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Brisbane-Lawyer, Solicitor - Admitted 2005
Category: Australia Law
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Experience:  I did my law degree at the University of Queensland
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(AS4901-1988) A sub-contractor enters into a contract with

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(AS4901-1988) A sub-contractor enters into a contract with a Prime Contractor with LD's applicable to Separable Portions of the subcontract. The prime contractor has LD's only to the Practical Completion date of the Head Contract. The Superintendent (an employee of the Prime Contractor) verbally advises the sub-contractor that he had never applied LD's on a project and would be reluctant to do so on this project, even though the individual Separable portions were likely to overun on time to some extent. As a consequence of this advice the sub-contractor, does not pursue Extension of Time claims and so becomes time barred. The overall project is completed on time without the Prime contractor suffering LD's itself. The Superintendent then at the end of the contract witholds payment and applies LD's to the subcontractor claiming the subcontractor is time barred from EOT claims and therefore has no defence. Can the Estoppel principle be applied? What other legal principles apply? Can you suggest any legal cases that I can research?
Submitted: 5 years ago.
Category: Australia Law
Expert:  Brisbane-Lawyer replied 5 years ago.
The estoppal principle does not apply because of a remark made by the superintendent. These matters need to be set out clearly in the contract between the sub-contractor and the prime contractor.

Unfortunately the sub-contractor's position is very weak here, especially if he cannot prove the remarks made by the superintendent.

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Customer: replied 5 years ago.

Could you explain why this is not a variant of Promissary estoppel.


The Superintendent has indicated he was going to suspend an existing contractual rights - AS4901 gives the Superintendent no leeway in the application of LD's other than by granting and extension of time.


The subcontractor then acted on this promise by abstaining from pursuing EOT claims (detrimental reliance) as the Superintendent then refused to grant the Extension of time once the subcontractor was time barred.


The Superintendent did not give notice that he was reinstating his right to apply LD's until after the contract work was completed. Is this not unconsionable conduct under the Trades Practices Act?

Expert:  Brisbane-Lawyer replied 5 years ago.
<> Could you explain why this is not a variant of Promissory estoppal. <>

Because when there is a contract in place, the law of equity does not apply. Estoppal is a concept from equity law.
Customer: replied 5 years ago.
OK, so if the Superintendent indicates that he will not pursue an existing contractual right (to LD's) and on the basis of this the subcontractor alters his stance and agrees not to pursue his contractual rights (to EOT's) then after the Project is completed the Superintendent then applies LD's and asserts the subcontractor is time barred from EOT remedy, what defence can the subcontractor raise.
Expert:  Brisbane-Lawyer replied 5 years ago.
A section 52 Trade Practices Act claim for misleading and deceptive conduct.

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