Contractual Bars Flashcards
What is the old case supporting the traditional prima facie position in respect to time bars?
They are enforceable.
See The Tharsis Sulphur and Copper Company v McElroy & Sons (1878) per Lord Blackburn:
‘…it is common enough to have provisions…and there is nothing fraudulent or iniquitous in the way they are carried out, those conditions would be quite sufficient and effectual.’
What is the modern cases supporting the enforceability of time bars?
CMA Assets Pty Ltd v John Holland Pty Ltd [No 6] [2015] WASC 217
John Holland resisted claim for variation and delay because contractual information had not been provided. Per Allanson J: “‘There is no doubt that the strict application of [contractual bar] is harsh. But I am not satisfied that it is without purpose and absurd, so that an alternative construction must be given, notwithstanding apparently clear words”.
What happens if an employer causes a delay, but the contractor fails to comply with the pre-requisites for an EOT? Does time get set at large?
Conflicting views.
No - contractor cannot benefit from own failure: Turner Corp Pty Ltd v Austotel Pty Ltd (1994) NSWSC.
Yes - employer takes risk of non compliance: Gaymark Investment Pty v Walter Construction Group [1999] per NTSC.
