No published Australian figure for liquidated damages levied or extension-of-time claims missed, refused or time-barred

What it is. None - ten Australian sources opened, none measures liquidated damages as a share of contract value or per day across a national sample of projects, or the share of extension-of-time claims refused or served late.

Sample. Search terms: liquidated damages levied Australia public infrastructure percentage of contract value; Auditor-General liquidated damages not applied delayed projects (NSW, Victoria, Queensland, WA, Commonwealth); extension of time claims time-barred notice empirical study Australia; Society of Construction Law Australia empirical delay claims; Productivity Commission public infrastructure liquidated damages; Melbourne Law School survey of contract amendments; Arcadis global construction disputes Australia delay claims. Amounts found, none national: Mulwala $6.5 million on $263 million (ANAO, filed under AU-NSW); Banksia Hill $209 000 (WA, no contract value). Frequencies and contract terms found, none a cost: Suburban Rail Loop tunnels cap liquidated damages at 10 per cent of target outturn cost (15 per cent by election); the Murray review (Chapter 15.5, retentions) reports head contractors citing liquidated damages to keep subcontractors' retention, and its Chapter 16.5 and 16.6 (unfair contract terms) records stakeholder and Society of Construction Law Australia views that time bars on extension-of-time claims often go beyond their legitimate purpose, in both cases with no count or amount. Not opened and so not counted: a Melbourne Law School survey of contract amendments that a search summary of a vendor page cited (not found at source), and the Arcadis and HKA global dispute reports, whose Australian cuts we did not find.

What it is not. Recorded as `none` on purpose. Liquidated damages are a contract term, and Australian audit offices report them only project by project, usually when a project failed. No source we could open reports how much is levied across a national sample, or how many extension-of-time claims are refused or time-barred. One project amount is filed under AU-NSW. Contract rates and caps (for example 10 per cent of target outturn cost) are terms, not outcomes, and are not filed.

Where it came from

• J Murray AM, for the Australian Government (Department of Jobs and Small Business) (2017), Review of Security of Payment Laws: Building Trust and Harmony
  Appendix B 'Survey of contractors', p.324 (claim amounts under security of payment laws); Chapter 3, p.14 (survey of 526 contractors); Chapter 6, p.64 (applications per year); Chapter 10, p.123 (latent conditions, time-related costs, disputed variations); Section 15.5, p.270 (retentions and bank guarantees) · source record

Considered and set aside

• Australian National Audit Office: The one place an audit states liquidated damages actually applied and the contract value: $6.5 million on a $263 million contract (Box 2 Note b, paragraph 3.1). It is one troubled Commonwealth project in New South Wales, so it is filed as a per-project amount under AU-NSW (penalty_days_liquidated_damages_levied_mulwala_nsw) and cannot stand for Australia.
• Australian National Audit Office: Finance withheld liquidated damages for missing Practical Completion, then released them and waived more in a 2007 settlement, but the report states no amount. The contractor's extension-of-time claim (234.9 days, $46.89 million; Finance counted 89 days and $19.45 million) is one project's dispute, not a rate.
• Office of the Auditor General Western Australia: $209 000 of liquidated damages applied on one Western Australian building contract, against $789 000 of transitional costs; no contract value is given, so no share can be formed, and it is one state project.
• Victorian Auditor-General's Office: Shows liquidated damages exposure released in a settlement on one Victorian rail project (settlement 10.5 per cent of the original contract price), but states no amount accrued, so the damages themselves are unmeasured.
• Victorian Auditor-General's Office: Describes the liquidated damages regime (daily rates, capped at 10 per cent of target outturn cost, 15 per cent if the contractor raises the cap) on contracts not yet performed; a contract term, not damages levied.
• Productivity Commission: National inquiry on public infrastructure delivery; liquidated damages appear only in passing (a commentator's $15 million for one day late on one plant, a 10 per cent provision in one contract), with nothing on what is levied or on extension-of-time claims.
• Transport for NSW: Transport for NSW's general requirements TS 01566: the Principal's Authorised Person has no power over the liquidated damages only clause (clause 13.1(c), which cites Clause 51 of the General Conditions of Contract), and a subcontractor's liquidated damages may not exceed the rates agreed with the Principal (Primary Testing hold point); contract terms with no rate and no outcome.
• Hasib & Al-Kilidar (University of Technology Sydney): 28 respondents ranking 59 causes of delay; the paper does not mention damages, penalties or extensions of time, and measures no cost.
• Infrastructure Australia: National market-capacity study of risk allocation between government and contractors; the full text has no reference to liquidated damages or extensions of time.
• Arcadis with the Australian Constructors Association: Contractors' absorbed price escalation after variations and extensions of time; it names extensions of time as a mitigation tool but gives no count of claims refused or damages deducted, and no respondent count.

forfeited_entitlements/penalty_days_none_au · AU · F ·the record ·link to this figure ·dispute this figure(or email support@demiton.io)