A number of areas of change to the EXTENSION OF TIME claim provisions: occurring to more than 28 days after causation. The superintendent is obliged to certify liquidated damages as due and payable to the principal. This will create greater certainty as to the principal's ability to recover liquidated damages from the contractor. Delay damages are payable for extensions of time arising from a 'compensable cause'
A number of areas of change to the EXTENSION OF TIME claim provisions: occurring to more than 28 days after causation. The superintendent is obliged to certify liquidated damages as due and payable to the principal. This will create greater certainty as to the principal's ability to recover liquidated damages from the contractor. Delay damages are payable for extensions of time arising from a 'compensable cause'
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A number of areas of change to the EXTENSION OF TIME claim provisions: occurring to more than 28 days after causation. The superintendent is obliged to certify liquidated damages as due and payable to the principal. This will create greater certainty as to the principal's ability to recover liquidated damages from the contractor. Delay damages are payable for extensions of time arising from a 'compensable cause'
Direitos autorais:
Attribution Non-Commercial (BY-NC)
Formatos disponíveis
Baixe no formato PDF, TXT ou leia online no Scribd
EXTENSION OF TIME occurring to more than 28 days EXTENSION OF TIME
CLAIM PROCEDURES after causation. - LIQUIDATED DAMAGES
AND ASSESSMENT In any event, it is distinctly AND DELAY DAMAGES possible that these time Under AS4902 (Clause 34.7), the David Fabian and Ian Briggs requirements are not time bars. superintendent is obliged to Minter Ellison That possibility arises because of certify liquidated damages as due the wording of Clause 41.2. and payable to the principal. This will create greater certainty as to There are a number of areas of EXTENSIONS OF TIME - the principal's ability to recover change to the extension of time ASSESSMENT liquidated damages from the claim provisions: Assessment of claims is dealt with contractor. EXTENSION OF TIME under Clause 34.4. According to the terms of that clause: Delay costs were dealt with in - QUALIFYING CAUSES Clause 36 of AS4300.They are OF DELAY • If both qualifying and non- dealt with in Clause 34.9 of Clause 35.5 of AS4300 contained qualifying causes of delay overlap, AS4902, and AS4902 will lead to quite complicated references to AS4902 obliges the recovery of greater amounts than the types of delays that would superintendent to apportion delay AS4300. Under AS4902,'delay entitle contractors to claim to WUC according to whether it is damages' are payable for extensions of time. These lengthy non-qualifying or qualifying cause extensions of time arising from a provisions have been replaced of delay. This is a change in risk 'compensable cause' (i.e. a matter with a statement that the which operates in favour of the within the control of the principal contractor will be entitled to claim contractor, as it leaves open the or superintendent). The 'damages' an extension of time if (inter alia) possibility of the contractor being are to be assessed by the the contractor 'is or will be granted an extension of time even superintendent and (unlike delayed in reaching practical if it was also delaying the works to AS2124 or AS4300) will include completion by a qualifying cause some extent. This concept loss of profit and fixed overheads of delay' (Clause 34.3). 'Qualifying replaces the concept of recovery. cause of delay' is widely defined to 'concurrency' (Clause 35.5) be anything other than a breach provisions of AS4300 and AS2124, or omission by the contractor, or which have been notoriously industrial conditions/inclement difficult to apply. However it weather occurring after the Date remains to be seen whether the for Practical Completion. new 'apportionment' approach is any easier to administer. EXTENSION OF TIME CLAIM • It is the committee's intention -TIME BAR that the contractor still 'owns the Under Clause 34.3, the contractor float' although the relevant clause is only entitled to extension of time is not ideal and may give rise to claims if it submits a written claim differing interpretations. for an extension of time 'within 28 days of the time when the • If the superintendent does not contractor should reasonably respond to an extension of time have become aware of that claim within 28 days of receiving it, causation occurring'. then the extension of time is deemed to be granted as an AS4300 contained a similar time assessment and direction (Clause bar, with the contractor being 34.5). To challenge the claim, the obliged to give a notice within 28 principal will be forced to go days 'after the delay occurs'. through the claim provisions (i.e. Although the new standard avoids challenge a direction of the the difficulties with establishing superintendent). This is likely to when the delay 'occurs' it is not cause difficulties where the clear whether difficulties will now superintendent complains that arise as to when the 'causation' the claim lacks sufficient detail to occurs, and there is risk of delay enable a proper assessment.
AUSTRALIAN CONSTRUCTION LAW NEWSLETTER #77 MAY/JUNE 2001 23
First National Bank and Trust Company of Williston, A National Banking Corporation v. St. Paul Fire and Marine Insurance Company, A Capital Stock Corporation, 971 F.2d 142, 1st Cir. (1992)
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