Time bars in New South Wales subcontracts: what you lose, and when
A time bar is a clause that extinguishes your claim - for an extension of time, a variation, or delay costs - unless written notice is given within a stated window. In every subcontract we've analysed where the drafting was identifiable, the time bars were absolute: miss the window and the entitlement is gone, not reduced. Your Building and Construction Industry Security of Payment Act 1999 (NSW) payment claim rights survive contractual time bars, but your contractual entitlements don't.
How the clause actually works
The typical drafting makes notice a condition precedent: no notice in time, no entitlement - regardless of merit, regardless of whether the builder caused the delay. Notice windows in the contracts we've analysed run as short as 2 business days for variations and cluster around 5 business days for extensions of time.
The trap isn't the paperwork, it's the trigger: the clock usually runs from when the delay or direction occurred, not from when its cost became clear. A site conversation doesn't stop it. Only written notice in the form the contract requires does.
What New South Wales law does and doesn't rescue
The Building and Construction Industry Security of Payment Act 1999 (NSW) can't be contracted out of: your right to serve a payment claim, and the builder's obligation to answer it with a payment schedule within 10 business days, survive whatever the contract says. But an EOT entitlement extinguished by a contractual time bar is hard to revive anywhere - the Act protects the payment process, not the underlying contractual entitlement.
Head contractors must pay subcontractors within 20 business days of the claim, retention money on larger projects must be held in trust, and work can lawfully be suspended after non-payment on two business days' notice.
The habit that beats the clause
You won't negotiate every time bar out. The operating fix is a standing habit: written notice the day anything changes - a delay starts, a direction lands, scope moves - before the ute leaves site. One short email that anchors the date, flags the claim, and says the formal notice follows.
Before signature, the positions worth asking for: a longer window (10 business days is defensible; builders have accepted more), notice as a requirement rather than a bar, and one notice per event rather than rolling updates.
Clause-by-clause risk report against New South Wales security of payment law in about 90 seconds.
Scan my subcontract freeFrequently asked questions
Yes, and it's the standard drafting - the clause operates on notice, not fault. Courts enforce clear conditions precedent. The protection is operational: written notice inside the window, every time.
No - the Building and Construction Industry Security of Payment Act 1999 (NSW) can't be contracted out of, and your payment claim rights survive. But the Act protects the payment process; a contractual EOT entitlement lost to a time bar doesn't come back through adjudication.
General information for Australian subcontractors, not legal advice. Statutory deadlines change and have exceptions - verify against the Act and current guidance, or with a construction lawyer, before acting on them.