TIME BARS AND COUNTING DAYS
Many contracts include time bars on
claims. To manage the risk
associated with the time bar, contract
administrators need to know how to
count days to ensure claims are
notified before time expires.
Taking a simple example, assume:
 It rains all morning on Monday, 1
April 2013 and this causes a
concrete pour which is on the critical
path to be delayed;
 Wet weather qualifies for an
extension of time; and
 The contract requires any claim for
an extension of time to be notified
“within 7 days of the contractor
becoming aware of the event which
will or may cause a delay to the Date
of Practical Completion”.
What is a day?
Is there is a definition of the word
‘day’ in the contract? If not, then the
default position is that day means
calendar day, being a 24 hour period
ending at midnight. It includes
Saturdays, Sundays, and public
holidays.
It is quite common to find contracts
that refer to ‘days’ in some clauses,
‘business days’ in other clauses and
‘working days’ too. Usually these
terms are defined and the meaning is
clear but that is not always the case.
If in doubt, take a conservative
approach when calculating the time
for notification.
When does time start?
When it comes to counting days, the
established legal position is that the
day of the specified event is excluded.
Even if the rain finishes at lunchtime
on Monday, the remainder of that day
is excluded from the allowed 7 day
period. The starting day is the day
after the day of the specified event.1
In the example, Day 1 would be
Tuesday, 2 April 2013.
When does time end?
There have been a number of cases
which consider the meaning of the
word ‘within’.2 Generally, the word
‘within’ means ‘before or at the expiry
of’ the stated period. It is often used
to delimit a period ‘inside which
certain events may happen’. In the
example, Day 7 would fall on Monday
8 April 2013, assuming day means
calendar day.
there could be a difference between a
clause which requires notice “within
24 hours”, as opposed to “within 1
day”. There is much to be said for
taking advice about time bar
provisions at an early stage, given the
dangers associated with noncompliance.
Midnight or business hours?
The final moment of the specified
period is included in the allowable
time period. A day finishes at
midnight so, strictly speaking, the
time limit will not expire until the
next ‘day’ begins. The contractor has
until midnight on Monday, 8 April
2013 to serve the notice. However,
many contracts require that formal
notices are served during business
hours, using agreed modes of service
– typically, by hand, by post or by fax.
In that situation, service would need
to be completed by the agreed mode
within the business hours stated in
the contract, even where day means
calendar day.
Traps for the unwary
Time bar provisions are often
complex, even in contracts for
projects where the contract price is
relatively low. Sometimes the traps
are not obvious, even for an
experienced contract administrator
with a good working knowledge of
the relevant legal principles. Where
there has been tinkering with the
drafting, this can have a significant
impact on meaning. For example,
Penny Swain
Director
T +61 3 9606 3200
F +61 3 9606 3222
[email protected]
Endnotes
1. Morton v Hampson [1962] VR 364, 3656 (Herring CJ, Sholl and Little JJ) cited
with approval by STX Pan Ocean Co Ltd v
Bowen Basin Coal Group Pty Ltd (No 2)
[2010] FCA 1240 [50] (Rares J) and
Moon v JLG Industries [2011] FMCA 343
[25] (Lucev FM).
2. Manorlike Ltd v Le Vitas Travel Agency
and Consultancy Services Ltd [1986] 1 All
ER 573, 575 (Kerr LJ); P & M Productions
Pty Ltd v Elders Leasing Limited [1992] 1
Qd R 264, 275 (Williams J) citing
Reynolds v. Reynolds [1941] V.L.R. 249,
252 (O’Bryan J).
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