Time bar clause: what it means, a typical example, and what to ask for
A time bar clause says a claim (for a variation, an extension of time, delay costs) is lost if you don't give notice within a set period. The deadline matters, but the consequence matters more: an absolute bar kills the claim, while a notice requirement only reduces it if the late notice actually hurt the builder.
A typical builder version
If the Subcontractor fails to give a notice within the time required by this Subcontract, the Contractor is not liable upon any claim by the Subcontractor in respect of the subject matter of that notice, and the Subcontractor releases the Contractor from any such claim.
Illustrative wording of the kind found in builder-authored subcontracts, not taken from any one contract.
What it means for you
Any claim you don't notify in time is gone for good, however real the work or the delay.
- "Not liable upon any claim" or "releases": the claim is extinguished, not delayed.
- Windows of five business days or less, especially from the day the event occurred rather than when you knew.
- Different windows in different clauses, so one deadline is easy to miss.
What market looks like
A notice requirement measured from when you became aware (or should have), of at least 10 business days, with late notice reducing a claim only to the extent the builder proves it was prejudiced. Australian courts generally enforce clear time bars, so this has to be fixed in the drafting.
What to ask for
"Where the Subcontractor fails to give a notice on time, its entitlement is reduced only to the extent the Contractor demonstrates it has been prejudiced by the failure."
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Common questions
Are time bars enforceable in Australia?
Generally yes, when they are clearly drafted. Courts have enforced time bars even against otherwise valid claims, which is why the wording and your notice habits matter.
How do I protect myself from time bars?
Send a short written notice the day anything changes on site: who directed it, when, what, and which clause. The detail and price can follow.
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General information, not legal advice. Example wording is illustrative. Check any clause you rely on against your full contract and your state's Security of Payment Act. Written by Mat Kennedy, The Construction Contracts Co.