Time Bar in Construction: What You Need to Know

Time bars set strict deadlines for claims in construction contracts. Miss one, and you could lose your right to extra time or costs—no exceptions. In Australia, courts enforce them strictly, making them a high-risk factor for project owners and contractors.

Let’s breaks down what time bars are, how they appear in contracts, and what happens when claims are time barred.

What is a Time Bar in Construction?

A time bar is a contract rule that sets a strict deadline for submitting claims, like extension of time (EOT) requests or variation claims. Missing the deadline means being time barred. The claim is automatically rejected, with no exceptions.

Time bars are common in Australian construction contracts, especially AS 4000 and AS 2124. This is particularly important for variation claims, where contractors must meet strict notice requirements to secure payment.

Key features of time bars include:

• Fixed Deadlines: Claims must be submitted within a set timeframe, usually between 7 to 28 days, depending on the contract.
• No Exceptions: Once the deadline passes, the right to claim is lost—unless the contract allows some flexibility.
• Risk on the Claiming Party: Contractors and subcontractors bear the responsibility of tracking deadlines and submitting notices correctly.
• Enforceability: Australian courts generally uphold time bars unless they are deemed unfair or ambiguous.

Learn more about how variations work with our guide: Variation in Construction.

What Does It Mean to Be Time Barred?

The meaning of being time barred is losing the right to claim because a required notice wasn’t submitted on time. If a contract requires a delay notice within 14 days and a contractor submits it late, the claim is invalid—regardless of the circumstances.

Time bars typically apply to EOT, variation, and cost claims. Contractors who miss deadlines often have no legal recourse and may have to absorb unexpected costs. For project owners, enforcing time bars prevents claim backlogs and project disruptions.

While they can feel unfair, time bars serve a purpose:

• Help project owners manage risks by ensuring claims are raised within a reasonable timeframe.
• Reduce delays by addressing potential disruptions early.
• Prevent last-minute claims that could complicate project timelines and budgets.

What Do Time Bars Look Like?

Some contracts impose softer notice requirements, while others include hard time bars that completely extinguish a claim if notice is late. Understanding the wording of these clauses is crucial, as a small difference in language can determine whether a claim is valid or automatically rejected.

Here's how they appear in two standard Australian contracts:

AS 4000 – Clause 34.2: Notice of Delay

This clause requires parties to promptly notify the superintendent in writing of any delays:

"A party becoming aware of anything which will probably cause delay to the work... shall promptly, and in any event, within 5 business days, give... written notice of that cause and the estimated delay."

While this clause mandates timely notification, it doesn't automatically invalidate claims if the notice is late. Instead, the principal must demonstrate that the delay caused them loss or that they would have acted differently if informed on time.

AS 2124 – Clause 46.1: Prescribed Notice

This clause imposes a stricter time bar:

"The Principal shall not be liable upon any claim by the Contractor in respect of any matter arising out of or in connection with the Contract... unless the Contractor has made a claim in writing to the Superintendent not later than 28 days after the first day upon which the Contractor could reasonably have been aware of the claim."

Here, failure to submit a claim within the specified timeframe results in the contractor losing the right to that claim, regardless of merit.

Typical Time Bar Clause

A standard time bar clause might state:

"If the Contractor does not give to the Superintendent, within the requirements of the contract, any claim or notice within 14 days of the Contractor becoming aware of the circumstances giving rise to the claim or notice, the Contractor shall not be entitled to the claim or to any claim arising from those circumstances."

This explicit language ensures that all parties understand the importance of adhering to specified timelines to maintain their contractual rights.

Examples of Time Bars in Construction Contracts

Time bars apply to different types of claims in construction contracts. Here are common examples where missing a deadline can have serious consequences.

1. Extension of Time (EOT) Claims

Contracts often require contractors to submit a delay notice within 10 to 14 days of becoming aware of an issue. If they miss this deadline, they lose the right to claim extra time, even if the delay was outside their control.

💡 Example: A contractor on a commercial project experiences severe weather delays. The contract states that an EOT claim must be submitted within 10 days, but the contractor submits it on day 12. The principal rejects the claim, leaving the contractor responsible for liquidated damages.

2. Variations to the Contract

If a contractor performs additional work beyond the original contract scope, they must submit a variation request within a set period—often 28 days from when the change occurs. If they miss the deadline, they forfeit their right to extra payment.

💡 Example: A project manager instructs a contractor to install upgraded materials. The contractor completes the work but forgets to lodge a variation claim within the required timeframe. The principal refuses to pay for the extra cost, citing the time bar clause.

3. Defects Liability Period

Subcontractors must report defects within the defects liability period, usually 6 to 12 months after project completion. If they fail to notify the principal within this timeframe, the responsibility for repairs may fall on them instead of the original contractor.

💡 Example: A subcontractor discovers a defect in their installed work but waits too long to report it. The defects liability period expires, and the principal holds the subcontractor liable for fixing the issue at their own expense.

Time bars in construction contracts are strict. Missing a deadline—even by a single day—can mean absorbing unexpected costs or delays with no legal recourse.

Consequences of Missing a Time Bar

Missing a time bar deadline can have serious consequences. In most cases, the claim is automatically invalid, no matter how legitimate it may be. Once a deadline passes, there is usually no option to appeal or negotiate—it’s simply lost.

For Contractors

Contractors bear the biggest risk when failing to comply with time bars. Consequences include:

• Loss of entitlement: The claim is automatically rejected, even if the delay or variation was justified.
• No legal recourse: Courts generally enforce time bars as written, meaning contractors have little to no ability to challenge a missed deadline.
• Unexpected financial loss: Contractors may have to cover additional costs, such as extended labor, material price increases, or penalties for project delays.
• Weakened negotiating position: Missing a deadline removes leverage in contract discussions, limiting the contractor’s ability to recover costs.
• Reputation damage: Repeated failures to submit claims on time can harm relationships with project owners and reduce future contract opportunities.

For Project Owners

While time bars provide control over claims, enforcing them too aggressively can have downsides for project owners:

• Stronger control over claims: Time bars limit late or unsubstantiated claims, keeping project costs predictable.
• Reduced risk of disputes: Enforcing deadlines ensures claims are addressed early, preventing drawn-out negotiations and legal battles.
• Faster project resolution: Time bars prevent unresolved claims from delaying project completion.
• Potential legal risk: If a contract is overly strict or time bars are enforced unfairly, courts may consider it a breach of good faith, opening the door to legal challenges.
• Strained contractor relationships: Overly rigid enforcement may discourage contractors from working on future projects, especially if they feel the time bar was used unfairly to reject legitimate claims.

Are Time Bars Enforceable in Australia?

Yes, Australian courts generally uphold time bar clauses in construction contracts, provided they are clear and unambiguous.

However, their validity can be influenced by several factors:

1. Unfair Contract Terms Legislation

Since November 2016, the Australian Consumer Law's unfair contract terms regime has applied to "small business contracts," including those in the construction industry. This regime renders any "unfair" clause in such contracts void.

Additionally, amendments to the Building and Construction Industry (Security of Payment) Act 2021 in Western Australia empower adjudicators to deem time bar clauses unfair and unenforceable in specific circumstances.

2. Estoppel and Waiver

Courts may refuse to enforce time bar clauses if it's deemed unconscionable to do so.

For instance, in Valmont Interiors Pty Ltd v Giorgio Armani Australia Pty Ltd (No 2) [2021] NSWCA 93, the New South Wales Court of Appeal found that Armani's conduct led Valmont to assume strict compliance with the time bar wasn't necessary, resulting in estoppel preventing Armani from enforcing the clause.

3. Interaction with Statutory Rights

Time bar clauses cannot override statutory rights. In Brighton Australia Pty Ltd v Multiplex Constructions Pty Ltd [2018] VSC 246, the Victorian Supreme Court held that a contractual time bar couldn't prevent a claim under the Australian Consumer Law for misleading or deceptive conduct, as the statutory limitation period was six years, contrasting with the contract's seven-day requirement.

4. Contractual Ambiguities

Ambiguities in the drafting of time bar clauses can affect their enforceability. In V601 Developments Pty Ltd v Probuild Constructions (Aust) Pty Ltd [2021] VSC 849, the court interpreted the time bar clause in a manner that allowed the contractor's extension of time claims, highlighting the importance of clear and precise drafting.

5. Jurisdictional Variations

The enforceability of time bar clauses can vary between jurisdictions. In common law systems like Australia, clearly drafted time bars are generally enforced, whereas civil law systems may approach them differently.

Best Practices for Managing Time Bars

Time bars are strict, but they don’t have to be a problem. With the right approach, project owners and contractors can manage them effectively, reduce disputes, and ensure claims are handled properly.

For Project Owners & Managers

• Set Clear Expectations: Before work begins, ensure all contractors and subcontractors understand the time bar clauses. Clearly outline deadlines for notices and claims, and reinforce their importance in pre-start meetings and contract negotiations.
• Monitor Compliance: Use project management software or contract register tools to track deadlines and send automated reminders. A missed claim is often due to oversight rather than negligence, and simple tracking can prevent costly disputes.
• Allow Reasonable Deadlines: Overly strict time bars can create unnecessary conflict. If deadlines are too short, contractors may struggle to comply, leading to unfairly rejected claims. Consider reasonable timeframes that allow proper documentation while maintaining project control.
• Be Open to Discussion: While enforcing time bars is important, automatically rejecting claims can strain relationships and lead to disputes. If a claim is late but has merit, consider whether a practical resolution benefits the project more than rigid enforcement.

For Contractors

• Know Your Deadlines: Every contract has different time bar clauses. Before starting work, identify the specific deadlines for submitting notices related to delays, variations, and cost claims. Keep a reference document or tracking system to avoid missing key dates.
• Submit Notices Early: If a delay, contract variation, or unexpected cost arises, notify the superintendent or project manager immediately. A short, initial notice within the deadline keeps the claim valid while you prepare full documentation.
• Keep Detailed Records: Maintain clear records of delays, site conditions, instructions, and changes. If a dispute arises, written evidence of compliance with time bars can strengthen your position. Relying on verbal discussions or assumptions can put claims at risk.
• Follow the Right Process: A claim submitted late is one problem, but a claim submitted incorrectly can also be rejected. Ensure notices and claims meet contract requirements.

Final Thoughts on Time Bars

Time bars in construction contracts are strict, and missing a deadline can have costly consequences. Whether you're a contractor submitting a claim or a project owner enforcing one, understanding and managing time bars is critical to avoiding disputes and financial setbacks.

Time bars are more than contract clauses. They affect project risk, cash flow, and dispute management. Staying ahead of deadlines ensures smoother operations and better financial control while preventing costly disputes.