Case Law Update

D’Arcy v Queensland Building and Construction Commission [2026] QCA 200

Sian Keast | Elissa Morcombe | Oliver Conroy

Key takeout 

Work done on an individual residential unit within a building of more than 3 storeys falls within the exclusion in section 26(a) of the Queensland Building and Construction Commission Regulation 2018 (Qld) (QBCC Regulation) and is not eligible for cover under Queensland’s Home Warranty Scheme (Scheme).

The consumer protection purpose of the Scheme does not override the plain words of the exclusion. Section 67WB(1)(f) of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) expressly authorises regulations to exclude types of building work from the Scheme. Where that line is drawn is a policy decision, not a matter for the courts.

Owners should not assume renovation work is covered by the Scheme simply because a premium has been paid and the Queensland Building and Construction Commission (QBCC) has issued a notice of cover.

Facts

In October 2021, D’Arcy engaged a licensed builder to renovate the bathroom and kitchen of her tenth-floor apartment in Surfers Paradise. The builder collected the Scheme premium from D’Arcy and paid it to the QBCC, which issued D’Arcy a notice of cover.

The builder started but refused to complete the work after falling into dispute with D’Arcy. D’Arcy made a claim under the Scheme for assistance with the reasonable cost of completing the work.

The QBCC refused the claim on the basis that section 26(a) of the QBCC Regulation excluded work ‘on or for’ a ‘multiple dwelling‘ of ‘more than 3 storeys‘.

D’Arcy applied to the Queensland Civil and Administrative Tribunal (QCAT) for an external review of the QBCC’s decision. Both QCAT and the QCAT Appeal Tribunal upheld the QBCC’s decision to reject D’Arcy’s claim.

D’Arcy then sought leave to appeal the decision to the Queensland Court of Appeal under section 150(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

Decision

The Court of Appeal dismissed the application for leave to appeal with costs.

D’Arcy raised 2 proposed grounds of appeal in support of her application for leave:

1. that section 26(a) of the QBCC Regulation had been incorrectly interpreted; and
2. that section 26(a) of the QBCC Regulation was invalid.

The Court of Appeal ruled that neither ground had any prospect of success and therefore refused leave to appeal the decision.

Ground 1: Statutory interpretation of section 26(a) of the QBCC Regulation

D’Arcy argued that, on its proper interpretation, the words ‘work on or for a… multiple dwelling’ in the section 26(a) exclusion did not include work done on part of a multiple dwelling, such as an individual residential unit, and should be confined to work on the building itself (for example, exterior walls or common property).

The Court rejected this submission. The Court held that the text of the legislation ‘unambiguously encompasses’ work done on a residential unit within the building. The provision does not distinguish between work on the structure of the building and work done within it, and D’Arcy’s interpretation introduced a restriction not found in the provision. This was reinforced by the definition of ‘multiple dwelling’ as ‘a building comprising 2 or more separate residential units, other than a duplex’. Since the multiple dwelling consists of residential units, work done on one of those units is work done on part of the multiple dwelling itself, and therefore ‘work on or for’ the multiple dwelling. The Court further noted that the examples given in section 26(a), which expressly refer to renovating the bathroom of a single residential unit in a 10-storey multiple dwelling, were consistent with this interpretation.

Ground 2: Validity of section 26(a) of the QBCC Regulation

D’Arcy also contended that section 26(a) of the QBCC Regulation was invalid as subordinate legislation on the basis that it was inconsistent with the QBCC Act or beyond the proper scope of the regulation-making power.

The Court rejected this submission. Section 67WB(1) of the QBCC Act lists categories of building work not eligible for assistance under the Scheme and, in section 67WB(1)(f), expressly authorises regulations that exclude other types of building work. Nor was the regulation so lacking in reasonable proportionality that it was not a real exercise of power. The Court emphasised that the three-storey threshold reflects a policy choice made by Parliament and it is not for the courts to replace that choice with their own. Section 26(a) was therefore found to be valid.           

Gulf Civil Pty Ltd v K & F Group Pty Ltd [2026] QSC 221

Michael Creedon  |  Charlotte Gordon  |  Sarah Nichols

Key takeout

• A hire agreement stated to be ‘ongoing until return of machinery’ may stay on foot, and support a security of payment claim, while any single item remains deployed.
• A solicitor’s letter affirming that a hire agreement remains in place can confirm a ‘construction contract’ or itself create an ‘other arrangement’ under section 64 of the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (BIF Act).
• A party challenging an adjudicator’s jurisdiction bears the onus of proving there was no construction contract. Gaps in evidence count against it.

Facts

On 20 March 2022, K & F Group Pty Ltd (K & F) and Gulf Civil Pty Ltd (Gulf Civil) entered into a document for the hire of plant (Hire Agreement). The Hire Agreement identified K & F as the ‘Owner’ and Gulf Civil as the ‘Hirer’. At the time, both companies were controlled by Owen Whish (Whish).

The Hire Agreement was to be read in conjunction with the ‘Agreement Particulars’. The Agreement Particulars were to be entered into on each and every occasion that K & F hired plant to Gulf Civil. However, only one set of Agreement Particulars was ever prepared (on 20 March 2022).  It recorded a commencement date, described the duration as ‘ongoing until return of machinery’, and listed 22 items of plant and equipment with hourly and monthly hire rates.

The plant and equipment listed in the Agreement Particulars was subsequently deployed and used by Gulf Civil. As time went on, items were returned to K & F’s depot and redeployed from time to time.

In mid-2025, Whish entered negotiations for the sale of Gulf Civil and also offered to sell the deployed K & F equipment to Gulf Civil. On 4 August 2025, Haribol Civil Pty Ltd acquired all the shares in Gulf Civil. At meetings on 4 and 5 August, Whish told Gulf Civil’s new owner that Gulf Civil could use the deployed plant free of charge while it considered whether to buy it. Some weeks later, Gulf Civil declined to purchase the plant. 

On 27 August 2025, K & F purported to terminate the Hire Agreement on 14 days’ notice.  On 19 September 2025, Gulf Civil’s then solicitors responded (19 September Letter). The letter stated that the Hire Agreement set out the basis on which K & F had hired the plant to Gulf Civil, that K & F had no unilateral right to terminate it, and that it would end when the plant was returned. Gulf Civil progressively returned the plant, with all items returned by December 2025.

On 2 January 2026, K & F issued a payment claim for $1,143,388 to Gulf Civil. The payment claim was made under the BIF Act and claimed hire charges, repair costs, loss-of-use damages, servicing and compliance costs, and a demobilisation charge. Hire charges for each item ran from 4 August 2025 (the date of the share sale), and most were calculated using rates said to be drawn from the Agreement Particulars.

On 23 January 2026, Gulf Civil issued a payment schedule in response to K & F’s payment claim. The payment schedule assessed the amount payable as ‘$nil’, noting that there was no clear contractual basis for the entitlement. Gulf Civil claimed that the hire charges were not properly incurred under the Hire Agreement and that it never accepted that such charges would accrue after completion of the share sale.

On 6 March 2026, K & F applied for adjudication under the BIF Act. On 7 May 2026, the adjudicator determined K & F was entitled to $301,768.

By application to the Supreme Court of Queensland, Gulf Civil sought orders that the adjudication decision be set aside or declared void for want of jurisdiction. It contended that the adjudicator erred in determining the charges were incurred under a ‘construction contract’ within the meaning of section 64 of the BIF Act.

Decision

Gulf Civil’s application was dismissed. The Court found that Gulf Civil failed to demonstrate that the adjudication decision was made in the absence of the necessary jurisdictional fact of the existence of a construction contract.

Did the Hire Agreement constitute a ‘construction contract’?

The Court found that the Hire Agreement was a ‘rolling hire agreement’.

In reaching this decision, the Court noted that there were ‘obvious oddities and inconsistencies’ in the Hire Agreement. For instance, defined terms referred to annexures or schedules that did not exist, and text was missing from the end of the document. Despite such anomalies, the Court had ‘no doubt’ that the Hire Agreement constituted a concluded agreement whereby K & F agreed to hire plant to Gulf Civil from 20 March 2022, in return for Gulf Civil paying hire charges at the rates set out in the Agreement Particulars.

The Court noted that the Hire Agreement’s ‘character’ largely turned upon the proper construction of the ‘Entire Agreement’ clause. The Entire Agreement clause required Agreement Particulars to be entered into each time plant was hired and stated that any further Agreement Particulars would be subject to the Hire Agreement’s terms. This was suggestive of a framework agreement. However, such language was also in tension with the duration stated in the Agreement Particulars (ie ‘Ongoing until return of machinery’). When considering this, the Court noted that the real issue was not how the Hire Agreement ought to be characterised in the abstract, but rather when it would end. With that focus, the Court found that the Hire Agreement was properly characterised as a ‘rolling hire agreement’. That was apparent from reading the entire agreement, having regard to its context and the commercial purposes or objectives it sought to secure.

The Court concluded that a reasonable businessperson would have understood that the Hire Agreement was intended to provide for ‘a continuing, rolling hire agreement’. The Court construed the duration in the Agreement Particulars to mean ‘ongoing until the return of all machinery’. That interpretation was consistent with clause 37(c) of the Hire Agreement, which stated, ‘the singular includes the plural’.

The Court noted that Gulf Civil’s construction would produce an ‘unwieldy result’ and one which would ‘frustrate the commercial objects that were sought to be secured by the contract’. That is, each item would only be hired for one discrete ‘Hire Period’ and could not be remobilised without entering into a new set of Agreement Particulars. When considering the alternative construction, the Court suggested that ongoing projects requiring the use of the plant could be unnecessarily delayed until further Agreement Particulars were finalised. There would also be ‘a slew of different Agreement Particulars unnecessarily accumulating’, which could not have been the parties’ intention.

Was the Hire Agreement still on foot as of 4 August 2025?

The Court found that the Hire Agreement remained on foot as of 4 August 2025.

In reaching this decision, the Court noted that there was no evidence of when and how the 22 items listed in the Agreement Particulars were returned and redeployed. However, it seemed more likely than not that most of the items had been returned at some time. Notably, the evidence did not establish that all items had been returned at any one point in time (which would have brought the Hire Agreement to an end). In particular, a dozer listed in the Agreement Particulars had remained deployed at Gulf Civil’s Jardine River project since 2024. As a result, the Court rejected the argument that there was no ‘construction contract’ from 4 August 2025 onwards.

The Court held that the 19 September Letter confirmed the existence of the Hire Agreement as a ‘construction contract’ (with effect from at least 4 August 2025). Whish’s ‘free of charge’ statement did not change this. Whatever its effect on Gulf Civil’s liability for hire charges in the interim, it did not affect the Hire Agreement’s continued existence. In the alternative, the Court held that even if it was wrong about the proper construction of the Hire Agreement, the 19 September Letter would nonetheless amount to an ‘other arrangement’ under section 64 of the BIF Act. Once the 19 September Letter was sent, there was a concluded, bilateral state of affairs under which K & F undertook to supply (and had supplied) plant for hire to Gulf Civil. By its conduct, Gulf Civil adopted and confirmed the arrangement documented in the Hire Agreement.

The Court considered that Gulf Civil’s adoption of the Hire Agreement operated retrospectively from 4 August 2025 but held that this was ‘immaterial’. According to the Court, the 19 September Letter showed that there was an arrangement constituting a ‘construction contract’ (at least from 19 September). That was all that was required for the adjudicator to have jurisdiction to decide the application. Any errors about entitlement to particular hire charges or charging periods were errors within the adjudicator’s jurisdiction and did not invalidate the decision.

D’Arcy v Queensland Building and Construction Commission [2026] QCA 200

Sian Keast | Elissa Morcombe | Oliver Conroy

Key takeout 

Work done on an individual residential unit within a building of more than 3 storeys falls within the exclusion in section 26(a) of the Queensland Building and Construction Commission Regulation 2018 (Qld) (QBCC Regulation) and is not eligible for cover under Queensland’s Home Warranty Scheme (Scheme).

The consumer protection purpose of the Scheme does not override the plain words of the exclusion. Section 67WB(1)(f) of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) expressly authorises regulations to exclude types of building work from the Scheme. Where that line is drawn is a policy decision, not a matter for the courts.

Owners should not assume renovation work is covered by the Scheme simply because a premium has been paid and the Queensland Building and Construction Commission (QBCC) has issued a notice of cover.

Facts

In October 2021, D’Arcy engaged a licensed builder to renovate the bathroom and kitchen of her tenth-floor apartment in Surfers Paradise. The builder collected the Scheme premium from D’Arcy and paid it to the QBCC, which issued D’Arcy a notice of cover.

The builder started but refused to complete the work after falling into dispute with D’Arcy. D’Arcy made a claim under the Scheme for assistance with the reasonable cost of completing the work.

The QBCC refused the claim on the basis that section 26(a) of the QBCC Regulation excluded work ‘on or for’ a ‘multiple dwelling‘ of ‘more than 3 storeys‘.

D’Arcy applied to the Queensland Civil and Administrative Tribunal (QCAT) for an external review of the QBCC’s decision. Both QCAT and the QCAT Appeal Tribunal upheld the QBCC’s decision to reject D’Arcy’s claim.

D’Arcy then sought leave to appeal the decision to the Queensland Court of Appeal under section 150(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

Decision

The Court of Appeal dismissed the application for leave to appeal with costs.

D’Arcy raised 2 proposed grounds of appeal in support of her application for leave:

1. that section 26(a) of the QBCC Regulation had been incorrectly interpreted; and
2. that section 26(a) of the QBCC Regulation was invalid.

The Court of Appeal ruled that neither ground had any prospect of success and therefore refused leave to appeal the decision.

Ground 1: Statutory interpretation of section 26(a) of the QBCC Regulation

D’Arcy argued that, on its proper interpretation, the words ‘work on or for a… multiple dwelling’ in the section 26(a) exclusion did not include work done on part of a multiple dwelling, such as an individual residential unit, and should be confined to work on the building itself (for example, exterior walls or common property).

The Court rejected this submission. The Court held that the text of the legislation ‘unambiguously encompasses’ work done on a residential unit within the building. The provision does not distinguish between work on the structure of the building and work done within it, and D’Arcy’s interpretation introduced a restriction not found in the provision. This was reinforced by the definition of ‘multiple dwelling’ as ‘a building comprising 2 or more separate residential units, other than a duplex’. Since the multiple dwelling consists of residential units, work done on one of those units is work done on part of the multiple dwelling itself, and therefore ‘work on or for’ the multiple dwelling. The Court further noted that the examples given in section 26(a), which expressly refer to renovating the bathroom of a single residential unit in a 10-storey multiple dwelling, were consistent with this interpretation.

Ground 2: Validity of section 26(a) of the QBCC Regulation

D’Arcy also contended that section 26(a) of the QBCC Regulation was invalid as subordinate legislation on the basis that it was inconsistent with the QBCC Act or beyond the proper scope of the regulation-making power.

The Court rejected this submission. Section 67WB(1) of the QBCC Act lists categories of building work not eligible for assistance under the Scheme and, in section 67WB(1)(f), expressly authorises regulations that exclude other types of building work. Nor was the regulation so lacking in reasonable proportionality that it was not a real exercise of power. The Court emphasised that the three-storey threshold reflects a policy choice made by Parliament and it is not for the courts to replace that choice with their own. Section 26(a) was therefore found to be valid.           

CGC Qld Pty Ltd v Ziegel Co Pty Ltd [2026] QSC 224

Andrew Orford  |  Ren Shike  |  Ada Harvey

Key takeout

• Parties may ‘drift’ into a construction contract for the purpose of the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (BIF Act) through their conduct, even where no subcontract or novation is signed.
• A consistent course of dealings, including the performance of work, agreed rates and payment claims, may be enough to establish a contract, particularly where the parties have agreed how work is to be valued.
• Reference dates may be inferred by the parties’ dealings.
• An adjudicator has the power to decide whether further submissions requested by the adjudicator were properly made, including for example where the submissions are received after the deadline set by the adjudicator.  

Facts

In July 2024, CGC Qld Pty Ltd (CGC) engaged Brizmasonry Pty Ltd (Brizmasonry) under a written subcontract to perform construction works.

In November 2024, Brizmasonry informed CGC that a related entity, Ziegel Co Pty Ltd ATF Norcott Family Trust (Ziegel), would perform the remaining works and sought CGC’s consent to novate the subcontract. Despite the proposed novation not being executed and no written subcontract being signed, Ziegel commenced and continued performing the works.

In February 2025, Ziegel provided CGC with a schedule of rates and requested a work order. CGC did not respond. Despite this, CGC paid or partly paid Ziegel’s payment claims for contract works and variation works in accordance with the schedule of rates over several months. Payment certificates issued by CGC identified Ziegel as the subcontractor, albeit noting that no signed subcontract existed.

On 29 August 2025, Ziegel issued a payment claim for $81,666. CGC did not pay the claim, following which Ziegel applied for adjudication under the BIF Act. The adjudicator determined the application in Ziegel’s favour awarding $79,531.

CGC applied to the Supreme Court of Queensland seeking declarations that the adjudication decision was void. CGC contended that:

• no construction contract existed between CGC and Ziegel;
• the payment claim was made before the relevant reference date; and
• the adjudicator committed jurisdictional error by considering further submissions that were not ‘properly made’ because they were lodged 24 minutes after the deadline the adjudicator had set.

Decision

Hindman J dismissed CGC’s application and upheld the adjudication decision in favour of Ziegel.

Construction contract existed

Her Honour found that a construction contract existed for the purposes of the BIF Act, notwithstanding the absence of a signed subcontract or executed novation. The test was whether there was a sufficiently concluded, bilateral state of affairs by the time of the payment claim. Ziegel performed the work at CGC’s request, and CGC paid four earlier claims calculated on Ziegel’s rates. That was at least an ‘other arrangement’ under s 64 of the BIF Act. Further, the parties had agreed how the work would be valued.

Payment claim made after the reference date

CGC’s argument that the payment claim was made before the relevant reference date was rejected. CGC’s automated reminders to submit claims before the 25th, and the parties’ course of dealing, established a reference date of the 25th of each month. The payment claim was validly made in respect of the 25 August 2025 reference date on 29 August 2025.

Adjudicator entitled to consider late submission

The Court also rejected the challenge to the adjudicator’s consideration of further submissions lodged 24 minutes out of time. Her Honour held that s 84(2) of the BIF Act empowers an adjudicator to request further submissions and prescribe the timeframe for their provision, while s 84(4) confirms that an adjudicator’s power to decide an application is not affected by a party’s failure to make a submission within time. Unlike statutory time limits, such as those that apply to applications and responses, a deadline for further submissions set by the adjudicator is not jurisdictional. Whether late submissions are ‘properly made’ (and so able to be considered under s 88(2)) is for the adjudicator to decide, and by considering the late further submissions, the adjudicator implicitly decided they were properly made.

Clarke Energy (Australia) Pty Ltd v Alinta Energy Transmission (Roy Hill) Pty Ltd [2026] NSWSC 1124 (21 September 2026)

Andrew Hales | Sannan Tariq | Alison Hwang

Key takeouts

• A principal that asserts a time bar in correspondence may still waive it, for example by asking the superintendent to determine the claim on its merits or by its representatives indicating that a variation request will follow. A ‘no waiver’ clause does not prevent waiver by conduct and is itself capable of being waived by conduct.
• A principal’s ‘reserve power’ to extend time in its absolute discretion does not displace the prevention principle. That power must still be exercised honestly and fairly, unless the clause also states that the principal is under no obligation to extend, or to consider whether to extend, time.
• Private communications between a principal and the superintendent undermine the superintendent’s role. An unqualified contractual right to replace the superintendent cannot be used to prevent a determination the principal does not want; doing so destroys the parties’ contractual bargain.
• A superintendent does not ordinarily owe a sophisticated, well-resourced contractor a duty of care for pure economic loss. The contractor’s practical recourse lies in contractual claims against the principal, and not in a negligence claim against the superintendent for breach of duty of care.
• Where the contract requires extension of time (EOT) assessments to disregard whether the contractor can still meet the date for practical completion, the contractor owns the float. But loss of non-critical ‘activity float’ alone does not justify an EOT or delay costs; only delay to practical completion counts.
• A delay cost clause covering ‘reasonable additional costs and expenses directly incurred’ by the contractor as a result of the delay extends to the contractor’s overheads and usual margin. A principal wishing to exclude overheads or margin from delay cost recovery must include clear drafting to that effect.
• Care is required when drafting EOT and programming clauses. Delay assessment methodologies (such as time impacted analysis) should be defined, and parties should expect that a genuine, bona fide revision to the construction program may displace the original baseline for delay analysis, even if the work is not ultimately carried out in accordance with the revised program.

Facts

In May 2020, Alinta Energy Transmission (Roy Hill) Pty Ltd (principal) and Clarke Energy (Australia) Pty Ltd (contractor) entered into a $78 million engineering, procurement and construction contract (contract) to build a new 60MW gas-fired power station in Western Australia (project). The initial date for practical completion was 9 March 2022. The superintendent granted an EOT to extend that date to 20 April 2022.

The Project experienced substantial delays arising from, among other things, existing underground services, the impacts of COVID-19, work within an operational power station and the principal’s failure to make the electricity network available for testing and commissioning. The contractor submitted claims seeking EOTs, delay costs and variations. The principal rejected the contractor’s claims and sought to recover approximately $7.8 million in liquidated damages for delay.

In April 2023, the contractor commenced proceedings in the Supreme Court of New South Wales, seeking EOTs, delay costs, payment of the disputed variation and relief from liquidated damages. It also pursued alternative Australian Consumer Law and estoppel claims concerning the principal’s pre-contractual representations, and negligence claims against the 3 people who had fulfilled the role of superintendent.

Decision

Rees J found substantially in favour of the contractor, granting it a 142-day EOT from the 168.5 days the contractor claimed and $7,192,414 plus interest. Her Honour extended the date for practical completion from 20 April 2022 to 9 September 2022, which significantly reduced the principal’s entitlement to liquidated damages. In reaching that conclusion, her Honour made a number of significant findings concerning the party responsible for removal of the underground services, waiver, the prevention principle, superintendent independence, float ownership, delay costs and delay analysis methodology. The key findings are discussed further below.

Underground services

The Court held that the principal, rather than the contractor, was responsible for removing existing underground services and reinstating the affected areas. The drafting of the contract, the pre-contractual discussions between the parties, and the assumptions mentioned in the contractor’s tender supported the conclusion that the principal was obliged to remove the underground services. The principal’s failure to do so was a compensable cause of delay and formed the foundation of the contractor’s successful EOT and delay cost claims in respect of EOT 1 and its corresponding relief from liquidated damages.

Australian Consumer Law and estoppel claims

The Court rejected the contractor’s misleading or deceptive conduct and estoppel claims concerning the principal’s pre-contractual representations about removing underground services. However, the contractor succeeded in estoppel in relation to its variation claim. Having directed the contractor to relocate its site amenities and indicated that a variation proposal would be requested, the principal was estopped from relying on the contractual requirement for a written variation order.

Waiver by conduct

Although the contractor had not strictly complied with the procedural requirements under the contract for EOT 1, which concerned delays arising from the principal’s failure to remove existing underground services, the Court found that the principal had waived its right to rely on that failure through its own conduct. This was because the contractual regime for handling EOT claims had broken down entirely, with none of the required timeframes for determination of the EOT claims being met.

Further, by asking the superintendent to determine EOT 1 on its merits, the principal acted inconsistently with the position it had maintained throughout its correspondence that EOT 1 should have been rejected outright.

The Court also found that a clause requiring waiver to be in writing did not stop a waiver arising from the principal’s conduct and that the requirement itself could be waived by conduct.

The prevention principle

In the alternative to waiver, the contractor argued that the principal’s acts of prevention required it to exercise its discretion to extend time.

The Court found that the prevention principle was not excluded by a clause of the Contract giving the principal absolute discretion to extend time. Although the clause permitted the principal to grant an extension for any reason, it did not expressly provide that the principal was under no obligation to extend time, or even to consider whether an extension should be granted. As a result, the principal was required to exercise its discretion honestly and fairly, having regard to the prevention principle.

Her Honour considered that the early stages of the project were marked by acts of prevention by the principal and held that, had the contractor not succeeded on waiver, the principal would have been required to exercise its discretion to extend time.

Limits on replacing a superintendent

The Court held that the principal could not rely on its apparently unqualified contractual right to replace the superintendent so as to prevent a determination it considered unfavourable to its interests.

Her Honour found that the second superintendent’s private communications with the principal, and the principal’s subsequent decision to replace him after he indicated that he was minded to issue a certificate of practical completion, undermined the superintendent’s independent role and the parties’ contractual bargain. Although the Contract permitted the principal to replace the superintendent at any time, that power was required to be exercised consistently with the principal’s implied duty to cooperate and did not extend to removing a superintendent simply because he was going to make a determination favourable to the contractor. The Court relied on these findings in its waiver analysis as further evidence that the principal had not adhered to the contractual EOT regime.

Superintendent’s duty of care

The Court dismissed the negligence claims brought by the contractor against each of the 3 superintendents personally because the contractor was not ‘vulnerable’ in the relevant sense. The contractor was a sophisticated, well-resourced commercial party which had legal assistance in drafting and negotiating the contract. Further, the contract itself provided the contractor with contractual recourse if the superintendent failed to perform its role properly.

Float ownership

The Court found that on a proper construction of the contract, the contractor owned the float in its program because the contract required EOT assessments to disregard whether the contractor could still achieve practical completion by the contractual completion date without an extension. However, the loss of ‘activity float’ on a non-critical activity did not establish the contractor’s entitlement to an EOT or delay costs. The contractor still had to show an actual delay to practical completion, since the contract’s EOT and delay costs provisions were tied to delay on the critical path to practical completion.

Delay costs include overheads and margin

The parties disputed the scope of a clause in the contract requiring the principal to pay the contractor ‘the reasonable additional costs and expenses directly incurred’ by the contractor as a result of compensable delay. In contrasting that formulation for a delay costs entitlement with different drafting considered in other judgments, the Court rejected the principal’s narrower interpretation that this wording was limited only to the contractor’s actual bare costs. 

Her Honour concluded that where a delay was caused by an event the contractor did not cause and could not have avoided, it was commercially unrealistic to expect the contractor to pass on its costs to the principal without also recovering its overhead costs and usual margin under the wording of the delay costs clause considered in this case. On that basis, the Court allowed the contractor’s claimed labour rates (inclusive of margin), a 15% contractor margin on flights, accommodation, and equipment hire, and the cost of extending bank guarantees.

Extension of time and delay costs methodology

The Contract required the effects of an ‘extension event’ to be assessed using a ‘time impacted analysis’ but did not define that term. The Court adopted the description in the Society of Construction Law’s Delay and Disruption Protocol, which explains that time impacted analysis assesses the effect of a delay event using a prospective approach, assessing the effect of the delay event on the contractor’s intentions for the future conduct of the work, in light of the progress actually achieved at that time.

The Court further held that a genuine revision to the construction program may show that an earlier baseline program was not reasonable, achievable, or appropriate. In such a case, the baseline program was not to be relied on for a time impacted analysis, regardless of whether the work was ultimately carried out in accordance with the revised program. Here, the revision remained in place for 6 to 12 months and followed safety workshops and consultation with the principal, rather than being made to inflate the effect of a delay event.

Practical implications

For principals, the decision highlights the importance of administering contracts consistently with the positions taken under them. Principals should be cautious when relying on contractual time bars, refusing to exercise discretionary EOT powers, or interacting with superintendents, as conduct may undermine otherwise available contractual rights.

For contractors, the decision demonstrates that relief may still be available notwithstanding non-compliance with contractual procedures where a principal’s conduct is inconsistent with strict enforcement. The case also reinforces the importance of carefully documenting delay events, variation instructions and the factual basis for EOT and delay cost claims.

CJM Innotrack Pty Ltd v Liang & Wang [2022] QCAT 53

Andrew Orford  |  Matt Hammond  |  Nikole Rabeling

Lanskey Constructions Pty Ltd v Westrac Pty Ltd [2022] WASC 90

Tom French |  Penny Bond |  Conor McCavana

Building and Other Legislation Amendment Bill 2022 (Qld)

Michael Creedon  |  Zariyah Ahmed

Niclin No 1 Pty Ltd v Lambert 66 Pty Ltd  [2022] QDC 45

Andrew Orford  |  Allie Flack  |  Eva Squire

Renbar Constructions Pty Ltd v Sader [2022] NSWSC 172

Andrew Hales  |  Laura-Rose Lynch  |  William Vu

Forte Sydney Construction Pty Ltd v N Moit & Sons (NSW) Pty Ltd [2021] NSWDC 673

Andrew Hales  |  Maciej Getta  |  Taris Watson

Equa Building Services Pty Ltd v A&H Floors 2 Doors Australia Pty Ltd [2022] NSWSC 152

Andrew Hales  | Karen Hanigan  |  Lauren Topper

Cosmo Cranes & Rigging Pty Ltd v EQ Constructions Pty Ltd [2022] NSWDC 6

Andrew Hales | Jessica Nesbit  |  Tony Issa

EQ Constructions Pty Ltd v A-Civil Aust Pty Ltd [2021] NSWSC 1604 and

Iridium Developments Pty Ltd v A-Civil Aust Pty Ltd [2021] NSWSC 1601

Andrew Hales | Karen Hanigan | Alexander Mastrovangelis

Equa Building Services Pty Ltd v KLG Trading Pty Ltd [2021] NSWSC 1674

Andrew Hales  | Maciej Getta  |  Cedric Barakat

The Estate of Sikos v TBPL1 Pty Ltd [2021] NSWSC 1523

Andrew Hales  |  Sophie Wallwork |  Tom Lawler

Ventia Australia Pty Ltd v BSA Advanced Property Solutions (Fire) Pty Ltd [2021] NSWSC 1534

Andrew Hales  |  Tom Kearney  |  Isobel Carmody

V601 v Probuild [2021] VSC 849

Nikki Miller  |  Tom Kearney  |  Alice Tyson

Panel Concepts Pty Ltd v Tomkins Commercial & Industrial Builders Pty Ltd [2021] QDC 322

Sarah Ferrett  | Sarah Cahill  |  Nikole Rabeling

HongKong Henson Industrial Limited v Victorian Ferries Pty Ltd [2021] FCA 1450

Andrew Orford  |  Petrina Macpherson  |  Gemma Galloway

Built Qld Pt Ltd v Pro-Invest Australian Hospitality Opportunity (ST) Pty Ltd (No 2) [2021] QSC 301

Michael Creedon  |  Megan Sharkey  |  Oliver Waddingham

Meechan v Savco Earthmoving Pty Ltd [2021] QCA 264

Michael Creedon  |  Allie Flack  |  Oliver Waddingham

The Owners – Strata Plan No 87060 v Loulach Developments Pty Ltd (No 2) [2021] NSWSC 1068

Andrew Hales  |  Maciej Getta  |  Jenny Cohen

Crown Green Square Pty Ltd v Transport for NSW [2021] NSWSC 1557

Andrew Hales  |  Tom Kearney  |  Isobel Carmody

Santos Limited v Fluor Australia Pty Ltd & Anor [2021] QCA 204

Andrew Orford  |  Matt Hammond  |  Oliver Waddingham

Santos Limited v Fluor Australia Pty Ltd & Anor (No 3) [2021] QSC 281

Michael Creedon  |  Matt Hammond  |  Oliver Waddingham

Cairns Building and Construction Pty Ltd ATF P&T Kelly Trust t/as Phil Kelly Builders v Kaminaras & Anor [2021] QCAT 374

Michael Creedon  |  Clare Turner  |  Gemma Galloway

Cheshire Contractors Pty Ltd v Civil Mining & Construction [2021] QCA 212

Julie Whitehead  |  Allie Flack  |  Oliver Waddingham

Bothar Boring and Tunnelling (Australia) Pty Ltd v Ausipile Pty Ltd [2021] QCA 226

Sarah Ferrett  |  Matt Hammond  |  Gemma Galloway

Ventia Australia Pty Ltd v BSA Advanced Property Solutions (Fire) Pty Ltd [2021] NSWSC 1534

Andrew Hales  |  Tom Kearney  |  Isobel Carmody

Total Lifestyle Windows Pty Ltd v Aniko Constructions Pty Ltd (No 2) [2021] QSC 231; Total Lifestyle Windows Pty Ltd v Aniko Constructions Pty Ltd (No 3) [2021] QSC 238

Sarah Ferrett  |  Hazal Gacka  |  Gemma Galloway

Day v Quince’s Quality Building Services Pty Ltd [2021] NSWCATAP 296

Andrew Hales  |  Claire Laverick  |  Tony Issa

Paolucci v Makedyn [2021] NSWCA 215

Andrew Hales  |  Nicholas Grewal  |  Jonin Ngo

Ausipile Pty Ltd v Bothar Boring and Tunnelling (Australia) Pty Ltd [2021] QCA 223

Sarah Ferrett  |  Tom Kearney  |  Isobel Carmody

Russell Consolidated Pty Ltd v Russell Noble Constructions Pty Ltd [2021] WASC 155

Tom French  |  Candice Lamb  |  Ljubica Petrovic

North Queensland Pipeline No 1 Pty Ltd v QNI Resources Pty Ltd [2021] QSC 190

Julie Whitehead  |  Sarah Cahill  |  Tia Shadford

Tower Cranes International Pty Ltd v Boland Cranes Pty Ltd [2021] QDC 183

Michael Creedon, Alexandria Hammerton, Mikayla Colak

Sentinel Springwood Retail Pty Ltd & Ors v Tomlinson & Ors [2021] QDC 159

Michael Creedon, Luke Trimarchi, Daniel Szabo

Equinox Construction Pty Ltd v Henning & Anor [2021] QSC 223

Andrew Orford, Matt Hammond, Charlotte Lane

Enco Precast Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union & Ors [2021] ICQ 15

Samantha Betzien, Allie Flack, Daniel Szabo

CMC Property Pty Ltd & Ors v Rankin Investments (Qld) Pty Ltd & Anor [2021] QCA 173

Andrew Orford, Sam Rafter, Mikayla Colak

Jandson Pty Ltd v James [2021] NSWCATAP 274

Andrew Hales, Adriaan van der Merwe, Jack McFadden

Howell v Talevski [2021] NSWSC 1133

Andrew Hales, Laura-Rose Lynch, Tom Dearden 

B & W Windows (Residential) Pty Ltd v Sibilia [2021] NSWCATAP 271

Andrew Hales, Maciej Getta, Jonathan Molina

Punton’s Shoes Pty Ltd v Citi-Con (Vic) Pty Ltd  [2020] VSC 514

Peter Wood, Tom Kearney, Henry Chesterman

Goldwind Australia Pty Ltd v ALE Heavylift (Australia) Pty Ltd [2021] VSC 625

Nikki Miller, Tom Kearney, Alice Tyson

Liberty Mutual Insurance Company Australian Branch t/as Liberty Speciality Markets v Icon Co (NSW) Pty Ltd [2021] FCAFC 126

Andrew Hales, Emily Miers, Paige Freeman

Bellini v Meldan (Vic) Pty Ltd (Building and Property) [2021] VCAT 833 

Jeanette Barbaro, Tom Kearney, Michelle Yu

Bingo Holdings Pty Ltd v GC Group Company Pty Ltd [2021] NSWCA 184

Andrew Hales, Amy Ryan, Will Ryan

Rankin Investments (Qld) Pty Ltd & Anor v CMC Property Pty Ltd & Ors [2021] QCA 156

by Andrew Orford, Sam Rafter, Mikayla Colak

Queensland Building Services Authority v Samimi & another [2021] QDC 112

by David Pearce, James Knell, Tia Shadford

Bandelle Pty Ltd v Sydney Capitol Hotels Pty Ltd [2020] NSWCA 303

by Andrew Hales and Duncan MacKenzie

Schneider v Queensland Building and Construction Commission [2021] QCA 155

by David Pearce, Hazal Gacka and Charlotte Lane

Lendlease Engineering Pty Ltd v Owners Corporation No.1 & Ors [2021] VSC 338

by Jeanette Barbaro, Tom Kearney and Courtenay Wood

Building and Construction (Security of Payment) Act 2021 (WA)

by Sophie Wallwork

Design and Building Practitioners Regulation 2021 (NSW), Design and Building Practitioners Amendment (Miscellaneous) Regulation 2021 (NSW) and Building Legislation Amendment Act 2021 (NSW)

by Andrew Hales, William Vu

Valmont Interiors Pty Ltd v Giorgio Armani Australia Pty Ltd [2020] NSWCA 90

by Andrew Hales, Claire Laverick, Naomi Graham

Meechan v Savco Earth Moving Pty Ltd [2021] QDC 14

by Michael Creedon, Allie Flack, Isabella Impiazzi

Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2021]SASCA 8

by James Kearney, Daina Marshall, Jack Eccleston

Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021

by Michelle Yu

Growthbuilt Pty Ltd v Modern Touch Marble & Granite [2021] NSWSC 290

Andrew Hales, Michelle Knight, Will Ryan

Ausipile Pty Ltd v Bothar Boring and Tunnelling (Australia) Pty Ltd  [2021] QSC 39

by Sarah Ferrett, Matt Hammond, Tia Shadford