When will claims for an extension of time be invalid? New South Wales District Court provides clarity in recent decision of Bond Mayhew Pty Ltd v Spicer [2026] NSWDC 190 (“Spicer”)

Key takeaways:

1. Where a building contract provides a regime regarding the issue of claims for an extension of time to complete the works, requiring the builder to issue a notice, setting out the cause and the extent of the delay, within a specified timeframe, failure to act promptly may result in the extension of time claim being held invalid.
2. Builders should not rely on a ‘commonsense’ approach whereby an entitlement to an extension of time is assumed even in the clearest of circumstances.
3. If a claim for an extension of time is held to be invalid, the date for practical completion will remain unchanged, exposing the builder to a claim for delay damages or liquidated damages.

Facts:

On 12 June 2026, the New South Wales District Court handed down the decision in Spicer, providing both builders and owners with clear guidance in relation to the issue of claims for an extension of time to complete the works.

The facts of Spicer were (relevantly) as follows:

• the owner engaged the builder to conduct renovation work on the site to convert a residential property into short term holiday accommodation by dividing it into three units.
• the owner intended to rent the property out as short term holiday accommodation. For these reasons, the contract provided the date for practical completion within 52-weeks from the date of commencement.
• the contract in this case was a cost-plus contract which the parties entered on 7 May 2022.
• during construction, the owners directed more than 19 revisions to the architects and significantly varied the scope of works with the result that by the time the builder purported to terminate the contract, the owners had directed more than 38 written variations to the contract.
• the builder did not issue any claims for an extension of time on account of the above variations until after 14 May 2024, a considerable time after the variations were requested and the date for practical completion had elapsed.
• on 14 May 2024, the builder issued a number of claims for an extension of time. The claims fell into two categories:
  • claims which purported to extend the date for practical completion to a date which fell before 14 May 2024; and,
  • claims which purported to extend the date for practical completion after 14 May 2024.
• on 2 September 2024, the owners issued the builder with a notice complaining of a substantial breach of the contract.
• on 12 September 2024, the builder suspended the works. The builder then terminated the contract on account of the owner’s failure to pay the builder’s invoice.

The Spicer-contract contained a clause entitling the builder to claim extensions of time to complete the works. The clause required the builder to issue the owners with a notice confirming both the cause of the delay and the extension of time claimed.

Critically, the clause permitting the issue of claims for extension of time required the builder to issue its notice within 10-working days of the builder becoming aware of both the cause and the extent of the delay.

One of the key issues the Court was caused to consider whether the owner was entitled to damages arising from the failure to cause the works to reach practical completion. This necessarily entailed considering whether the date for practical completion had been extended on account of the claims for extension of time above.

Outcome:

The Court determined that the builder’s claims for extension of time were not validly issued with the result that the date for practical completion remained unchanged.

In reaching this conclusion the Court determined:

• the regime under the building contract for the issue of claims for an extension of time was mandatory in nature.
• the requirement to issue notices was interpreted strictly, meaning that the notice had to both contain adequate information to justify the claim, and, most importantly, had to be provided within 10-working days of the date that the builder became aware of both the cause and extent of the delay.
• the failure on the builder’s part to issue claims contemporaneously where the builder plainly was aware of the cause of the delay meant that the builder’s claims for an extension of time were invalid.
• the builder could not rely on a ‘commonsense’ approach whereby variations altering or expanding the scope of the works where the contract prescribed a mandatory regime which demanded compliance.

Why this case matters:

Although this is a decision of the New South Wales District Court, the Court’s comments are still relevant to the dictation of good building practice in Western Australia.

Clauses in similar wording to the relevant clause in Spicer appear generally in Housing Industry Association Lump Sum Building Contracts which are the subject of the Home Building Contracts Act 1991 (WA).

It is likely that, if an issue involving an assessment of the validity of claims for an extension of time were under consideration where the contract contained a terms requiring similar requirements to that in Spicer, the reasoning of the Court above would be highly persuasive.

Conclusions

The case of Spicer contains lessons for both builders and owners alike.

For the builders, Spicer serves as a cautionary tale in which the failure to provide notices claiming an extension of time in a timely fashion may result in the notice being struck down as invalid, leaving the date for practical completion unaltered. If this occurs, a builder may find itself liable to an owner for delay or liquidated damages.

For Owners, Spicer clarifies the contents and the requirements of a valid claim for an extension of time. If a notice issued by a builder falls short in that respect, the owner should take timely steps to ensure it is challenged to preserve their entitlement to delay damages.

At Vogt Legal, we have extensive experience litigating in relation to claims for an extension of time. For a confidential and detailed discussion as to how you may be affected by Spicer, do not hesitate to contact Stephen Mintz and Will Vogt.

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