Two contractors hit the same rock shelf, on the same job, on the same day. One recovers $94,000 and eighteen days. The other recovers nothing.
The difference is not the rock. It is that the first contractor stopped, photographed it, notified the Superintendent before touching it further, and could show what the tender information had led them to expect. The second dug it out over a long weekend to keep the programme, mentioned it in the next monthly claim, and by then had destroyed the only evidence that it was ever there.
Latent conditions are the most valuable claim available to a civil contractor and the easiest one to forfeit through ordinary site pragmatism.
The only question that matters
Everything in this guide reduces to one test, and it is worth stating before any of the mechanics.
Did the physical condition differ materially from what a competent contractor should reasonably have anticipated at the time of tender, having inspected the site and reviewed the information available?
Not “was it a surprise to you”. Not “was it in the geotechnical report”. The test is objective, it is set at tender date, and it is measured against a competent contractor rather than against you specifically. That is why a latent conditions claim is really an argument about the tender documents, litigated months after the tender closed — and why the file you built while pricing the job matters more than the photographs you take when you hit the rock.
What a latent condition is
Under AS 4000, clause 25.1 defines a latent condition as a physical condition on the site and its near surrounds which differs materially from the physical conditions that should reasonably have been anticipated by a competent contractor at the time of tender, if that contractor had inspected the site and its near surrounds and reviewed the information available.[1]
AS 2124 clause 12.1 is drawn similarly but with two differences worth knowing. It refers to physical conditions on the site or its surroundings, including artificial things but excluding weather conditions, which differ materially from the physical conditions which should reasonably have been anticipated by the contractor at the time of tender.[2]
| Element | What it means in practice |
|---|---|
| Physical condition | Something you encounter in or on the ground, not a commercial or administrative circumstance. Rock, groundwater, contamination, fill, buried structures, services. |
| Including artificial things (AS 2124, express) | Buried slabs, old footings, abandoned services, tanks, disused pits. This matters on brownfield and urban civil work more than any other element. |
| Excluding weather (AS 2124, express) | Rain is not a latent condition. Groundwater is. The distinction is between the weather event and the physical state of the ground. |
| On the site and its near surrounds | Extends beyond the boundary — an adjoining structure or an off-site condition affecting your work can qualify. |
| Differ materially | Not any difference. A degree of variance from a borehole log is normal and expected; materiality is a question of degree and it is judged against what the information conveyed. |
| Should reasonably have been anticipated | The objective test. Your actual expectation is not the standard. |
| At the time of tender | The date the test is applied. Information that emerges after tender close does not retrospectively change what you should have anticipated. |
What you are deemed to have anticipated
The clause does not leave “should reasonably have anticipated” undefined. Under AS 4000 the contractor is deemed to have anticipated conditions based on three sources.[1]
- Written information made available by the Principal for the purpose of tendering. The geotechnical report, service drawings, survey, contamination assessments, previous investigation reports — everything in the tender pack.
- Information influencing risk allocation that was obtainable by making reasonable enquiries. This is the sleeper. It captures dial-before-you-dig searches, publicly available geological mapping, council records, historical aerial imagery, and asset owner records. If a reasonable enquiry would have revealed it, you are treated as having known it.
- Inspection of the site and its near surrounds. What was visible on a site walk — surface rock outcrops, obvious fill, existing pits and covers, evidence of prior use.
Limb 2 is where most claims are lost, and it is entirely addressable at tender stage. A contractor who did not run a dial-before-you-dig search before pricing an urban trenching job will struggle to argue that the service they struck was unanticipated — the enquiry was reasonable, cheap and available.
The practical implication is uncomfortable but useful: your tender-stage enquiries are part of your claim. The searches you ran, the site inspection you attended, the questions you asked during the tender period and the answers you got are the evidence that establishes what you reasonably anticipated. Contractors who tender thoroughly are not only pricing better — they are building the file that protects them eight months later.
The experienced contractor test
The objective standard means the question is not what you knew but what a competent, experienced contractor in your position should have anticipated. That cuts both ways and it is worth understanding honestly.
Australian courts have long held that a party contracting to carry out work on or under land bears a duty to satisfy itself as to the nature and characteristics of that land, both at the surface and below it — a position expressed in Dillingham Constructions Pty Ltd v Downs in 1972 and reflected in the way latent conditions clauses have been drafted ever since.[3]
What that means for an experienced civil contractor:
- Known regional geology is anticipated. If you are excavating in an area where shallow sandstone is characteristic and widely known, encountering sandstone is not latent, even if the boreholes did not happen to catch it.
- Variability itself is anticipated. Boreholes are point samples. A competent contractor knows conditions vary between them. The claim arises from material difference, not from ordinary variation.
- Prior land use is anticipated where it is discoverable. Building on a former industrial site, a filled gully or a decommissioned depot carries expectations that a competent contractor is taken to hold.
- Your inexperience is not a defence, and your expertise is not a penalty — the standard is the competent contractor, not the most cautious one and not the least.
Where the test genuinely favours you is where the tender information affirmatively conveyed something that turned out to be wrong. A borehole log showing clay to four metres, at the exact location where you hit rock at 1.2 metres, is a material difference from information the Principal supplied — and that is the strongest form of latent conditions claim there is.
The notice — and why timing decides the claim
Here is the operational rule, and it is different from every other claim in construction.
Give notice promptly on discovery, and before the condition is disturbed.[1]
Every other claim can be reconstructed from records. This one cannot, because the subject of the claim is a physical thing that your own work is about to destroy. Once the rock is broken out, the contaminated material is carted, the buried slab is removed and the trench is backfilled, the evidence is gone permanently — and the assessor is being asked to accept a description of something nobody independent ever saw.
The instinct on site runs the other way. A crew that hits rock at 10am on a Thursday wants to deal with it and keep going, and stopping feels like a failure of initiative. On a latent conditions claim, stopping is the claim.
The notice should identify the general nature of the latent condition and how you propose to deal with it, so that the delay to the project is minimised.[1] That second element matters — a notice that only announces a problem invites a slow response, while one that proposes a way forward invites a direction you can act on.
| Step | Do this | Why |
|---|---|---|
| 1 · Stop work at the location | Not the whole site — the affected work front | Preserves the condition and demonstrates you did not proceed unilaterally |
| 2 · Record it before anything moves | Photographs with a scale object and a visible date, video walking the face, survey pickup of levels and extent, sample retention where relevant | This is the only chance. Photographs of a completed excavation prove nothing about what was in it |
| 3 · Notify the same day | Written notice to the Superintendent — what was found, where (chainage and level), how it differs from the tender information, and your proposed approach | Satisfies the promptness obligation and starts the process while the evidence still exists |
| 4 · Invite inspection | “The condition is exposed at ch. 240 and available for inspection until Friday” | Converts your evidence into shared evidence. A Superintendent who inspects cannot later dispute what was there; one who declines has waived the point |
| 5 · Await a direction where practicable | Ask how they want it dealt with | A directed method is a valued method. Choosing your own and claiming afterwards invites an argument that a cheaper approach existed |
| 6 · Record costs separately from day one | Dedicated cost code; daily plant, labour and materials against that code alone | See the 28-day trap below |
Step 4 is the highest-value line in this guide. An inspection by the Superintendent, or a recorded invitation they declined, converts the entire evidentiary question from contested to settled.
Clause 25.2 and the information request
Once notified, the Superintendent may require further information, and clause 25.2 sets out what can be asked for: a description of the latent condition, how it differs materially from the conditions that should reasonably have been anticipated, the additional work and resources estimated to be required, the estimated additional time and cost, and any other details reasonably required. The response is to be given promptly after the request.[1]
Treat that list as the template for your original notice. If you provide those five things up front, you compress the process by a fortnight and you frame the entitlement question in your own words rather than answering theirs. In particular, the second item — how it differs materially from what should have been anticipated — is the whole claim, and it is far better argued by you on the day than reconstructed later.
Answering it well means being specific about the comparison. Not “we did not expect rock” but: Borehole BH-04, located 11 metres from the excavation, logs residual clay to RL 42.1 with no rock refusal recorded. Excavation at ch. 238–247 encountered continuous sandstone requiring rock breaking from RL 44.8, some 2.7 metres above the logged interface, over a length of 9 metres. That paragraph is worth more than ten photographs, because it does the analytical work for the assessor.
How it is valued, and the 28-day cost trap
Under AS 4000, a latent condition is deemed to be a variation and is priced accordingly under clause 25.3.[1] That is a valuable routing, because it takes you into the variation valuation hierarchy — agreed price first, then contract rates, then contract rates reasonably adjusted, then a reasonable amount determined by the Superintendent. The mechanics are set out in our guide to variations in civil construction contracts, and the step-3 adjustment argument is usually the relevant one here, because a rock excavation rate priced for isolated pockets rarely suits a continuous shelf.
Now the trap, and it is a specific and expensive one.
Costs incurred more than 28 days before you gave notice are excluded.[1]
This is not a time bar on the claim — it is a cut-off on recoverable cost. A contractor who encounters progressively worsening ground over six weeks, deals with it, and notifies at the end recovers only the last 28 days of cost. The first four weeks are gone regardless of the merits.
Civil work makes this easy to fall into, because latent conditions often arrive gradually. The subgrade gets softer over a fortnight. The fill gets deeper as you move along the alignment. There is no single dramatic moment, so there is no obvious trigger to notify. The discipline that answers it: notify on the first indication, not on confirmation. A notice that says “conditions at ch. 180–210 are presenting materially wetter than the tender information indicated; we are monitoring and will provide further detail” costs nothing and preserves everything.
The AS 2124 route
AS 2124 handles latent conditions at clause 12 and gets to a similar destination by a different road. The clause sets out a procedure for the contractor to notify the Superintendent of the latent condition encountered and of the extra cost and extra time occasioned in dealing with it.[2]
The important mechanical difference is the link to variations. Where the Superintendent determines that the conditions are ones to which clause 12.1 applies, and considers that a variation to the work under the contract is necessary, the Superintendent must order a variation under clause 40.[2] Under AS 4000 the condition is deemed a variation; under AS 2124 the Superintendent is obliged to order one. Either way you end up in the variation valuation machinery, but under AS 2124 there is an intermediate determination you may need to press for.
Time runs on its own track under both forms. Under AS 2124 clause 35.5, a delay caused by a latent condition may be claimed as an extension of time, within 28 calendar days of becoming aware of the cause of the delay.[2] As always, the time claim is separate from the money claim — see our guide to extension of time and delay cost claims.
| AS 4000-1997 | AS 2124-1992 | |
|---|---|---|
| Latent conditions clause | Clause 25 | Clause 12 |
| Weather expressly excluded? | Not in the same express terms | Yes — “excluding weather conditions” |
| Artificial things expressly included? | Covered by “physical conditions” | Yes — express |
| Route to payment | Deemed a variation (cl 25.3) | Superintendent must order a variation under cl 40 where necessary |
| Cost cut-off | Costs incurred more than 28 days before notice excluded | Check the executed form and special conditions |
| Time claim | Clauses 34.2–34.3 | Clause 35.5 — 28 days |
Geotechnical reports, disclaimers and reliance
Almost every civil tender pack includes geotechnical information, and almost every one carries a disclaimer saying the information is provided for information only, is not warranted, and must not be relied upon — that tenderers must draw their own conclusions.[4] The same disclaimer sits behind the assumptions in a retaining wall design, as our guide to retaining walls and earth retention sets out.
Contractors read that and conclude the report is worthless to a claim. That conclusion is too strong, and it costs money.
The disclaimer generally addresses reliance and misrepresentation. It does not, by itself, remove the latent conditions clause. The latent conditions test asks what a competent contractor should have anticipated from the information available — and the geotechnical report is information that was made available. A disclaimer saying “do not rely on this” does not convert a borehole log showing clay into a document that put you on notice of rock. Where a geotechnical report is materially incorrect or incomplete, a contractor may still claim for latent conditions if impacts arise.[4]
What the disclaimer does do is shift the burden of investigation toward you, and it makes limb 2 of the anticipation test — information obtainable by reasonable enquiry — work harder against you. It also means the sensible approach is contractual rather than evidential: where the contract permits, address reliance expressly during the tender period, and clarify how ground risk is allocated and whether reliance on the supplied reports is permitted.[4]
- Read the geotechnical report properly, not just the summary. The borehole locations relative to your actual excavation, the depth of investigation against your depth of work, the date of the investigation, and the scope limitations are all more informative than the conclusions page.
- Note what is absent. Four boreholes across 900 metres of alignment is a thin investigation, and saying so in writing during the tender period is both a pricing position and a claim position.
- Ask the question during the tender period. “Is the contractor entitled to rely on the geotechnical information provided?” is a legitimate clarification. A refusal to confirm reliance is itself informative — it tells you to price ground risk.
- Do not accept blanket ground-risk transfer without pricing it. Where a contract allocates all site-condition risk to the contractor, that risk has a price. Accepting it silently at a competitive rate is a decision to absorb an uncosted exposure.
What is not a latent condition
Claiming things that are not latent conditions damages the claims that are. The common misfires:
| Situation | Why it fails | What it might be instead |
|---|---|---|
| Rain, and the mud that follows | Weather is expressly excluded under AS 2124 and is dealt with by the time provisions in any event | A qualifying cause of delay — time, usually not money |
| Groundwater at a level the report recorded | The information disclosed it; you are deemed to have anticipated it | Nothing — this is a pricing issue |
| A service shown on the drawings but in a slightly different position | Minor positional variance is normally anticipated; the service itself was disclosed | Possibly a variation if the change in position materially changes the work |
| Rock in an area known for shallow rock, with no contrary information | A competent contractor should have anticipated it | Nothing |
| More of a scheduled item than the schedule showed | Quantity, not condition | Remeasurement under a schedule of rates |
| A design that does not work | Not a physical site condition | A variation, or a design-responsibility issue |
| Difficult access you saw at the site inspection | Visible on inspection, therefore anticipated | Nothing |
The civil catalogue: what actually gets claimed
Across road, drainage, subdivision and utility work, genuine latent conditions cluster into a short list.
- Rock above the logged interface — the classic. Strongest where boreholes are close to the excavation and clearly logged something else.
- Undisclosed fill — uncontrolled fill, buried demolition rubble, or a filled watercourse in an area presented as natural ground. Very common on subdivision sites with prior use.
- Buried structures — old footings, slabs, tanks, pits, disused headwalls. Squarely within AS 2124’s “artificial things”.
- Unrecorded services — live services absent from asset owner records and from dial-before-you-dig responses. Note that the strength of this claim depends heavily on having run the searches.
- Contamination — asbestos in fill, hydrocarbon impact, acid sulfate soils where the assessment did not identify them. Expensive, because disposal and handling costs escalate immediately.
- Groundwater materially above recorded levels — particularly where dewatering was not priced because the report showed a lower water table.
- Soft or unstable subgrade at variance with the reported CBR or classification, requiring undercut and replacement.
- Adjacent structures in worse condition than disclosed, requiring additional support, underpinning or protection.
The project-type context matters to how these present. Deep excavation and trench support issues dominate water and sewer work; undercut and subgrade variance dominate road and resurfacing projects; undisclosed fill and contamination dominate subdivision and land development.
Contamination and asbestos: the special case
Contamination deserves separate treatment because it is the one latent condition where stopping work is not merely a claims tactic — it is a legal and safety obligation, and the two considerations point the same way. Contractors who meet contaminated ground regularly rather than accidentally treat it as a market in its own right — see our guide to landfill, remediation and contaminated land.
Encountering asbestos in fill, hydrocarbon-impacted soil, acid sulfate soils or unexpected waste changes your position on three axes at once:
- Work health and safety. Exposure controls, licensed removal where applicable, notification obligations and air monitoring may all engage immediately. This is not a matter of contractual preference — the obligations sit on you as the person conducting the business or undertaking, and they attach the moment the material is identified. Your WHS management plan and the relevant safe work method statements should already contemplate unexpected finds, which is one of the reasons the discipline in our guide to WHS management plans and SWMS matters beyond the tender.
- Environmental and waste regulation. Classification of the material, disposal to a licensed facility, tracking documentation and, in some jurisdictions, notification to the regulator. Disposal costs for classified waste can be many multiples of clean spoil, which is why the commercial impact escalates so quickly.
- Contractual entitlement. The latent conditions claim itself, on the ordinary test.
The practical sequence differs from ordinary latent conditions in one important respect: you stop and secure the area first, and notify second. The evidentiary logic in §05 still applies — do not disturb it — but here the reason is regulatory as well as commercial, and no principal can reasonably direct you to continue.
Three things are worth doing at tender stage on any site with prior industrial, agricultural or fill history:
- Ask whether a contamination assessment exists and, if so, obtain it. An absent assessment on a site with obvious prior use is itself informative, and asking the question in writing forms part of your reasonable enquiries.
- Check the historical aerial imagery. It is free, it takes ten minutes, and prior structures, filled gullies and depot uses are usually visible. This is precisely the kind of reasonable enquiry that limb 2 of the anticipation test contemplates.
- Price the disposal risk separately, or seek a provisional item. Contaminated material disposal is the classic candidate for a provisional sum or provisional quantity, and it is a far better answer than either absorbing an unquantified exposure or loading a rate that costs you the job.
Where contamination is encountered and the contract has transferred site-condition risk to you, the position can become genuinely serious rather than merely expensive — disposal costs on a contaminated subdivision site can exceed the entire contract margin. That is one of the clearest cases for the risk-based decline discussed in §13.
A worked notice
What a good latent conditions notice looks like. Short, factual, specific about the comparison, and proposing a way forward.
| Element | Worked wording |
|---|---|
| Subject | LC-01 — Notice of latent condition — rock, ch. 238–247 — [contract number] |
| The clause | “We give notice under clause 25.1 of the General Conditions of a latent condition encountered on site.” |
| What and where | “At approximately 10:15am on 14 July 2026, excavation for the trunk drainage line encountered continuous sandstone at ch. 238, commencing at RL 44.8 and continuing to ch. 247.” |
| The comparison — the whole claim | “Borehole BH-04, located approximately 11 metres from the excavation alignment, logs residual clay to RL 42.1 with no rock refusal recorded. The material encountered is some 2.7 metres above the logged interface and extends over a length of 9 metres.” |
| Preservation | “Work at this location has stopped and the condition remains undisturbed. Photographs and survey pickup have been taken.” |
| Inspection invitation | “The condition is exposed and available for inspection until close of business Friday 17 July. Please advise if you wish to attend.” |
| Proposed approach | “We propose to proceed by rock breaking with a hydraulic hammer and to remove material to a licensed facility. We estimate 3 additional working days and additional cost in the order of $58,000, to be substantiated.” |
| Time reservation | “This work is on the critical path. An extension of time claim will follow under clause 34.3.” |
| The request | “Please provide a direction as to how you wish this condition to be dealt with. If our understanding is incorrect, please advise before we proceed.” |
That notice does seven jobs at once: it engages the clause, starts the 28-day cost window, records the comparison in your words, preserves the evidence, transfers the inspection decision to the Superintendent, preserves the time claim, and asks for a direction that will determine the valuation method. It takes about fifteen minutes to write and it is the difference between the two contractors in the opening paragraph of this guide.
How principals amend the clause
Latent conditions clauses are among the most heavily amended provisions in government and council contracts, because ground risk is exactly what a principal wants to transfer. Read for these before you sign.
| Amendment | Effect | What to do at tender |
|---|---|---|
| Clause deleted entirely | All ground risk sits with you | Price it, or qualify the tender where qualifications are permitted. This is a material commercial term, not a technicality. |
| Notice made a condition precedent | Late notice extinguishes entitlement | Brief every supervisor. The rule becomes “stop and call the office”, not “deal with it”. |
| Shortened notice period — 7 or 3 days, or “immediately” | Compresses an already tight window | Same-day notification becomes mandatory, not best practice. |
| Monetary threshold — no claim below $X | Small conditions absorbed by you | Know the threshold; aggregate related conditions where the contract allows. |
| Deemed-knowledge clauses widened | You are taken to have anticipated more, sometimes including anything discoverable by any investigation | The most common and most effective amendment. It shifts limb 2 dramatically — price accordingly. |
| Express non-reliance on site information | Reduces the force of a report that turns out to be wrong | Raise reliance as a clarification during the tender period and keep the answer. |
| Time granted but costs excluded | You get the programme relief, not the money | A significant risk on ground-heavy work. Quantify the exposure before pricing. |
Where a contract deletes or guts the latent conditions clause, that is a legitimate go/no-go input rather than a detail — our go/no-go framework treats uninsurable, unpriceable risk transfer as a decline signal, and total ground-risk transfer on a deep excavation job is exactly that. Recording that transfer, and deciding whether to price it or qualify it, is what our guide to the tender risk register is for.
Pricing site risk at tender stage
The most useful thing in this guide is not the claim procedure. It is the recognition that latent conditions are a tender-stage problem that occasionally becomes a post-award claim.
- Assess the adequacy of the investigation, not just its conclusions. Count the boreholes. Map them against your work. Check the depths against your excavation depths. A four-borehole investigation over 900 metres tells you the ground risk has not really been investigated — it has been sampled.
- Run the reasonable enquiries and keep the results. Dial-before-you-dig, geological mapping, council records, historical imagery. Cheap, quick, and they define your protected position under limb 2.
- Attend the site inspection and record what you saw. Photographs and notes from the tender inspection are evidence of what was and was not visible.
- Ask clarifications in writing and keep the answers. Questions about reliance, about the extent of investigation, and about known prior use are all legitimate, and the answers form part of the information available to you.
- Price the residual risk explicitly. Where the clause is intact and the investigation is reasonable, carry less. Where the clause is gutted or the investigation is thin, carry a real allowance and know what it is — see our guide to pricing strategies for government tenders on pricing risk that evaluators do not see.
- Use provisional sums or provisional quantities where the documents permit. Rock excavation and contaminated material disposal are the classic candidates. It is a better answer than either absorbing the risk or pricing yourself out of contention — the mechanism is covered in our guide to bills of quantities, provisional sums and PC sums.
The evidence you cannot recreate
Every other claim type in construction can be reconstructed, imperfectly, from records that survive. This one cannot, and that asymmetry justifies a specific standing instruction to everyone on your sites.
If the ground is not what we expected: stop, photograph, call the office. Do not dig it out and tell us later.
That instruction has to sit with the excavator operator and the leading hand, not the contracts administrator, because they are the ones who see it first and the ones whose next thirty minutes of work will destroy it. Contractors who brief this at induction recover latent conditions claims. Contractors who rely on the office to notice at claim time do not.
What to capture, in order of value:
- Survey. Levels and extent of the condition, picked up before it is removed. The single most persuasive record because it is measured, not impressionistic.
- Photographs with a scale reference and a date — a staff, a shovel, a marked stake. Wide shots showing location plus close shots showing material.
- Video walking the exposed face while describing chainage and depth aloud.
- Samples retained and labelled, particularly for contamination or material classification disputes.
- Truck dockets and weighbridge records for material removed — quantity evidence that is independent of your own measurement.
- Site diary entries written the same day, in the ordinary course, not composed later.
- The inspection record — who attended, when, what was said.
The wider records system that supports this — diaries, notices, registers and the discipline that keeps them current — is set out in our guide to contract administration for civil SMEs.
The short version
- The test is objective and set at tender date: what should a competent contractor have anticipated from the information available, reasonable enquiries and a site inspection?
- Notify promptly and before you disturb it. This is the one claim whose evidence your own work destroys.
- Invite inspection. A Superintendent who looks, or who declines to look, has settled the evidentiary question for you.
- Under AS 4000, costs incurred more than 28 days before notice are excluded — notify on the first indication, not on confirmation.
- A geotechnical disclaimer does not delete the latent conditions clause, but it does make your own tender-stage enquiries matter more.
- Read the clause before you sign. A deleted or gutted latent conditions clause is a pricing decision and sometimes a no-bid decision.
References
This guide is general information for Australian civil construction businesses and is not legal or geotechnical advice. Latent conditions clauses are heavily amended in practice and entitlement depends on the executed contract and on the specific site information provided. All examples are illustrative. Obtain advice on any claim of significance.
- AS 4000-1997 General conditions of contract, clause 25 — latent conditions, as described in Turtons Lawyers, How to claim for a latent condition under AS 4000. Clause 25.1 defining a latent condition as physical conditions on the site and its near surrounds which differ materially from those which should reasonably have been anticipated by a competent contractor at the time of tender, had that contractor inspected the site and its near surrounds and reviewed the information available; the contractor deemed to have anticipated conditions on the basis of written information made available by the Principal for the purpose of tendering, information influencing risk allocation obtainable by making reasonable enquiries, and inspection of the site and surrounding area; the obligation on discovery to give prompt notice to the Superintendent before the condition is disturbed, identifying the general nature of the latent condition and how the contractor proposes to deal with it so as to minimise delay; clause 25.2 permitting the Superintendent to require further information including a description of the latent condition, how it differs materially from what should have been anticipated, the estimated additional work, resources, time and cost, and other details reasonably required, with the response to be provided promptly after the request; clause 25.3 providing that the latent condition is deemed a variation and priced accordingly, with costs incurred more than 28 days before notice excluded. ↩ ↩ ↩ ↩ ↩ ↩ ↩
- AS 2124-1992 General conditions of contract, clauses 12, 35.5 and 40, as described in Turtons Lawyers, How to claim for a latent condition under AS 2124 and What is a qualifying cause of delay under AS 2124?; South Australian Department for Infrastructure and Transport, AS 2124-1992 Special Conditions Template; and LC Lawyers, Latent Conditions, Building Work and Legal Liability. Clause 12.1 defining latent conditions as physical conditions on the site or its surroundings, including artificial things but excluding weather conditions, which differ materially from the physical conditions which should reasonably have been anticipated by the contractor at the time of the contractor’s tender; the clause providing a procedure for the contractor to notify the Superintendent of the particular latent condition encountered and any extra cost and extra time occasioned in dealing with it; the requirement that where the Superintendent determines that the physical conditions are conditions to which clause 12.1 applies and considers a variation to the work under the contract necessary, the Superintendent must order a variation under clause 40; clause 35.5 providing that a delay caused by a latent condition may be justified with a claim for an extension of time, claimed within 28 calendar days of becoming aware of the cause of the delay. ↩ ↩ ↩ ↩
- Dillingham Constructions Pty Ltd v Downs [1972] 2 NSWLR 49, as discussed in LegalVision, What is a Latent Conditions Clause? and Gordon Smith Legal, Latent Conditions and the Experienced Contractor Test — the observation that a party who has contracted to carry out building work on or under land is duty bound to satisfy itself of the nature and characteristics of the land, both on the surface and below it. ↩
- LegalVision — What is a Latent Conditions Clause?; Blaze Business & Legal — Latent Conditions: Dealing with a Latent Condition at Site; Bellrock — Latent conditions: The silent killer of civil construction projects; Muscat Tanzer — Construction Claims Article Series: Different Site Conditions Claims. Common practice of principals providing tenderers with geotechnical information subject to disclaimers stipulating that the information is not guaranteed or cannot be relied upon and that contractors must draw their own conclusions; the position that where a geotechnical report is materially incorrect or incomplete the contractor may still claim for latent conditions if impacts arise; guidance that contractors should avoid accepting blanket disclaimers unless the risk is priced accordingly, and should clarify in the contract how ground risk is allocated and whether reliance on supplied reports is permitted; and the importance of the contract addressing whether site data such as geotechnical reports, surveys or environmental data is provided for information only and the extent to which the contractor may rely on its accuracy and completeness. ↩ ↩ ↩