Claims Preparation | Construction Claims Lawyer | Construction.Lawyer

A well-prepared claim is a work of technical and legal precision. It is not merely a document that demands payment; it is a carefully constructed narrative that tells the story of what happened on a construction project, why it happened, who was responsible, and what financial or temporal consequences flowed from those events. At Construction.Lawyer, we understand that a compelling claim must be supported by irrefutable evidence, presented with forensic clarity, and grounded in the specific contractual and legislative framework governing the project. Our claims preparation service combines deep engineering expertise with sharp legal acumen, producing claims that stand up to scrutiny in any forum — whether adjudication under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (BIF Act), formal mediation, or litigation. Every claim we produce is purpose-built for its intended audience, and our process begins with an honest assessment of merit because telling you candidly whether your claim has substance before you invest significant resources is fundamental to our practice.

Types of Claims We Prepare

Variation Claims arise when a principal or superintendent directs work outside the original contractual scope, or when conduct implies a variation even where no formal direction was issued. Under standard forms such as AS 4000–1997 and AS 2124–1992, contractors are typically entitled to claim additional costs and extensions of time for variations provided they comply with strict notice provisions. We prepare variation claims that distinguish between directed variations, constructive variations, and claims made under protest, ensuring notice requirements under clause 40 of AS 4000 or clause 40.5 of AS 2124 are addressed, quantum is substantiated with contemporary cost records, and the valuation methodology reflects the contractually agreed basis.

Extension of Time (EOT) Claims seek additional time to complete the works where delay events have impacted the contractor's ability to achieve practical completion. Under Clause 35.5 of AS 4000 and Clause 35.5 of AS 2124, contractors must give notice of delay events and demonstrate causation between the event and the delay to completion. We prepare EOT claims drawing upon Critical Path Method (CPM) analysis using Primavera P6 or Microsoft Project, analysing baseline programmes and fragnet schedules to demonstrate how specific delay events — latent conditions, design changes, inclement weather, or principal-caused delays — impacted completion. We also address concurrent delay where both principal-caused and contractor-caused delays operate simultaneously.

Delay and Disruption Claims address financial losses arising when work is delayed or the contractor's planned sequence is disrupted, even where overall completion may not be extended. Delays generate real costs: extended site overheads, reduced labour productivity due to trade stacking or rework, and acceleration costs. We isolate additional costs attributable to each event using measured mile analysis or earned value techniques, ensuring the causal link is clearly established.

Prolongation Claims target additional costs from remaining on site longer than contemplated due to client-caused delays, including extended head office overheads using the Hudson, Emden, or Eichleay formulae, extended site overheads, additional insurance and bonding costs, and time-related facility costs. We distinguish time-related costs from those incurred in any event, and ensure claims account for the duty to mitigate.

Acceleration Claims arise where a contractor incurs additional costs recovering time lost to principal-responsible delay events, or where the principal directs acceleration explicitly. Constructive acceleration claims — where the principal's refusal of a legitimate EOT compelled acceleration — require proof the EOT was validly claimed, that the principal rejected it, and that the contractor incurred additional costs maintaining the original programme. Defects and Rectification Claims address defective design, workmanship, or materials, and we identify the applicable standards under the Building Act 1975 (Qld), the National Construction Code, and contractual specifications, quantifying rectification costs and addressing limitation periods under the Limitation of Actions Act.

The Elements of a Successful Claim

Every successful construction claim must establish three fundamental elements: liability, causation, and quantification. These three pillars support the entire claim, and a weakness in any one will cause it to fail regardless of how strong the other elements may be. At Construction.Lawyer, we rigorously test each element before submission because we know that a claim vulnerable on any front will not withstand the scrutiny of an adjudicator, mediator, or court.

Liability establishes the entitlement to relief under the contract or at law. To establish liability, we identify the specific contractual provision or legal cause of action — such as breach of contract, negligence, or restitution — that gives rise to the claim. A variation claim under AS 4000 must demonstrate the work falls within the definition of variation under clause 40 or constitutes a constructive variation by reason of the principal's conduct. A delay claim must show the event is one for which the contract entitles the contractor to relief — such as a latent condition under clause 25, a variation direction, or a suspension under clause 37. Where the claim relies on a statutory entitlement under the BIF Act, we ensure strict compliance with the statutory requirements. Without a clear legal basis, a claim is merely an invoice with an argument attached and it will not succeed. We have seen too many contractors invest heavily in claims preparation only to discover the complained-of event gives rise to no contractual or legal entitlement.

Causation is the link connecting the liability event to the loss or delay claimed. It is not enough to show a delay event occurred and the contractor suffered loss; the claim must demonstrate the loss was actually caused by that event. In delay claims, this requires forensic analysis of the critical path to show the event impacted critical activities and delayed completion. In disruption claims, it requires evidence the disruption event caused measurable productivity reduction on the affected work. In variations claims, it requires a clear link between the variation direction and the additional costs. The standard of proof for causation varies by forum — adjudicators under the BIF Act may apply a less rigorous standard than courts — but a claim with robust causal analysis will succeed in any forum. We frequently encounter claims where causation is assumed rather than demonstrated, and we invest significant effort building the causal chain with documentary evidence and programme analysis. A claim asserting "the principal caused delay and we lost money" without showing how the delay flowed to the bottom line is a claim that will likely fail.

Quantification is calculating the financial or temporal amount with precision and supporting every dollar with documentation. A claim that establishes liability and causation will still fail if the quantum is not substantiated. For delay claims, we quantify days attributable to each event using CPM analysis. For disruption, we quantify productivity loss using measured mile analysis. For prolongation, we calculate extended overheads using established formulae supported by actual financial records. The importance of contemporaneous records — diaries, daily reports, meeting minutes, site instructions, photographs, and correspondence created at the time of the events — cannot be overstated. Records created when events occur carry far more weight than retrospective explanations, and a claim built on contemporaneous evidence is genuinely difficult to challenge.

Global Claims and Why They Fail

A global claim — sometimes called a total cost claim — is one where the claimant seeks to recover the entire cost overrun or delay period without identifying individual events that caused the loss or demonstrating the causal link between each event and the attributable loss. In essence, a global claim says: "We planned to complete for this amount and in this time, and we actually spent much more and took much longer, so the difference must be the principal's fault." It is an approach that courts and adjudicators overwhelmingly reject, and for good reason.

The fundamental problem is that global claims fail to demonstrate causation — they assume rather than prove that every element of the overrun was caused by the respondent's breaches. Where multiple delay events have occurred, some caused by the principal and some by the contractor, a global claim makes no attempt to apportion responsibility. Where the contractor's own inefficiencies, poor management, or tender errors contributed to the overrun, a global claim ignores those factors entirely. As a result, global claims succeed in fewer than twenty per cent of cases that proceed to determination, and even where they succeed the recovery is typically a small fraction of the amount claimed. In our professional experience, they are a recipe for disappointment and wasted legal costs.

The leading authority remains Walter Lilly & Company Limited v Giles Patrick Cyril McKay [2012] EWHC 1773 (TCC), where Akenhead J confirmed that a global claim will fail if any matter for which the claimant is responsible contributed to the loss, unless apportionment is truly impossible. In City Inn Limited v Shepherd Construction Limited [2007] CSOH 190, the Scottish courts similarly rejected a global claim where the contractor failed to prove the principal's breaches were the sole cause of the cost overrun. These cases establish that a global claim is permissible only where disentangling individual causes is impossible — and even then, the claimant must show the respondent's breaches were at least the dominant cause. In practice this exception rarely applies because with proper record-keeping and forensic analysis, it is almost always possible to apportion the causes of delay and cost overrun.

The solution is preparing discrete claims for each individual event. Where a project has twenty separate delay events, we prepare twenty separate claims — each with its own liability analysis, causal link demonstrated through CPM analysis, and quantification supported by records. This approach is more labour-intensive but produces claims far more likely to succeed and which command greater respect from respondents and decision-makers alike.

Our Claims Preparation Process

Our process is methodical, rigorous, and tailored to each matter. We begin with a comprehensive Contract Analysis, examining the head contract, subcontracts, and relevant legislation to identify the provisions governing the claim — whether variation clauses under AS 4000 or AS 2124, delay and EOT provisions, or payment claim procedures under the BIF Act. We then conduct a thorough Records Review, examining all project records including correspondence, meeting minutes, site instructions, drawings, programmes, diaries, timesheets, cost reports, and photographs. Where records are incomplete, we identify gaps early and advise on strategy.

Following records review, we undertake a candid Merit Assessment evaluating strengths and weaknesses before significant costs are incurred. Where merit exists, we develop a Claim Narrative in plain English explaining the cause, effect, and legal entitlement. We prepare detailed Cost Substantiation quantifying the claim with precision, and where time is claimed, conduct forensic Delay Analysis using CPM techniques. We compile all evidence into a coherent, indexed bundle in a format suitable for its forum — whether BIF Act payment claim, adjudication application, mediation brief, or court pleadings.

Cost Substantiation Methods

The method by which a claim is quantified can be as important as its substantive merits. We select the most appropriate substantiation method for each claim, taking into account the claim's nature, available records, and forum requirements. We are experienced in all major methodologies and understand their respective strengths and limitations.

The Hudson formula applies the contractor's head office overhead percentage to the contract sum, divides by the original contract period for a daily rate, then multiplies by the delay period. Expressed as: (Head Office Overhead Percentage / 100) Ö (Contract Sum / Original Period) Ö Delay. It is simple and widely accepted but may produce inflated results where the contract sum includes substantial subcontracts, because the overhead percentage is applied to the entire sum rather than just the contractor's own work. We use it where it produces a fair result and its limitations can be addressed through explanation.

The Emden formula uses the contractor's actual company turnover rather than the contract sum: (Total Head Office Overheads / Total Company Turnover) Ö (Contract Sum / Original Contract Period) Ö Delay Period. Because it is based on actual financial performance from audited records, the Emden formula is generally considered more accurate than Hudson and we prefer it where reliable financial records are available. The Eichleay formula, derived from United States practice, calculates allocable overhead by taking the proportion of contract value to total turnover and applying it to total overheads. It is useful where the delayed project absorbed a disproportionate share of head office resources but is more complex and may be challenged where the contractor cannot demonstrate overheads were actually incurred during the delay period.

The actual cost method is the most compelling substantiation methodology where detailed records exist — it quantifies the actual additional costs that flowed from the delay or disruption event, supported by timesheets, invoices, and purchase orders. It is preferred by adjudicators and courts because it is grounded in real expenditure rather than theoretical formulae, but its application depends on the availability of detailed cost records. Measured mile analysis compares productivity on disrupted activities with productivity on the same or similar activities that were not disrupted — the "measured mile." The difference is attributed to the disruption event and the associated cost calculated by applying the productivity loss to labour and plant costs. It is a powerful tool for disruption claims where the contractor has maintained records of quantities installed and hours expended.

Why Our Claims Succeed

Our claims succeed because we are engineer-lawyers who understand both construction's technical realities and the legal framework for dispute resolution. Unlike traditional law firms that must engage external experts for scheduling, quantity surveying, or engineering, we bring that expertise in-house. Our principal Albert Merolla holds qualifications in engineering (MCIBSE, MRICS), project management (MAIPM), and law (JD, DJUR), with three decades on major Australian projects. We can read a programme, interpret a cost report, and analyse a delay event without external consultants — saving time and money while ensuring technical and legal aspects are seamlessly integrated. We write in plain English because adjudicators, mediators, and judges are not construction professionals. Most importantly, we approach every claim with intellectual honesty — we will not encourage pursuit of a claim lacking merit because candid advice serves both our reputation and your interests.

Frequently Asked Questions About Claims Preparation

How long does it take to prepare a construction claim? The time varies significantly depending on project complexity, the number of claim events, record quality, and the intended forum. A straightforward variation claim with good records may take one to two weeks, while a complex delay claim with multiple events and CPM analysis may take four to eight weeks. BIF Act adjudication claims must be prepared within strict timeframes — typically twenty business days. We advise engaging us as early as possible, as adequate preparation time is critical to success.

What records do I need to support a claim? Essential records include the contract and amendments, all correspondence, site meeting minutes, superintendent's instructions, design drawings and revisions, the baseline programme and updates, daily diaries, timesheets, cost reports, invoices, photographs, and weather records. Contemporaneous records carry far more weight than retrospective explanations. Where records are incomplete, we work with clients to identify alternative evidence and present claims addressing gaps transparently.

Can you help if my project records are poor? Yes. While comprehensive records are ideal, we have extensive experience with fragmented records. We identify alternative evidence sources, reconstruct events through witness evidence and expert analysis, and select substantiation methodologies that do not require detailed records. We will give an honest assessment of how record quality affects claim strength.

What is the difference between a BIF Act payment claim and a contractual claim? A BIF Act payment claim is a statutory claim for progress payment under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) or equivalent, operating independently of contractual rights with strict timeframes and form requirements. A contractual claim is made under the contract's terms — for variations, extensions of time, or damages — determined according to contractual provisions and general law. The two can overlap but are subject to different procedures and standards of proof, and we advise on the most appropriate mechanism for each case.

Contact Our Claims Preparation Team

If you are considering a claim for additional time, money, or both, contact us before committing significant resources. Our honest merit assessment could save you tens of thousands of dollars, and where your claim has substance, our preparation will give you the best prospect of success. The difference between a well-prepared claim and a poorly prepared one is often the difference between recovery and disappointment. Whether facing a complex delay claim, a straightforward variation, or an urgent BIF Act payment claim, our engineer-lawyers have the expertise to prepare a claim that stands up to scrutiny. Call 1300 710 864 or visit Suite 140, 167 Eagle Street, Brisbane QLD 4000. We also have offices in Sydney, Melbourne, Perth, and Darwin. Baker Merz Construction Lawyers (ABN 40 650 782 317) trading as Construction.Lawyer — the only RICS-regulated law firm in Australia.