiquities
Shortages in respect of labour or goods/materials
Fault of the Employer :Include:
Compliance with AIs
Delay in receiving instructions/drawings
Delay on the part of the people engaged by the
Employer
EOT - Procedure
Is mere occurrence of a certain relevant event
sufficient?
NB- “Causal” link
Reasonably apparent that the progress of the
works is delayed
Give written notice forthwith
To the Architect
Cf. procedural requirements under the New
Standard Form
Role of the Architect
What if the Main Contractor fails to act
promptly?
Consideration of EOT Applications
Consideration by the Architect :Estimate/decide on the length of delay
Complicated task at times
As soon as he can reasonably decide on the
matter
NB- right to challenge the decision made by the
Architect
Consider the scenario in which the Architect, in
his decision on the matter, provides detailed
reasons as support :A matter which calls for an exercise of judgment
Cf. duty of a judge
From the perspective of the Main Contractor
Duty of the Architect to grant an EOT if the
application is with justifications
Grounds/criteria as set out in the construction
contract are the relevant considerations
NB- the Architect may communicate
with/inform the Employer prior to making his
decision
Is this to be a relevant consideration?
Cf. duty to seek consent?
Argyropoulos & Pappa v Chain Compania Naviera
SA (1990) 7-CLD-05-01 :Facts: the employer concerned raised objections
to and refused to accept the grant of an EOT in
favour of the main contractor concerned
What the employer was doing was to prevent
the architect from granting the EOT
NB- the actions of the architect
References – (see Course handout/planner)