The Delay Claim
101The homeowners submit that the delay claim was retaliative in response to their application filed in this Tribunal and that there was no entitlement to bring it since there was non-compliance with the provisions of Clause 9.2 of the contract regarding notices for EOT's except with regard to weather delays. This is disputed by the builder which submits that there is no time bar to bringing a claim even if there has been non-compliance with Clause 9.2. A determination of this point only becomes necessary if the Tribunal is satisfied that the claim for delay can be substantiated both as to cause and quantum.
102In seeking to establish the builder's right, Mr Zikman submits that the expert evidence of Mr Shachar which supports the builder's claim for delay damages is unchallenged by any delay expert for the homeowners and therefore should be accepted. Such a proposition is one that I cannot accept. The onus of proof to establish its claim to the required standard clearly rests with the builder. On that basis the credibility of the Shachar report needs to be tested against other criteria whether or not it has been challenged by a delay expert in opposition.
103The Shachar report relies on the letter of instruction from The Builders' Lawyer Pty Ltd dated 6 March 2013. That letter is not specific in the material that is enclosed with it although it does identify some small number of the documents. It directs Mr Shachar "to prepare a report on the reasonable and fair valuation for the delay in the project. You are directed to refer to the facts stated in the Affidavit of Joanna Natoli sworn 13 November 2012." It is not clear whether all attachments to the JN affidavit were also included but it at least suggests the details relating to the formation of contract were "as described in the affidavit".
104At paragraph 17 of his report Mr Shachar states "I have specifically considered the parties affidavits. I have assumed that the facts as referred to in these documents are correct."
105Mr Shachar in cross examination said that he relied on the contents of the affidavit of JN being true for the purpose of preparing his report confirming his report statement.
106He further explained that the builder did not have a contract works programme in respect of this project. It was therefore necessary to create a calendar and works programme which amounted to a theoretical plan as to how the house should have been built in accordance with the contractual time frame. Mr Shachar it would seem largely relying on the accuracy of the JN version of events makes his determination of the number of days delay using this theoretical programme as the yardstick for when particular events should have occurred.
107I find that the difficulty with the Shachar report is that the fact that it relies heavily on the JN statement of evidence which having regard to the many aspects of her evidence which I have held to be less than credible must similarly undermine its basis also.
108However even overlooking that difficulty, Mr Allan's reliance on the dicta expressed in paragraphs 66 and 67 above point to other problems this report faces. The Turner decision refers to the "requirement for actual, as opposed to potential, delay .... It is necessary (for the builder) to establish that delay was caused".
109The guidance as to determining actual as opposed to potential delay as submitted by Mr Allan is found in Kane Constructions of which some relevant extracts of CJ Warren's decision are as follows:
"Lloyd LJ was in this way able to provide strong guidance on the appropriate approach to be taken to these sorts of cases. The analysis should be principally a factual one, with good records in support. The relevant events and their effect should be looked at according to the time in which they occur and in the context of the work actually going on at the time. In other words, global claims are bound to fail......
......the general approach which should be taken with respect to EOT claims. More specifically, with EOT claims, the burden of proof is on the claimant to establish actual delay. Whilst theoretical calculations, particularly those contained in computer software programs, are useful tools in the building industry, generally further information will be required. Whilst there may be assumptions and calculations, it is necessarily a matter of the claimant proving in the proper way that there has been actual delay such as to substantiate claims for reimbursement.
......to assist in deciding the point, McAlpine casts the necessary approach as one that requires a builder, in this instance the plaintiff, to present a drawing by drawing, beam by beam, column by column, gutter by gutter factual analysis to show how a particular event had the effect of delaying other identified work."
110The evidence relied upon by Mr Shachar here was general in nature. Indeed JN evidence shied away from anything technical as she was not the builder on site and she repeated a number of times during cross examination that this was the case. I find that the Shachar report falls short of establishing actual delay scrutinised in accordance with such established requirements as indicated in the dicta quoted above.
111Similarly the report does not take into account the extraneous factors such as the builder's involvement in the other jobs. Considering Mr Shachar's report summary in relation to 116 alleged days delay, it is coincidentally evident that 33 days fall in the period prior to March 2010 when the builder was still involved in the Hunters Hill job and 76 days fell in the period after December 2010 after the builder had commenced the Coogee and Mona Vale jobs. Only 7 days are alleged as lost to delay between March and December 2010.
112Finally, the most significant hurdle to acceptance of Mr Shachar's delay assessment is that on his own admission under cross examination he agreed that if the start of the contract period was contingent on the homeowners' compliance with Clause 4 of the contract, in determining the initial period, then the contract period could not commence until such compliance occurred. I find that Mr Shachar's determination that 14 December 2009 should be the theoretical start date is simply wrong as the necessary certification to enable the building works to commence did not occur until the engineers signed off on 21 February 2010 meaning that pursuant amended Clause 8.1and Clause 8.2 the contract period would commence 31 working days after that date. Mr Shachar agreed that if such were the case the contractual start and finish dates would shift later in time and this would in turn require a whole new rain and holiday analysis. Whilst the builder may have had rights flowing from delays to the initial period any remedy was available under Clause 4.2 and this was never relied upon when it may have been available.
113I do not propose to deal with each of the items in respect to which Mr Shachar has assessed delay given that the absence of any revised assessment for them to account for a different contract period must render his existing assessments inaccurate. However I find in any event, in relation to the timber flooring, gas connection and the external works, all of which have been assessed as subject to significant delays by Mr Shachar, that such assessments have been based on factual presumptions that are unreliable having regard an overall reading of the evidence.
114Having regard to the foregoing findings it is clear that the builder has not established to the required standard actual delay caused by the homeowners and on that basis without more should have no entitlement to the damages which it claims under this head.
115In view of the latter findings it is not necessary to adjudicate on whether in any event the builder's delay claim is precluded by the clear failure to comply with the provisions in Clause 9 of the contract. I note however that Mr Zikman has sought to extend the meaning of Clause 9.2 by suggesting there is a requirement for the builder not only to give notice of the cause but also of "the extent of and the effect of the delay". He then suggests that the effect of delay may not become known until a much later date "at a time when the impact on other future planned activities are first appreciated and can be quantified". It is implied in his reasoning that on such assumption that if effect of delay were not immediately known that the time for the giving of notice would extend to within 10 days of the "the effect of delay" becoming known.
116It is argued that there is no time bar provided by Sub Clause 9.2 but even if there were Sub Clause 9.4 provides a stand-alone right to the builder for costs incurred on account of delays, unrestricted by any time provision.
117My own interpretation of Clause 9 is that such an extended meaning based on "effect of delay" is not available on the true construction of that provision. Clause 9 contains four subclauses all of which are linked. The first gives a right to the builder to claim an extension of time on the happening of certain defined events one being a failure by the owner to do something required under the contract. The second sub clause provides the mechanism required for the builder to make such a claim once established under the first sub clause and includes a time requirement. The third provides the mechanism required for the owner to dispute it. The fourth sub clause provides the method of calculating the loss to the builder in the event that the preconditions in the first two subclauses are met and cannot be successfully disputed by the homeowner pursuant to the third sub clause.
118Mr Zikman's further submission that the decision in Dante De Grazia provides support for the builder in this instance to be able to bring a claim for delay damages even though it has not complied with the provisions of Clause 9 is rejected on the basis the latter case involved turned on a particular factual position which is quite different to the present. It does not provide definitive authority for the proposition that non-compliance with contractual requirements can always be overlooked.
119I find that in the circumstances of this case that the cause of any alleged delays and the extent of such alleged delays would have been known to the builder within the course of the works and the complete absence of notice in compliance of Clause 9 prevent reliance upon it more than a year after the contract has ended.