Why Courts Expect a Logical and Factual Delay Analysis
When delay claims reach court, one question dominates: what truly caused the delay, and can it be proved?
In V601 Developments v Probuild, Justice Digby set the benchmark. He explained that once a project is complete, delay must be assessed by looking at what actually happened on site, not what might have happened. As he put it, delay should be analysed “retrospectively, utilising the as built facts, to ascertain how the works were actually constructed and actually delayed.”
That observation reshaped how delay experts, lawyers, and contract administrators now prove cause and effect in construction disputes.
From Theory to Reality
The dispute arose from a large residential and commercial project in Victoria. V601 Developments was the principal. Probuild was the contractor. When the project overran, Probuild claimed extensions of time and delay costs. V601 rejected those claims and sought liquidated damages.
By the time the matter reached the Supreme Court, the project was finished. Both sides had appointed experts, but their approaches were completely different.
V601’s expert used a forward-looking time impact analysis that modelled what might have occurred.
Probuild’s expert relied on an as planned versus as built analysis that tracked what took place.
Justice Digby preferred the retrospective method. Once the evidence existed, he said, the only sensible way to measure delay was to focus on the facts. The as built record told the real story.
What the Court expected
The Court’s message was clear. Delay analysis must be factual, logical, and supported by evidence.
A persuasive analysis should:
Identify the event that caused delay.
Show what actually happened on site.
Explain how that event extended completion.
It is not enough to produce models or graphics. A credible claim is built on programmes, site diaries, photographs, and correspondence. If the analysis cannot be traced back to real events, it will not survive scrutiny.
As Justice Digby noted at paragraph 281, when work is complete, the assessment must reflect how the work was performed and how delay occurred.
Lessons for Practice
For contractors, the lesson is simple. Keep complete records. Base claims on actual progress. Show clearly how each event affected the sequence of work.
For principals and superintendents, fairness and independence are vital. Claims should be assessed on facts, not technical wording. Rejections that ignore the evidence are unlikely to stand up in court.
When both parties rely on facts rather than assumptions, disputes narrow and credibility increases.
In Conclusion
The strength of any delay claim lies in its evidence. Justice Digby’s reasoning in V601 v Probuild shows that courts expect clarity, precision, and logic. The most persuasive analysis tells a straightforward story: what happened, why it happened, and how it delayed completion.
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