Time at Large in Construction: When EOT Clauses Fail

Time may become "at large" where the employer causes delay but the construction contract has no effective mechanism for extending the completion date for that event. When this happens, the original completion date generally stops applying, the contractor must instead complete within a reasonable time, and the employer may lose its contractual right to impose liquidated damages.

However, employer-caused delay does not automatically make time at large. If the contract already provides an EOT mechanism for that type of delay and the contractor simply failed to use it, the original contractual machinery may continue to apply.

What does "time at large" actually mean?

Construction contracts normally contain a fixed completion date.

That date matters because it determines when the contractor is late and when the employer may begin imposing liquidated and ascertained damages, commonly called LAD.

Time becomes at large when the fixed completion date can no longer fairly or legally be applied because of events for which the employer is responsible and the contract has no effective way of adjusting the date.

The contractor is not then given unlimited time to finish. Its obligation changes from completing by a fixed date to completing within a reasonable time.

This distinction is important because LAD usually depends on a specific contractual completion date. If that date is no longer operative, the contractual LAD mechanism may also cease to operate.

The Malaysian starting point: Sim Chio Huat

The leading Malaysian authority is Sim Chio Huat v Wong Ted Fui [1982] 1 MLRA 379.

The contract in that case contained a fixed completion period but did not contain an extension of time mechanism capable of dealing with the employer's acts of prevention.

The employer ordered additional work and was also responsible for delay in making the site available. The Federal Court held that the employer could not prevent completion and then rely on the original completion date to claim LAD.

Time became at large and the contractor was instead required to complete within a reasonable period.

The case established an important principle in Malaysian construction law: where the employer causes delay and the contract provides no machinery for extending time for that delay, the employer may lose the benefit of the original completion date.

What kind of employer conduct can trigger time at large?

There is no single list that applies to every contract.

Examples may include late possession of the site, substantial variations, delayed drawings or instructions, failure to provide materials or information that the employer was responsible for, or enlargement of the contractor's scope after the contract was entered into.

The important point is not simply that the employer did something wrong. The employer's conduct must actually have prevented or delayed the contractor's ability to complete on time.

In Infraprima Construction Sdn Bhd v Budaya Restu Sdn Bhd, the subcontractor's scope increased substantially because of design changes, but the subcontract did not contain an effective EOT mechanism for that event. The High Court held that the main contractor's act of prevention caused time to become at large and defeated its LAD claim.

This illustrates the connection between the prevention principle and the EOT clause. The question is not simply whether the employer caused delay, but whether the contract was capable of adjusting the completion date to deal with that delay.

The important modern limit: check the EOT clause first

This is where contractors need to be particularly careful.

If the contract already contains an EOT provision covering the employer-caused event, the contractor is normally expected to use it.

In Yuk Tung Construction Sdn Bhd v Daya CMT Sdn Bhd [2020] MLRAU 211, the Court of Appeal rejected an attempt to rely on the prevention principle where the contract contained an EOT mechanism but the contractor had failed to comply with the mandatory written notice requirement.

The Court recognised that acts of prevention do not automatically set time at large where the contract already provides a mechanism for extending time for those events. Allowing the contractor to avoid the notice requirement by relying on time at large would undermine the agreed EOT procedure.

This creates an important link with EOT claims.

A contractor who misses the EOT notice may lose more than the application for additional time. It may also lose one of its main arguments against LAD.

You still have to prove the employer caused delay

Time at large is not established merely by identifying an employer mistake.

The contractor must show that the employer's act actually affected progress and contributed to the inability to complete by the contractual date, in the same way a concurrent delay claim has to be traced to the critical path rather than asserted generally.

For example, an employer may issue a drawing late. If that drawing concerned work that was not due to start for another three months, the delay may have had no effect on completion.

The contractor should therefore be able to connect the employer's conduct to the construction programme, the affected activities and the eventual delay to completion.

This is why contemporaneous records are important. A contractor who first alleges employer delay years later in litigation, despite having said nothing about it in site meetings or correspondence, will face a much more difficult evidential problem.

What happens to LAD if time becomes at large?

The usual consequence is that the employer loses the ability to calculate LAD from the original contractual completion date.

The reason is straightforward. LAD is normally calculated by reference to a fixed date and a fixed daily or weekly rate. Once the original date is displaced and no replacement contractual date exists, there is no longer a date from which that contractual LAD calculation can properly run.

This does not mean the employer is left without any remedy.

Sim Chio Huat recognised that the loss of the contractual LAD mechanism does not necessarily prevent an employer from pursuing ordinary damages if the contractor later fails to complete within a reasonable time.

The difference is significant.

With LAD, the contract has already fixed the amount or rate. With an ordinary damages claim, the employer must prove the loss it actually suffered and establish that the contractor took longer than was reasonable in the circumstances.

What is a "reasonable time"?

There is no universal number of days.

What is reasonable depends on the project, the nature of the remaining work, the effect of the employer's delays, the contractor's own performance and the surrounding circumstances.

Time at large therefore does not allow a contractor to proceed indefinitely.

The contractor must continue progressing the works and should keep records showing why the eventual completion period was reasonable.

A contractor that stops progressing without justification may still commit a breach even though the original contractual completion date no longer applies.

Can an employer still terminate the contractor?

Potentially, yes, but the basis for termination must be considered carefully.

If an employer terminates solely because the contractor failed to meet an original completion date that has already ceased to apply, the termination itself may be vulnerable to challenge.

However, time being at large does not prevent termination for every other breach. A contractor may still face termination for abandonment, failure to proceed regularly and diligently, serious defective work or another contractual default.

The practical issue is therefore whether the employer is relying on a deadline that remains legally effective.

When does a time-at-large argument usually fail?

The argument is much weaker in three situations.

First, the contract contains an EOT clause covering the employer-caused event, but the contractor failed to submit the required notice. Yuk Tung is the clearest warning on this point.

Second, the contractor cannot prove that the employer's act actually delayed completion. An administrative mistake or late instruction does not matter if it had no real effect on the programme.

Third, the project records contradict the contractor's later allegation. If site minutes, correspondence and progress reports show that the contractor was struggling because of its own manpower, procurement or financial problems, it may be difficult to establish that the employer's conduct caused the critical delay.

A time-at-large argument therefore needs evidence, not simply an allegation that the employer contributed to problems on site.

What evidence should a contractor keep?

The most important documents are those created while the project is ongoing:

• the construction contract and the complete EOT clause;
• EOT notices and proof that they were served;
• drawing and instruction registers showing when information was requested and received;
• site possession and access records;
• variation instructions and revised drawings;
• site diaries, meeting minutes and progress reports recording the delay;
• the baseline and updated construction programmes;
• correspondence notifying the employer that its conduct was affecting completion; and
• records showing the contractor continued progressing the works and completed within a reasonable period.

For the employer, the same documents may show that the EOT clause covered the event, that no notice was served, or that the real cause of delay was the contractor's own performance.

Frequently Asked Questions

Does employer-caused delay automatically make time at large?

No. The contract must be examined first. If there is an EOT mechanism covering the event, the contractor will generally be expected to use it.

What happens when time becomes at large?

The original fixed completion date stops governing the contractor's obligation. The contractor must instead complete within a reasonable time, and the contractual LAD mechanism may cease to operate.

Can the employer still claim damages?

Potentially, yes. Even if LAD is unavailable, the employer may be able to claim ordinary damages if it proves that the contractor failed to complete within a reasonable time and caused actual loss.

What if I missed my EOT notice?

That can seriously weaken a time-at-large argument. Yuk Tung shows that a contractor cannot normally bypass a contractual EOT mechanism simply because the employer contributed to the delay.

Final takeaway

Time at large is an important protection where the employer has prevented timely completion and the contract gives no effective mechanism for adjusting the completion date.

It is not, however, an automatic defence whenever the employer causes delay.

The contractor must identify the employer's act of prevention, prove that it actually delayed completion, and show that the contract did not already provide an EOT mechanism capable of dealing with that event. If such a mechanism existed, the contractor should have used it.

For that reason, time-at-large disputes are usually decided by the contract and the project records created while the delay was happening.

Speak to JPP LAW

Justin, Poh & Partners, also known as JPP LAW, assists employers, main contractors, subcontractors and consultants with extension of time disputes, time-at-large arguments, LAD claims, concurrent delay, arbitration and construction litigation in Malaysia.

If an employer-caused delay has affected completion and you need to assess whether the contractual completion date or LAD mechanism remains enforceable, you may contact us to review the contract, EOT provisions and project records.

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Disclaimer: This article is for general information only and does not constitute legal advice. Whether time becomes at large depends heavily on the construction contract, EOT provisions, cause of delay, notices given and contemporaneous project evidence.