Essence of Time in Construction Contracts

The building industry has in recent years seen huge costs incurred due to disputes arising on notice requirement clauses. These claims could have been averted if the parties had been diligent in providing the necessary notices. This article sets out to explore the law briefly as interpreted by the courts in common law and equity and discuss the possibility of defence under the principle of promissory estoppel. More importantly it also shares the author's view on how such pitfalls could have been prevented by giving the proper notices within the timeline required by the contract conditions. It cannot be emphasised enough that contractors would be wise to comply strictly with the notice provisions in the contract instead of relying on the estoppel principle or waiver or unconscionability to save their day. Notice clauses essentially require a competent contracts administrator to follow the time line provided in the contract conditions and would be most effective if the project team worked closely with the contracts administrator to ensure that proper notices are given when directions or instructions are received. Although it is common to see notice clauses which make it a condition precedent for a contractor to be entitled to claim for an extension of time or loss and expense claim being interpreted restrictively, in any litigation or arbitration it is always difficult to predict how the courts or tribunal would be willing to uphold such notice clause. It is therefore in the interest of the parties that notice clauses should be properly observed. Suffice to say, failure to comply with a notice clause and time bar may be fatal to a claim.