East Meets West: Delay Analysis - A View from Australia

Robert Fenwick Elliott

October 2012

A paper presented to the International Construction Law Conference held in London on 24th September 2012

Robert Fenwick Elliott explains that the purpose of his paper is to make a few observations about how delay analysis is currently being treated in Australia, looking in particular at Alstom v Yokogawa (No 7), a decision of the Supreme Court of South Australia which - he comments - many construction lawyers will find somewhat remarkable. He first looks at other recent Australian cases on claims for 'delay damages' (loss and expense at a pre-agreed weekly rate, in English terminology). He illustrates the Australian courts' reliance on the SCL Protocol as summarising proper methods of retrospective delay analysis, and goes on to show how in Alstom the court adopted a broad interpretation of a duty to cooperate between contracting parties, as well as ideas of fair dealing and good faith.

Introduction - Approaches to delay analysis - The Alstom case - Conclusion: delay claims in general.

The author: Robert Fenwick Elliott is a barrister and solicitor of the Supreme Court of Australia, lawyer of the Supreme Court of New South Wales, a partner of Fenwick Elliott Grace (Adelaide, Australia), and founding partner (now consultant) of Fenwick Elliott LLP (London).

Text 9 pages