March 10, 2025
With Cyclone Alfred having passed through southeast Queensland, builders across the region will likely feel the effects and delays caused by the serious weather event. The severe conditions marked by heavy rainfall, flooding and damaging winds, will have caused disruptions across construction sites, with many projects halted and supply issues arising due to supply chain disruptions.
As with any major weather event, contractors must act promptly to assess and address the immediate impacts while also plan for long-term recovery. As the weather clears, understanding your rights and obligations under your contract is crucial to ensure that delays, disruptions and damages are properly managed, and liability can be limited.
Possible Impacts
Contractors must carefully assess both the short and long-term impacts of the extreme weather on their project, which may include:
- actual damage to equipment and/or the site and the need to clear debris;
- equipment becoming bogged or dangerous due to saturated site conditions and pooling water;
- existing defects worsening or new ones arising;
- decreased productivity delaying the project;
- work stoppages due to unsafe working conditions; and
- supply chain disruptions and material shortages.
It is important that contractors proactively assess the damages they are facing, plan appropriately and communicate clearly with the principal.
Rights Under Your Contract
Contractors should review the terms of their contract to understand what options are available to them. The allocation of risk in a contract determines who will be exposed to the time and/or cost implications associated with extreme weather events.
Time
Cyclone Alfred may have caused significant project delays due to work stoppages, site inaccessibility or damage to materials and equipment. Delay on a project may expose the contractor to liquidated damages which can significantly reduce the profitability of the project. Contractors should therefore look to claim time delay by way of an Extension of Time (EOT) under their contract.
When reviewing a contract, contractors should seek to identify the following:
- Inclement Weather – some contracts expressly allow for an EOT due to adverse weather and will define what constitutes inclement weather;
- Force Majeure – some contracts may entitle the contractor to time relief for extraordinary events beyond their control;
- Qualifying cause of delay – standard form contracts will include a definition of what constitutes a qualifying cause of delay, allowing a contractor to claim an EOT.
Qualifying causes of delay vary based on the form of contract used and any amendments made. Generally, under unamended standard form contracts, the following amount to qualifying causes.
| Standard Form | Clauses | Qualifying Delays | Notice Requirements |
| AS 4000 | a. Definition of ‘qualifying cause of delay’;
b. Subclause 34.2 and 34.3 |
Any act, default or omissions of the Superintendent, the Principal or its consultants, agents or other Contractors or other than:
i. A breach by the Contractor; or ii. Industrial conditions or inclement weather occurring after the dated for practical completion. |
A written notice of the delay within 28 days of the Contractor becoming aware of the causation occurring. The notice must evidence the facts of the delay. |
| AS 2124 | Subclause 35.5. | Events occurring on or before practical completion which are beyond the reasonable control of the Contractor, including:
i. Industrial actions; or ii. Inclement weather.
|
A written notice of the delay within 28 days of the Contractor becoming aware of the causation occurring. The notice must evidence the facts of the delay. |
| AS 4300 | Subclause 35.5 | Events occurring on or before practical completion which are beyond the reasonable control of the Contractor, including:
iii. Industrial actions; iv. Inclement weather.
|
A written notice of the delay within 28 days of the Contractor becoming aware of the causation occurring. The notice must evidence the facts of the delay. |
| AS 4902 | a. Definition of ‘qualifying cause of delay’;
b. Subclause 34.3 |
Any act, default or omissions of the Superintendent, the Principal or its consultants, agents or other contractors or other than:
iii. A breach by the Contractor; or iv. Industrial conditions or inclement weather occurring after the dated for practical completion. |
A written notice of the delay within 28 days of the Contractor becoming aware of the causation occurring. The notice must evidence the facts of the delay. |
Cost
While an EOT may grant relief from liquidated damages, it does not necessarily entitle the contractor to recover additional costs incurred due to delays. Many contracts follow a “time but no cost” approach, meaning that while contractor may receive extra time to complete the project, they must bear the financial burden of the delay.
However, there are some circumstances where a contractor may be entitled to claim additional costs. When reviewing their contract, contractors should look for:
- Latent Condition clauses – if the cyclone has created a latent condition, additional works may be required that were not contemplated at the time of contracting. The contract may allow cost recovery for these latent conditions;
- Principal-directed variations – if the principal directs the contractor to undertake additional work to address weather-related damages or site remediation, these variations may be claimable;
- Cost escalation clauses – some contracts may include a cost escalation clause, entitling contractors to recover increased costs from disruptions to supply chains including material shortages and price increases.
Considerations for Contractors
Contractors should take a proactive and organised approach to managing delays arising from Cyclone Alfred to best position themselves to successfully claim under the contract. This includes:
- Reviewing the contract to identify relevant clauses allowing for a claim for time or cost, any notice requirements and timeframe for submitting claims and any pre-conditions for such relief (i.e. proving the impact on the project’s critical path);
- Maintain detailed records of any damage or delay that will support your claim; and
- Promptly notify the Principal of any delay or disruption.
Lamont Project & Construction Lawyers
The Lamont Project & Construction Lawyers team has extensive knowledge of when and how contractors may make a claim under their contract. With this knowledge and expertise, Lamont Project & Construction Lawyers can provide the required support and advise on matters of project delay and disruption as a result of severe weather events.
If you would like to discuss any matters raised in this article as it relates to your specific circumstances, please contact Lamont Project & Construction Lawyers.
The content of this article is for information purposes only and does not discuss every important topic or matter of law, and it is not to be relied upon as legal advice. Specialist advice should be sought regarding your specific circumstances.
Contact: Peter Lamont or Kathryn Easton
Email: [email protected] or [email protected]
Phone: (07) 3248 8500
Address: Suite 2, Level 2, 349 Coronation Drive, Milton Qld 4064
Postal Address: PO Box 1133, Milton Qld 4064