Concurrent Delay: Common sense and facts over theory
Concurrent delay - where two or more causes of delay overlap - remains one of the most complex issues in construction projects.
Two landmark Australian cases, Chocolate Factory Apartments Pty Ltd v Westpoint Finance Pty Ltd (1998) 14 BCL 61 and J W Armstrong Constructions Pty Ltd v Council of the Shire of Cook [1994] QSC 25, continue to influence how courts and practitioners approach this challenge. Their principles resonate strongly in modern standard forms such as AS4000 and FIDIC.
Common-Sense Causation: Chocolate Factory Apartments
In Chocolate Factory, the court faced a scenario involving owner-caused, contractor-caused, and neutral delays. Rather than applying rigid formulae, the judgment emphasied common-sense causation. If the owner’s delay materially contributed to overall delay, the contractor was entitled to an extension of time (EOT), even if other delays existed. However, cost recovery required proof that the owner’s delay was the dominant cause of financial impact. The case reinforced the prevention principle: an owner cannot enforce liquidated damages for periods they contributed to.
Facts Over Theory: Armstrong
Armstrong confirmed that concurrency is fact sensitive. Courts reject theoretical concurrency arguments and instead focus on real-world impact. Where both parties contribute to delay, time relief is often granted to avoid unfair penalties, but cost entitlement depends on clear causation evidence. The decision underscores that concurrency outcomes turn on evidence and fairness, not abstract rules.
Contract Examples
AS 4000 (Australian Standard)
Extension of Time (Clause 34):
AS 4000 allows EOT for “qualifying causes of delay” (QCOD), which include Principal-caused delays and certain neutral events such as latent conditions or statutory directions.
Delay Costs:
Delay costs are recoverable only for “compensable causes” (CC), typically Principal risk events.
Concurrency Treatment:
AS 4000 does not expressly define concurrency. In practice, if an owner-caused delay overlaps with contractor delay, the contractor usually gets time (EOT) but not money for the concurrent period. This reflects the Chocolate Factory principle—fairness and prevention prevail, but cost recovery requires dominant causation.
Example:
If variation delays work by 10 days while the contractor also suffers a 10-day delay due to resource shortages, the contractor will likely receive an EOT for 10 days but no delay costs for that period.
FIDIC (International Standard)
Clause 8.5 (Extension of Time):
FIDIC 2017 explicitly addresses concurrency: the Engineer must assess EOT “if and to the extent completion is or will be delayed” by Employer risk events.
Money Claims:
Recovery of cost requires satisfying the “but for” test—if contractor delay also contributed, cost entitlement may fail even if time is granted.
Example:
Under FIDIC Red Book, if Employer-caused delay overlaps with contractor delay, the Engineer may grant EOT but deny cost recovery unless the Employer delay alone caused the expense.
Risk Allocation:
Parties often include bespoke concurrency clauses. Courts uphold these, as seen in UK cases like North Midland Building Ltd v Cyden Homes Ltd, reinforcing contractual freedom to allocate concurrency risk.
Key Takeaways
There are no strict rules, with Australian courts avoiding rigid doctrines like “first-in-time” or “dominant cause” in favour of practical analysis.
EOT vs Cost: Contractors generally receive time for owner-caused delay even if concurrent, but cost recovery is limited unless causation is proven.
Fairness prevails: Owners cannot claim liquidated damages for periods they contributed to.
Modern relevance: AS 4000 and FIDIC reflect these principles—granting time for concurrency while restricting cost recovery without clear causation.
Conclusion
These cases remain highly relevant. They remind practitioners that concurrency disputes hinge on evidence, critical path analysis, and contractual clarity. For project managers and lawyers, the lesson is clear: document delays meticulously and draft concurrency clauses with precision.
At Accura Consulting, our team of experts work with clients to create a tailored solution to problems. If you have an issue and want expert support, get in touch.
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