A client for a construction project gave their contractor site possession 3 months after

the date for possession stated in the contract. During the 3-month 'waiting period',

the contractor sent multiples notices to the contract administrator to request to

suspend the work. The contract administrator received the contractor's requests but

did not issue any instructions to suspend the work.

Eventually, the contractor proceeded with their works but struggled to catch up with

the contract's deadline. The project did not complete on time despite the contractor's

best efforts. The project is now delayed by 4 weeks, and the client charged the

contractor liquidated damages (LD) for each delayed day. The contractor contested

the LD charges and asserted that the delay was wholly caused by the client's fault.

The contractor argued that the contract time has become at large and the contractor

was no longer obliged to complete by a fixed completion date and need only

complete the work within reasonable time without imposing LD.

The client contended that the contractor had waived their rights to avoid LD charges

by failing to apply for an extension of time (EOT) following the delayed site

possession. The client emphasised, "No EOT application means no EOT approval,

so LD should be chargeable'".

The project uses NZS3910:2013 as the contract.

discuss on Late site possession related to the case above (position under common law

and position under contract)