KEY TAKEAWAYS

• Christmas is a time to be merry – but also to be aware of the risk for opportunistic claims from contractors and subcontractors.
• Be careful to ensure that you comply with time bars – don’t get caught by time-bars calculated on a calendar day basis.
• There are important considerations for statutory payment claims and adjudication over the Christmas and New Year periods.
• Be wary of supply chain disruptions in the new year and plan accordingly.

INTRODUCTION

As the holiday season approaches, the construction sector is gearing up for a well-deserved break. However, amidst the festive cheer, it’s crucial to remain vigilant and address potential risks that may arise during the Christmas and New Year periods. This article focuses on key considerations to navigate the season successfully.

BEWARE OF OPPORTUNISTIC CLAIMS

While Christmas is a time for joy and family disputes, it is also essential to be mindful of potential opportunistic claims from contractors and subcontractors. The festive season can provide cover for dubious claims. We recommend you maintain clear records – particularly around project progress and be prepared to address any claims promptly. Open communication with all stakeholders can help prevent misunderstandings and ensure a smoother holiday season.

BEWARE THE CALENDAR DAY

For contractors and subcontractors, compliance with contractual time-bars is paramount.

Prior to the break, instructions or events that may necessitate claims and notices. One thing to be aware of is the time for issuing the required notices – in particular, where the timing is calculated on the basis of a calendar day. While many contracts will define a ‘Business Day’ as excluding certain days over the Christmas and New Year period (although you should check the definition in your contract to make sure), notices that are calculated by reference to calendar days will treat the break period just like any other day of the year. So – keep an eye out as you approach the break and set aside some time to issue any required notices before you go on leave.

STATUTORY PAYMENT CLAIMS AND ADJUDICATION

The Christmas and New Year periods bring unique considerations for statutory payment claims and adjudication processes. Some less salubrious parties often use this period for to deliver an early Christmas present in the form of an adjudication knowing the availability of personnel over the break to prepare a response is often limited. It is critical that any payment schedules prepared in the lead up to Christmas are comprehensive to ward of any opportunistic adjudications and provide a strong basis for the preparation of an adjudication response. 

Construction practitioners must also stay informed about deadlines during this time and ensure compliance with relevant regulations. This includes understanding the specific timelines for submitting payment claims and potential adjudication procedures, and the break periods recognised under Security of Payment. For example, besides public holidays:

• The NSW Act excludes the 27 to 31 December as business days.
• The QLD Act excludes 22 December to 10 January as business days.
• The VIC Act does not recognise any additional non-business days.

Failing to recognise the effect this may have on deadlines could have serious consequences.

Prior to leave for the Christmas Break, we recommend that you check your head office and any registered addresses for service of any hardcopy payment claims and adjudication applications. Claimants may take the opportunity to serve you by hardcopy right up until the end of business hours this Friday, 22 December.

SUPPLY CHAIN DISRUPTION IN THE NEW YEAR

As the new year approaches, contractors and subcontractors should be wary of potential supply chain disruptions and the availability of materials and services, leading to delays and complications in ongoing projects. To mitigate this risk, plan ahead, communicate with suppliers about holiday schedules, and explore alternative sources if needed. Spending time now to consider your strategy can help ensure a smooth transition into the new year without compromising project timelines. Ensure the dates of site closure and reopening are clearly communicated, and speak with critical trades well in advance to ensure you maximise project momentum to start the new year.

CONCLUSION

While Christmas is a time for celebration and relaxation, it’s crucial for those in the construction sector to remain proactive in managing potential risks. Stay vigilant against opportunistic claims and ensure you maintain contractual compliance around recurring notices. A thoughtful approach now will not only protect against potential pitfalls but also set the stage for a stress-free new year.

To learn more about these findings, please contact the Calibrate office at info@calibrateconsulting.com.au or call +61 9188 7444.