Where parties to a construction contract have modified the standard AS 2124 clause 35.5 by substituting a clause expressly conferring 'absolute discretion' on the Superintendent with 'no obligation' to grant extensions of time, the Peninsula Balmain principle (that the Superintendent is obliged to act honestly and fairly in exercising the discretion) does not apply. An adjudicator under the Building and Construction Industry Payments Act 2004 (Qld) may include delay costs in a progress payment where the contractor is entitled to an extension of time even though one has not been granted, but cannot do so where the only basis for the extension is a discretionary power that imposes no obligation on the Superintendent.
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