3 November 2026

The time bar you could not have complied with: Victoria s 13A

Since Act No. 43/2025, an adjudicator, court, arbitrator or expert can declare a notice-based time bar unfair where compliance was not reasonably possible or would have been unreasonably onerous.

Seven days from the event to notify, in writing, with a full quantification. The event was a latent condition found on a Friday afternoon by a crew who reported it on Monday. By the time anyone priced it the seven days were gone, and the contract says the claim is barred. In Victoria, that is now arguable.

What s 13A actually says

A notice-based time bar provision may be declared unfair in relation to a particular entitlement under the contract if compliance with the provision is not reasonably possible, or would be unreasonably onerous.

The declaration may be made by an adjudicator for the purposes of an adjudication under Part 3, by a court in a proceeding to recover money, release a performance security or enforce other rights under the contract, by an arbitrator, or by an expert appointed by the parties to determine a matter under the contract. Four forums, which matters: it is not a remedy that exists only inside adjudication.

What a declaration does, and what it does not

• The provision has no effect on the particular entitlement that was the subject of that adjudication or proceeding.
• It CONTINUES to have effect in other circumstances or proceedings under that contract or a related contract. One declaration does not delete the clause.
• The party alleging unfairness bears the onus of establishing it. This is not a presumption in your favour.

So it is an entitlement-by-entitlement remedy, argued each time, on evidence. Which tells you exactly what the evidence has to be.

What makes compliance "not reasonably possible"

The test is about the provision as applied to that entitlement, not about whether you were busy. The arguments that carry weight are the ones grounded in what was knowable and when: information that was in the other party's hands, an event whose consequences could not be quantified inside the notice period, a period that started running before anyone on site could reasonably have identified the event as a claim.

All three of those are provable only with a contemporaneous record. The date the condition was found, by whom, what was reported and to whom, and the date the cost became capable of being stated are the facts a declaration turns on, and none of them can be reconstructed convincingly two years later.

What to do anyway

Serve the notice. Late, incomplete, and marked as such, but serve it. Section 13A is a remedy for a bar you could not have met, not a reason to stop trying to meet it, and a late notice with a stated reason for its lateness is a far better starting point than silence followed by an argument about fairness.

• Record the event on the day, with photographs and the name of whoever identified it.
• Record when you told the other party anything at all about it, even verbally.
• Record when quantification became possible and why it was not possible earlier.
• Keep the notice you did serve, with its date, whatever state it was in.

What the product does with it

An event is captured on site with its date, its author, its photographs and their content hash, and the notice that follows hangs off the same record, so the interval between discovery and notification is a fact rather than an argument. The contractual notice period itself is not computed as a deadline, so the ordinary path is still to comply with it, and the record is what makes compliance provable.

General information, not legal advice. Whether a particular time bar is unfair under s 13A is decided case by case, and the onus is on the party who says it is.