JCT contract] are not related to the determination of whether a relevant event has caused the delay in the completion date, but to exercise of a fixing of a new date once causation has already been determined. Of course it must be recognised that ultimately the starting point of such an exercise must be what the contract provides by way of the extension of time mechanism.
In other words, the authors of Hudson’s consider that once a delay is determined to be caused by the principal, the contractor is entitled under the JCT to the “fair and reasonable” EOT from that delay and so no consideration should be given to any other delay (including those caused concurrently by the contractor).
Returning to NZS 3910, the words “fairly entitled” seem to us to be open to the application of either the apportionment approach under City Inn or the English full EOT approach. However, we expect that the New Zealand courts would most likely follow the English cases and allow a full EOT on the basis that there is an inherent unfairness to reducing an otherwise permissible EOT allowance. In addition, we are persuaded by the Hudson reasoning that “fairly” relates to an assessment of the appropriate quantity of an EOT rather than permitting an investigation by the Engineer into other causes of delay.
However, in the right case of a contractor behaving poorly, the courts might be attracted to an apportionment where a full EOT was not “fair” on the whole. Such an argument seems at least tenable under NZS3910 – although the weight of English authority and the authors of Hudson’s would be on the other side.
Janine Stewart is a Partner at Minter Ellison Rudd Watts based in Auckland NZ.
Janine is an experienced construction and property lawyer having advised on numerous complex construction projects and disputes in New Zealand. She has appeared in arbitration, the High Court and the Court of Appeal. Janine provides expert legal advice and dispute resolution services in all aspects of construction and commercial property disputes. Plus she advises clients on various general commercial issues.
Rob Harris is a Senior Solicitor in Minter Elliison Rudd Watts' Auckland Construction law team