Condition Precedents to the Extension of Time (EOT) Claims in Building and Infrastructure Projects: A Review of the Malaysian Litigation Cases

Abstract

Delays in building and infrastructure construction projects are a persistent issue that significantly affects the project completion and often results in legal disputes, increased costs, and reduced productivity. Generally, building and infrastructure construction contracts include Extension of Time (EOT) provisions to address delays and to protect the contractor from liquidated damages and penalties due to neutral events and delays caused by the employers. However, EOT claims frequently entangled with disputes due to contractors’ failure to fulfil the condition precedent required for such claims. This purpose of the study is to identify issues relating to the condition precedent for Extension of Time (EOT) claims based on the Malaysian litigation cases and to analyse the ground of judgment on Extension of Time (EOT) claim. The study examines building and infrastructure construction-related cases reported in the Malayan Law Journal (MLJ) from 2013 to 2023. A systematic methodology that incorporates a comprehensive literature review and data collection from court cases using PRISMA guidelines was employed in this research. The findings reveal several issues relating to condition precedent to EOT claims, which are notification requirements, causation, criticality of delay, substantiation of claims, and mitigation efforts. The analysis to the grounds of judgment on EOT claim litigation cases shows that courts often examine whether proper and timely notices were given as required by the contract, the need for clear and convincing evidence to establish the causation of delays, the criticality of the delay events and their impact on the project's critical path, the substantiation of claims with adequate documentation, and the contractor's efforts to mitigate delays. This study contributes to the understanding and raising awareness for contract parties to fulfil the condition precedent to EOT claims. The findings provide significant insights for the project stakeholders in improving claim management practices and reducing time-related disputes in the construction industry.