Why Most Extension of Time Claims Fail Before They Reach a Programme
Most extension of time disputes are not lost in the programme. They are lost months earlier, in the gap between what happened on site and what got written down.
By the time a delay expert opens the file, the outcome is often already half-decided, not by the strength of the delay, but by the thinness of the record behind it.
The pattern courts keep seeing
Kane Constructions Pty Ltd v Sopov [2005] VSC 237 is now twenty years old, but it remains one of the clearest illustrations of this problem in Australian construction law. The case concerned a renovation and extension of a former industrial building in Collingwood, Melbourne, contracted to run for 130 working days. A year later, the works were still incomplete. Kane, the builder, pointed to insufficient detail in the drawings, a superintendent it said was not independent, and extension of time claims it said were wrongly refused.
The builder's claim for extension of time costs alone ran to $763,908, built on 18 separate EOT claims and a total of 180 days. The superintendent's assessment of those same claims allowed just $5,675 — under one per cent of what was sought. Chief Justice Warren ultimately allowed 56 days and four hours of the claimed extension. The gap between what was claimed and what was proven was not a gap in the law. It was a gap in the evidence.
Where the case actually turned
The trial ran for just over ten weeks, with witness evidence the Court described as “substantial, complex and technical,” involving 72 court book volumes and over 100 volumes of lever arch folders. Much of the cross-examination centred on a single recurring question: was a given activity actually on the critical path, or was it simply asserted to be?
“In my opinion, the project manager was clearly taking conflicting positions on what was or was not on the ‘critical path.”
That single finding cost Kane heavily. The project manager had argued the gallery façade steel was not originally a critical item on the programme, but became critical only once it fell behind — while elsewhere maintaining that only items expressly sequenced on the drawings could be critical. The Court could not reconcile the two positions, and where it could not reconcile them, it did not give the claimant the benefit of the doubt.
This is the part of the judgment that gets lost in summary versions of the case. It is not that Kane's delays were imaginary. Some plainly were real — the Court allowed days for genuine structural steel delays once the evidence held up. The problem was that the project's own programming witness could not maintain a single, defensible position on what “critical” meant from one extension of time claim to the next.
The three failure points
Looking across this case and others like it, the same three weaknesses recur, almost always before a delay expert is ever instructed.
Inconsistent treatment of the critical path. If an activity is claimed as critical in one EOT and treated as non-critical in the next, without a documented reason for the shift, the inconsistency itself becomes the story, as it did for Kane.
Programmes that don't reflect what's actually happening. A programme is only useful as evidence if it was genuinely updated as the project moved, not retrofitted after the fact to support a claim that's already been made verbally.
Causation asserted rather than shown. Saying a drawing was late is not the same as showing what that lateness did to the sequence of work that followed it. The first is a complaint. The second is evidence.
What this means in practice
None of this is a legal problem that needs a lawyer's intervention at the time. It is a site-level discipline problem, and it is entirely preventable. A project team that keeps its programme genuinely current, documents why an activity's criticality has changed when it changes, and links every claimed delay to a specific, dated piece of contemporaneous evidence is doing more for its eventual EOT position than any amount of after-the-fact expert reconstruction can achieve.
By the time a dispute escalates to the point where a forensic delay analyst is called in, the records either support the story or they don't. No amount of analytical sophistication can manufacture a causal link that was never documented at the time. Kane Constructions v Sopov is, in that sense, less a case about delay law than it is a case about discipline — and it has lost none of its relevance for being twenty years old.
Case: Kane Constructions Pty Ltd v Sopov [2005] VSC 237 (30 June 2005), Supreme Court of Victoria (Warren CJ).
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