Notice and time bars in Australia

That baseline has not changed. What has changed is that two states now let a decision-maker declare a notice-based time bar of no effect where compliance was not reasonably possible or would be unreasonably onerous, and Victoria's version applies retrospectively to every construction contract already on foot in the state. No case has yet tested either provision anywhere, in either state.

That absence of case law is itself the point to carry into any live claim. A contractor advising on a missed notice in Melbourne or Perth today is advising on a statute with a defined test, a defined list of mandatory considerations, and no decided outcomes at all to calibrate what "unreasonably onerous" will actually mean once a determination applies it to real facts. The rest of Australia has none of that machinery, and the analysis reverts entirely to the four qualifications below.

The baseline contract-law position

Absent statute, EOT time bars in Australia are enforceable as conditions precedent, subject to four qualifications.

1. The duty on the certifier or principal to exercise any unilateral EOT power honestly and for prevention-caused delay. This is the practically important qualification in every state that lacks a statutory unfairness power. See prevention principle and time at large in Australia for the doctrine.
2. Waiver and estoppel.
3. The Gaymark argument. That a principal's own prevention can put time at large despite a notice bar. It is weak, and rarely succeeds, but it is not formally dead.
4. In Victoria and Western Australia only, statutory unfairness review: the subject of this page.

Under AS 4000-1997 and AS 4902-2000, the machinery runs on two clocks. A delay notice is due under cl 34.2 "promptly" on anything that will probably cause delay, stating the cause and the Contractor's estimate of the delay. A written EOT claim then follows under cl 34.3 within 28 calendar days of when the Contractor should reasonably have become aware that the causation had occurred, evidencing the facts of causation and the extent of the delay.

Two features of that clock deserve attention before a claim is drafted. The 28 days runs from reasonable awareness of the causation, not from the delay's ultimate effect on completion. A contractor that waits to see how badly a cause will actually delay the works before claiming has usually already missed the trigger. And the claim itself has a content requirement, not just a timing one: cl 34.3 calls for the facts of causation and the extent of delay to be evidenced in the claim, so a bare notification that an EOT is sought, without the supporting facts, risks being treated as an incomplete claim rather than a compliant one.

AS 4000:2025 softens the trigger from "promptly" to "as soon as reasonably practicable", and runs latent-conditions notification from when the Contractor "becomes aware" rather than from a fixed point. Principals are expected to amend that softening back out in negotiation, so a contractor working off a 2025-edition base contract should not assume the softer trigger survived into the executed document. Read the executed contract, not the standard form.

Victoria: s 13A, commenced 15 April 2026

The Building Legislation Amendment (Fairer Payments on Jobsites and Other Matters) Act 2025 (Vic) was enacted in November 2025, and Part 2 commenced 15 April 2026. Commentary published in March 2026 that forecast commencement "no later than 1 September 2026" is superseded. The provision is already in force.

New s 13A of the Building and Construction Industry Security of Payment Act 2002 (Vic) defines a "notice-based time bar" as any provision that makes an entitlement to payment, an extension of time affecting a payment or security entitlement, or release of performance security contingent or dependent on the provision of notice. EOT notice provisions are caught wherever the extension affects a payment or performance-security entitlement, which is most of them under a standard security-of-payment-linked contract.

The test is whether compliance "is not reasonably possible" or "would be unreasonably onerous". Where either is made out, the provision has no effect in relation to that entitlement. Section 13A(5) lists mandatory considerations for the decision-maker:

• when the party would reasonably have become aware of the deadline
• when and how notice must be given
• the parties' relative bargaining power
• whether matters stated in the notice are treated as final and binding, where "unreasonably onerous" is alleged
• a presumption that the parties understood the contract terms
• a presumption that the notice-giver has the commercial and technical competence of a reasonably competent contractor, and
• any prescribed matters. None prescribed to date.

Who decides is unusually broad: an adjudicator, a court, an arbitrator, or an expert determiner. Section 13A is not confined to the SOP adjudication pathway. It reaches conventional arbitration and litigation of EOT claims.

The application is retrospective to all construction contracts, including those entered into before commencement: every EOT notice clause on every live Victorian job is now potentially subject to s 13A, regardless of when the contract was signed.

Commentary flags one drafting gap: the definition of "notice" does not expressly extend to notice of an event occurring, arguably leaving a class of pure event-notification clauses outside the section. That reading is untested.

The 15 April 2026 changes did not stop at s 13A. The "excluded amounts" regime (ss 10A–10B) was repealed on the same date. Variations, latent conditions and delay costs are now claimable in a Victorian payment claim and adjudication, ending Victoria's status as the last state to exclude delay damages from adjudication. Also from that date: respondents are prohibited from raising reasons not stated in the payment schedule, payment is due within a maximum 20 business days, and a new ss 17A–17G retention and performance security regime applies, with a 10-business-day release default where the contract is silent and 5 business days' notice required before recourse to security.

Western Australia: the template

Section 16 of the Building and Construction Industry (Security of Payment) Act 2021 (WA) is the model Victoria's s 13A was built from. The same "not reasonably possible" / "unreasonably onerous" test, and the same broad range of decision-makers. It applies to contracts for WA construction work entered on or after 1 August 2022. Victoria's provision is based on, though not identical to, the WA original.

No WA case law has yet applied or tested the boundaries of s 16. Nearly four years in force, and there is still no interpretive guidance on what "unreasonably onerous" means in practice, how the mandatory-consideration factors are weighed against each other, or how far the reasonably-competent-contractor presumption cuts against a claimant. Victorian practitioners inherit the same gap: the first Victorian determinations will be the ones that set the boundaries for both states, and. Because s 13A is not confined to adjudication. Expect the earliest tests to surface at adjudication before they reach arbitration or a court.

Queensland and New South Wales: no statutory lever

Queensland is a clean negative, and it may now be stated affirmatively: the Building Industry Fairness (Security of Payment) Act 2017 (Qld) contains no power to declare a notice-based time bar unfair or of no effect, and the 2024 amending Act did not introduce one. There is no Queensland analogue of WA s 16 or Victoria's s 13A. Queensland EOT time bars are governed by ordinary contract-law principles only: the unilateral-power duty, waiver, estoppel, and the weak Gaymark argument, set out above. The Queensland lever against an unfair time bar is contractual, not statutory, which is exactly why standard-form drafting there works to strengthen the certifier's discretion rather than to loosen the notice clock.

New South Wales is also a negative on the unfairness point. The Building and Construction Industry Security of Payment Act 1999 (NSW) has no unfair-time-bar power. What NSW does have is s 34, an anti-contracting-out provision voiding terms that purport to exclude, modify or restrict the operation of the Act. Practitioners have historically reached for s 34 as the lever against harsh contractual notice machinery, and that reach needs correcting.

The relevant decision is Sharvain Facades Pty Ltd v Roberts Co (NSW) Pty Ltd. A June 2025 first-instance decision holding a contractual deeming provision for service of notices ineffective. On appeal, however, Roberts Co (NSW) Pty Ltd v Sharvain Facades Pty Ltd upheld that outcome, but on s 14(4) grounds. The payment-schedule provision, and expressly declined to decide the s 34 point. The anti-contracting-out route therefore carries no appellate endorsement in NSW: it is a first-instance holding the Court of Appeal deliberately left open, preferring a narrower statutory route to the same result. Section 34 also does not on its face address EOT time bars generally. Only their effect on rights under the Act.

Do not lead with s 34 in NSW. The appellate-safe route against contractual notice machinery is s 14(4).

The four positions, side by side

The practical starting point on any Australian job is which of four positions the contract sits in.

Layer: statutory. The remaining states and territories are not addressed in the source note for this page. Treat their position as unstated rather than assume it matches any row above.

The Victoria and WA rows look identical on the face of the test and the decision-makers, and that is deliberate. Victoria's drafters built s 13A on the WA model. What is not identical, and matters more in practice, is exposure: WA's s 16 has applied prospectively since 2022, so the population of contracts it can reach has been growing for years without producing a single tested determination. Victoria's s 13A reached back on day one to cover every contract already running in the state, which means the first wave of Victorian arguments will be run on contracts negotiated and priced with no idea the section would ever apply to them.

The Australian Consumer Law overlay

Separately from every SOP statute, the unfair contract terms regime under the Australian Consumer Law is a growing and independent lever against harsh time bars in standard-form contracts. It operates regardless of which state the contract is in, and regardless of whether s 13A or s 16 apply. It is beyond the scope of this page, but it should be checked in any small-business or standard-form context. It can be live even where the SOP-based unfairness power is not, and it is worth flagging precisely because Queensland and NSW contractors have no statutory notice-unfairness argument of the s 13A or s 16 kind to fall back on.

Working through a missed notice

Two things hold across all eight jurisdictions. First, a missed notice is not automatically fatal only in Victoria and WA. Everywhere else, the better argument is usually that the Superintendent's unilateral power was not properly exercised, not that the time bar itself can be unwound. Second, both statutory unfairness powers are new enough that nobody yet knows how a decision-maker will actually apply "unreasonably onerous" to a real set of facts. Until a determination tests either provision, the safest course on a live job remains the one that predates both statutes: diarise from the trigger the contract actually states, and give the notice.

For the doctrine sitting behind the unilateral power itself, start at prevention principle and time at large in Australia. For how s 13A's reach compares with the ordinary adjudication pathway, see security of payment in Australia. For the country-wide picture. The Superintendent's power, concurrency, global claims, and where an Australian delay claim actually dies. See the Australian extension of time hub.

Sobre este material El contenido de la biblioteca es información general sobre la práctica de las reclamaciones de construcción, no asesoramiento jurídico. El derecho a reclamar, los plazos y el procedimiento se rigen por su propio contrato y por el derecho del lugar donde se ejecuta la obra. Revisado el 1 de septiembre de 2026 · Informar de una corrección