Podcast Transcript
Hosts: Eon Engelbrecht (Host) & Jaco Hamman (Guest)
Podcast: Listen to the Podcast
INTRO
Eon:
Good afternoon and welcome back. Today we’re unpacking one of the most important - and often misunderstood - topics in construction contracts: Extensions of Time under the JBCC Principal Building Agreement.
I’m joined again by Jaco Hamman, and earlier this week we ran an interesting poll on LinkedIn around unexpected weather delays. Before we dive into those results, Jaco, let’s start at the beginning.
What exactly is an Extension of Time, or EOT?
WHAT IS AN EOT?
Jaco:
Thanks, Eon.
When you enter into a construction contract, the employer wants certainty - they want the project completed by a specific date. Under the JBCC Principal Building Agreement, that date is known as the date of practical completion.
Let’s say, for example, that date is set as 15 December 2026. The contract then usually provides that if the contractor fails to reach practical completion by that date, penalties - often liquidated damages - become payable for each day of delay.
Now, if the delay is caused by something outside the contractor’s control, the contractor is entitled to submit an Extension of Time claim, or EOT.
In essence, the contractor is saying:
“I agreed to complete the works by this date, but due to circumstances that weren’t my fault, I need more time.”
If that EOT is granted, the completion date moves - and the penalties fall away for that period.
THE LINKEDIN POLL
Eon:
That sets the scene well.
Now, let’s talk about the poll we ran on Friday. The question was:
You experience 15 days of unexpected rain on site. You mention it to the Principal Agent at the monthly site meeting. Are you covered for an Extension of Time under JBCC?
Here’s how people responded:
- Yes, it’s on the minutes - 29%
- No, I missed the window - 14%
- It depends on the Principal Agent - 29%
- Only if the weather was “exceptional” - 29%
So, Jaco… what’s the correct answer?
WHAT THE JBCC ACTUALLY SAYS
Jaco:
As with most things in construction law, Eon, the answer lies in the wording of the contract itself.
Under the JBCC Principal Building Agreement, Clause 23 deals with revisions to the date of practical completion.
If we look first at Clause 23.1, it states that the contractor is entitled to a revision of the date of practical completion where the delay is caused by certain listed events.
One of those events, in Clause 23.1.1, is adverse weather conditions.
At this point, many contractors get excited and think:
“Perfect - rain is listed, so I’m covered.”
And they immediately align themselves with that first 29% - “Yes, it’s on the minutes.”
But here’s the problem: you can’t stop reading at Clause 23.1.
THE NOTICE REQUIREMENT (WHERE MOST CLAIMS FAIL)
Jaco:
You then need to read Clause 23.4, which sets out what the contractor must do when one of those delaying events occur.
Clause 23.4 requires that the contractor:
- Take reasonable steps to avoid or reduce the delay; and
- Within 20 working days of becoming aware of the delay, give notice to the Principal Agent of their intention to submit an EOT claim.
And the contract is very clear:
If this notice is not given within that period, the contractor forfeits the claim entirely.
WHY THE DEFINITIONS MATTER
Eon:
This is where people often trip up, right?
Jaco:
Exactly.
Whenever words are printed in bold in the JBCC contract, it means they are defined terms - and you must go back to the definitions section to understand what they really mean.
Let’s look at two critical ones here.
First, “working days.”
Under the JBCC, working days are calendar days, excluding:
- Saturdays
- Sundays
- Public holidays
- The contractor’s recorded annual shutdown period
So, in practical terms, the contractor has roughly 20 calendar days to issue the notice.
Second - and this is the big one - what is a “notice”?
WHY SITE MINUTES ARE NOT ENOUGH
Jaco:
A notice, under the JBCC, is defined as a written communication, excluding social media, issued by one party to the other.
The notice must come from the contractor and must be delivered to the Principal Agent in accordance with Clause 2 of the contract.
Clause 2.4 is particularly important. It states that where a notice is sent by email, it is deemed received within one working day.
Now here’s the critical issue with the poll question: If the Principal Agent records the rain delay in the site meeting minutes, and later sends those minutes to the contractor, that is not the contractor giving notice.
So, despite the delay being real - and even acknowledged - the contractor is still noncompliant with Clause 23.4.
THE FINAL ANSWER
Eon:
So, just to be absolutely clear…
Jaco:
Mentioning the delay at a site meeting, even if it appears in the minutes, is not sufficient under the JBCC.
Without a proper written notice, issued by the contractor within 20 working days, the contractor loses the right to claim an Extension of Time - regardless of how unfair that may feel.
OUTRO
Eon:
That’s an incredibly important takeaway - and one that could save contractors from very expensive mistakes.
Jaco, thanks again for breaking this down so clearly and practically.
Jaco:
Always a pleasure, Eon.
Eon:
And to our listeners: if you found this useful, make sure you subscribe and share it with your team.
Until next time - read the contract, and then read it again.