Time at Large Under NZS 3910:2023 — When Liquidated Damages Become Unenforceable (NZ)

Steve Parker
Jul 20
6 min read

Quick answer: Under NZS 3910:2023, if the Principal causes critical delay and the extension-of-time mechanism does not, or cannot, move the completion date to cover it, the prevention principle can put time "at large." The fixed Date for Completion falls away, the Contractor is left only to finish within a reasonable time, and the Principal loses the right to liquidated damages for that period.

It is one of the most misunderstood corners of NZ construction law, and it turns the usual assumption on its head. The instinct is that a late Contractor always pays liquidated damages. But if the reason the job ran late is that the Principal held up the works — a late instruction, a Variation, restricted access, information that never arrived — and the contract's own extension-of-time machinery was never operated to account for it, the deadline the liquidated damages are measured against may no longer exist. When it does not exist, there is nothing for the damages clause to bite on.

What "time at large" actually means

"Time at large" describes the state a contract falls into when there is no longer a fixed, enforceable date by which the works must be complete. The Contractor's obligation does not disappear — it changes shape. Instead of finishing by a certain date, the Contractor must complete within a reasonable time, judged on the nature of the work, the events that occurred, and what a competent contractor could have achieved in the circumstances.

The practical consequence is the part that matters commercially. Liquidated damages are a pre-agreed rate — dollars per day or per week — payable for completion after the Date for Completion. Remove a certain Date for Completion and the arithmetic has no starting point. The Principal cannot say the Contractor is "40 working days late" because there is no fixed day to count from. The liquidated damages mechanism, however well drafted, cannot run.

The prevention principle: why the Principal's own delay can void the deadline

The doctrine behind this is the prevention principle — a long-standing rule of contract law that a party cannot hold the other to a strict obligation when its own conduct is what made that obligation impossible to meet. Applied to construction: a Principal who causes critical delay and then insists on the original completion date is trying to benefit from its own act of prevention, and the law will not allow it.

Where the prevention principle applies and there is no valid mechanism to extend the date for the Principal's own delay, time becomes at large and the fixed date is replaced by the reasonable-time standard. The classic statement of the rule for construction is the English Court of Appeal decision in Peak Construction (Liverpool) Ltd v McKinney Foundations Ltd (1970) 1 BLR 111, routinely cited in New Zealand: where delay is caused by the employer and the contract contains no applicable extension-of-time provision covering that delay, the employer loses the right to liquidated damages, because there is no date from which they can be calculated.

How NZS 3910:2023 is built to keep time from going at large

Here is the point most site teams miss: a well-drafted extension-of-time clause is not primarily the Contractor's benefit. It is the Principal's shield. The reason a standard form contains an extension-of-time mechanism that expressly covers Principal-caused delay is precisely to keep the completion date alive and preserve the liquidated damages remedy.

NZS 3910:2023 provides that machinery in section 10. The extension-of-time provisions allow the Date for Completion to be moved for qualifying causes — including delays caused by the Principal, by Variations, and by the Contract Administrator — and the liquidated damages provision (clause 10.5) then runs from the extended date rather than the original one. Operated correctly, the sequence is: Principal-caused delay occurs, the Contractor notifies, an extension is assessed and granted, the completion date shifts, and liquidated damages remain enforceable against the new date. Time never goes at large, because the contract has a valid route to account for the very delay the Principal caused.

That is why an experienced assessor treats the extension-of-time trail as protecting both parties. A Contractor who does not claim its extensions is exposed to liquidated damages it could have avoided. A Principal whose Contract Administrator fails to assess and grant extensions for the Principal's own delays is quietly dismantling its own damages remedy.

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When time can still go at large under a 3910 contract

Because section 10 is broad, time at large is harder to reach under NZS 3910:2023 than under a thin or heavily amended contract — but it is not impossible. The risk lives in a few places:

A qualifying cause the extension-of-time clause does not reach. If the Special Conditions have narrowed or deleted the grounds for extension so that a genuine Principal-caused delay has no route to move the date, the prevention principle can revive.
The mechanism exists but is never operated. If the Principal causes delay and no extension is ever assessed or granted — whether through oversight, refusal, or a Contract Administrator who does not act — the completion date is never validly moved, and an argument that time is at large becomes available.
Amendments that break the machinery. Special Conditions that make extensions conditional on steps the Contractor cannot realistically satisfy, or that strip the Contract Administrator's power to grant them, can leave the contract without a working route for the Principal's own delay.

This is exactly why the standard form should be read against its Special Conditions before anyone relies on the deadline. The base contract protects the Principal; the amendments are where that protection is most often lost.

Liquidated damages versus general damages once time is at large

Time at large removes liquidated damages — it does not hand the Contractor a licence to run late without consequence. If the Contractor then fails to finish within a reasonable time, the Principal can still pursue general damages for the additional period: the actual, proven loss caused by the unreasonable delay.

The difference is who carries the burden. Liquidated damages are automatic and require no proof of loss — the Principal simply applies the agreed rate. General damages must be proved: the Principal has to establish what a reasonable time was, that the Contractor exceeded it, and the actual loss flowing from that excess. That is a far heavier and less certain claim, which is why losing the liquidated damages remedy is a real commercial event for a Principal, not a technicality.

What this doesn't tell you

This is the standard-form position, and the standard form is only the starting point. Whether time is actually at large on a given job turns on the exact wording of your Special Conditions, the specific cause of delay, the notice trail, and — at the margins — legal questions about causation and concurrency that a clause reading cannot settle. Concurrent delay in particular complicates the picture: where a Contractor-culpable delay overlaps a Principal-caused one, the outcome on both time and damages is fact-specific and contested. Treat this article as a map of the doctrine, not advice on your contract. Where the sums are large, price a contingency for the notice and concurrency risk rather than assuming the deadline is either safe or gone.

Where a second opinion pays for itself

Time-at-large arguments are decided on the paper: your actual Special Conditions, the extension-of-time record, and the sequence of who caused what and when. A neutral, written read tells you whether the extension-of-time machinery in your contract genuinely covers the Principal's delay, whether it was ever operated, and whether the liquidated damages clause is enforceable or exposed. Trueworks provides that as an analyst — not as your lawyer or your engineer of record — so the assessment stands on its own terms and you know where you stand before the argument is had.

For the broader picture, see our guide to an independent building variation review. For the Principal's mirror-image remedy, see liquidated damages in NZ construction contracts, and for the Contractor's side of the same clock, extension of time and time bars under NZS 3910.

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