When Does an Extension of Time Get Judged? A Review of Clarke Energy (Australia) Pty Ltd v Alinta Energy Transmission (Roy Hill) Pty Ltd
Most commentary on extension of time disputes asks two questions. Did the contractor give the right notice? Did the superintendent do its job?
Those are the right questions. There is a third that gets far less attention: what evidence will the court use to measure the delay?
A recent New South Wales decision gives a clear answer.
The Case
In Clarke Energy (Australia) Pty Ltd v Alinta Energy Transmission (Roy Hill) Pty Ltd [2026] NSWSC 1124, the Supreme Court of New South Wales dealt with a dispute over a power project in Western Australia, decided under Western Australian law. The contractor faced underground services the principal had said would be removed before it arrived, COVID-19 impacts, work inside an operating power station and problems getting network access for commissioning.
The project went through three superintendents. The first took around 200 days to determine an EOT submission. The second was replaced after privately indicating he was considering certifying practical completion. The third dealt with the outstanding claim.
What the court said
Three points stand out.
The contractor had not complied with every step of the EOT process, including giving its claim to the superintendent. The principal was found to have waived that requirement by departing from the agreed process and letting a later superintendent decide the claim on its merits.
Delay events caused by the principal were found to have affected the critical path, entitling the contractor to substantial extensions of time claims.
Entitlement may call for a prospective assessment, made at the proximate time of the delay event. Where the superintendent did not properly determine the extension of time claim at the proximate time of the delay event, the actual impact of the delay event will probably be examined retrospectively, against what happened on the project.
Why the third point matters
Prospective assessment asks what a delay event was likely to do to the programme at the time. Retrospective assessment asks what it did.
The two can give very different answers. A forecast impact of 60 days can become 20 actual days once the contractor mitigates the delay, or 120 once the delays adverse effects unfold.
If a superintendent does not assess an EOT claim when the delay occurs, a prospective assessment will probably be inappropriate. The decision suggests a court must then look at the as-built record instead.
That changes which evidence wins.
A clever forecast carries less weight than a reliable record of what happened.
What this means for expert evidence
Where an assessment of an entitlement to an extension of time is asked after the fact, the accepted method of analysis is retrospective.
This is widely accepted in Australia as the de-facto method of delay analysis after the fact.
This approach is supported by V601 Developments Pty Ltd v Probuild Constructions (Aust) Pty Ltd [2021] VSC 849. Where the contract did not prescribe a delay-analysis methodology, the Supreme Court of Victoria preferred a retrospective analysis grounded in the project’s actual progress rather than a prospective model based on what was forecast to occur.
The reasoning in V601 v Probuild reinforces the distinction drawn in this article.
“A contemporaneous assessment may properly ask what an event was then likely to do to the critical path; once the dispute is determined after completion, however, the as-built sequence and the delay experienced provide evidence evidence of causation and impact (cause and effect).”
The case also shows why the method must follow the contractual question and the available evidence. The expert should test the contemporaneous programmes against actual progress, identify the delays that affected the critical path, and account for mitigation, acceleration and contractor-caused delay. A retrospective analysis is not hindsight used to reconstruct an entitlement; it is an assessment of what the records show delayed the works.
The decisions in V601 v Probuild and Clark Energy v Alinta also emphasise that the superintendent must exercise independent judgment when performing assessment and certification functions.
In V601, the Project Manager’s (Superintendent’s) cooperation with the principal in managing and resisting Probuild’s claims, including seeking input on draft assessments, compromised that independence. InClarke Energy, Rees J reaffirmed the expectation that a superintendent acting independently as assessor or certifier would act fairly and without bias; the circumstances included Alinta replacing a superintendent after he privately indicated that he was considering certifying practical completion. Both cases illustrate how principal involvement can undermine independent contract administration.
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Andrew McKenna examines how courts assess extension of time claims, exploring prospective versus retrospective delay analysis, superintendent independence and critical path evidence.