is Clarke Energy (Australia) Pty Ltd v Alinta Energy Transmission (Roy Hill) Pty Ltd [2026] NSWSC 1124
A recent decision of the NSW Supreme Court concerning a Western Australian power project provides useful guidance for contractors dealing with delays, EOT claims and the administration of complex construction contracts.
The project was governed by WA law and involved a number of significant delays, including issues with existing underground services, COVID-19 impacts, works within an operating power station and access to the electricity network for commissioning.
Clarke Energy sought a number of extensions of time. One claim concerned delays associated with existing underground services that the principal had represented would be removed before Clarke commenced its works.
Clarke had not initially complied with all of the contractual requirements for the EOT claim, including providing the claim to the superintendent. However, the Court found that the principal had subsequently waived its right to rely on that requirement, having itself departed from the agreed EOT process and ultimately allowed a later superintendent to determine the claim substantively.
The decision is a reminder that contractors should comply strictly with contractual EOT requirements, but should also carefully document the conduct of the principal and superintendent where the contractual process is not followed.
The project had three different superintendents.
The first, an employee of the principal, was described as “overwhelmed” and did not determine an EOT submission for approximately 200 days. A second superintendent was subsequently replaced after privately indicating that he was considering issuing a Practical Completion certificate. A third superintendent was then appointed and ultimately dealt with the outstanding EOT claim.
The Court considered the contractual obligations applying to the superintendent and the requirement for the superintendent to act honestly, fairly and reasonably.
The Court also considered whether a court can undertake a retrospective assessment of delay where the superintendent has not properly determined an EOT claim. In doing so, it referred to authorities including Walton v Illawarra Ltd [2011] NSWSC 1188 and V601 Developments Pty Ltd v Probuild Constructions (Aust) Pty Ltd [2021] VSC 849 and decided that, although entitlement to an extension of time may require a prospective assessment during the course of the works, the actual impact of a delay event can be examined retrospectively by reference to what ultimately occurred on the project. Applying that approach, the Court found that the relevant principal-caused delay events affected the critical path and entitled the contractor to substantial extensions of time.
The judgment also considered the prevention principle and the implied duty to cooperate.
A significant issue was the existing underground services at the site. The principal had represented that the services would be removed before Clarke arrived, but the works were not completed as expected. This contributed to disruption and delay.
The Court considered authorities including Growthbuilt Pty Ltd v Modern Touch Marble & Granite Pty Ltd [2021] NSWSC 290 and Spiers Earthworks Pty Ltd v Landtec Projects Corporation Pty Ltd [2012] WASCA 53.
The case demonstrates why contractors should carefully record what the principal has undertaken to provide or do, particularly in relation to site access, existing services, site conditions and conditions precedent to commencing work.
The decision highlights several practical points:
The decision is a useful reminder that while the contract remains central, the way the parties administer the contract during the project can also have significant legal consequences.
This article was written by Logan Smith, Law Graduate, Projects, Infrastructure and Construction.
Reference: Clarke Energy (Australia) Pty Ltd v Alinta Energy Transmission (Roy Hill) Pty Ltd [2026] NSWSC 1124.