Essence of Time in Construction Contracts

Abstract

The building industry has in recent years seen huge costs incurreddue to disputes arising on notice requirement clauses. Theseclaims could have been averted if the parties had been diligent inproviding the necessary notices. This article sets out to explorethe law briefl y as interpreted by the courts in common law andequity and discuss the possibility of defence under the principle ofpromissory estoppel. More importantly it also shares the author’sview on how such pitfalls could have been prevented by givingthe proper notices within the timeline required by the contractconditions. It cannot be emphasised enough that contractorswould be wise to comply strictly with the notice provisions in thecontract instead of relying on the estoppel principle or waiver orunconscionability to save their day. Notice clauses essentiallyrequire a competent contracts administrator to follow the time lineprovided in the contract conditions and would be most effective ifthe project team worked closely with the contracts administratorto ensure that proper notices are given when directions orinstructions are received. Although it is common to see noticeclauses which make it a condition precedent for a contractor to beentitled to claim for an extension of time or loss and expense claimbeing interpreted restrictively, in any litigation or arbitration it isalways diffi cult to predict how the courts or tribunal would be willingto uphold such notice clause. It is therefore in the interest of theparties that notice clauses should be properly observed. Suffi ceto say, failure to comply with a notice clause and time bar may befatal to a claim.