Katrina Van Houtte (Partner) and Josiah Kemp (Solicitor) in Dentons’ Major Projects and Construction team explain why you need a strong paper trail when it comes to disputes.
The new year is an ideal opportunity to take a fresh look at your business and put in place some good habits to set you up for success in 2026.
Beyond the usual targets for obtaining new work and improving margins, a review of your record-keeping and information systems deserves some consideration. In the construction sector, disputes are commonplace, particularly in tight economic conditions, and they often turn on who has the stronger paper trail.
For contractors, having tidy records can determine whether a variation is paid, an extension of time is granted, or liquidated damages are avoided. It is not uncommon for us to advise contractors who appear to have genuine rights to claim for additional payment, only to find themselves unable to recover what they are owed because the supporting documentation was not there when it mattered.
We know that in the heat of a busy project, paperwork often takes a back seat to getting the job done. But that approach can cost you money in the long run. Taking even small steps toward more consistent record-keeping can make a significant difference when disputes arise. This article sets out some practical considerations that may help strengthen your position if things go sideways.
How good records strengthen your position
When a dispute reaches the Independent Certifier (or Engineer to Contract), adjudication, arbitration, or court proceedings, evidence is typically assessed by reference to several key factors:
Availability of contemporaneous records: Records created at the time events occurred carry significantly more weight than later reconstructions. A site diary entry made on the day of a delay will be more persuasive than a statement prepared months later for litigation purposes.
Consistency: Decision-makers look for alignment across different types of documentation, such as site diaries, emails, and formal notices. When these documents tell the same story, they reinforce each other and build a more compelling narrative.
Completeness: Missing or incomplete records can count against you, as decision-makers may draw negative conclusions or fill in the gaps with their own assumptions. Keeping regular, organised records shows professionalism and makes it harder for the other side to use gaps in your evidence against you.
Credibility: Contractors who maintain thorough records are generally regarded as more credible witnesses. Well-organised documentation reflects careful, diligent project management and enhances the weight that evidence is given by a decision-maker.
Record-keeping role in dispute scenarios
For Variation claims, robust record keeping is essential because the contractor bears the burden of proving entitlement.
Without clear and comprehensive records, it can be difficult to establish that a Variation occurred. Contractors should retain all correspondence that confirms what was allowed for in the tender, what may constitute an instruction to vary the work, along with confirmation emails, measurement records, cost breakdowns for labour, plant and materials, and photographs documenting the changed work.
Where an instruction is not expressly identified as a Variation but you think it is a Variation, seek written confirmation immediately. Under NZS 3910:2023, the Contractor should give notice within 20 Working Days of becoming aware that an Instruction involves a Variation, or as soon as practicable thereafter (the 2013 version provides a one-month notice period, or as soon as practicable thereafter).
While late notice does not result in an absolute loss of entitlement for an unamended 3910, it can lead to a proportionate reduction in the value of any Variation claim where earlier notification might reasonably have resulted in the impact being avoided or reduced. Special Conditions may alter these default time periods or impose strict time bars on claim notices, so it is important to review these carefully.
Keeping all records centralised and easily accessible allows legal advisers and other stakeholders to efficiently assess the validity of any claim.
Comprehensive documentation is equally critical for Extension of Time claims. Under NZS 3910:2023, contractors must give written notice of the circumstances relied on as grounds for the extension within 20 Working Days of becoming aware of them.
The 2013 version permits this notice to be given within 20 Working Days or as soon as practicable thereafter. The Contractor must also notify of the period of extension sought, which may be included in the first notice or given separately within a reasonable time thereafter. Depending on the nature of the extension, it is good practice to maintain site diaries recording weather conditions, resource levels, and the impact of specific delay events on the work (for example, what work was delayed, how many workers were affected, for how long, and what impact did that have on subsequent activities).
Time-stamped photographs of site conditions, access issues, or incomplete preceding work, together with correspondence with the Contract Administrator (or Engineer), provide further support. Updated programmes are essential to show how the delay affected the critical path and delayed completion.
Together, these records enable decision-makers to understand the cause and effect of the delay.
Daily site records are equally important for daywork claims. NZS 3910 permits daywork as a valuation method for certain Variations, and both the 2013 and 2023 versions emphasise the need for accurate, contemporaneous records.
Daily logs of labour (names, trades, hours), plant usage, and material quantities, ideally acknowledged by the Engineer or its representative, form the primary evidence of work completed. Ensure that you record details of the work they completed as well as who completed it, on your logs.
Good records reduce dispute costs
Getting the contract right from the start is essential, but when a dispute arises having the right contractual protections and mechanisms in place is only as useful as the records that support them.
Consistent documentation practices can provide the evidence needed to support claims and recover costs. Memories fade quickly. In an industry where disagreements are common, contemporaneous records often make the difference in how a dispute is resolved.
A well-organised filing system containing contemporaneous records, correspondence, and financial documentation can significantly reduce legal and expert costs if you are unable to resolve your dispute commercially.
Helping lawyers spend less time sorting information or chasing documents enables them to focus on providing efficient, targeted advice, which saves you money and will likely lead to better outcomes.
• This publication is not designed to provide legal or other advice and you should not take, or refrain from taking, action based on its content. Dentons does not accept any liability other than to its clients, and then only in relation to specific requests for advice. For specific advice, contact your legal advisor or the Major Projects and Construction team at Dentons on (09) 379 4196.
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