Architects and the Need to Put Key Communications in Writing
By Justin Cotton, Director, Lovegrove & Cotton – Construction and Planning Lawyers
A sound and reliable way of avoiding disputes for Architects is to ensure that key communications are habitually made in writing, rather than being confined to verbal discourse. Many a dispute we have seen involving Architects could have been avoided if the “paper trail” had been better maintained.
This applies to cost forecasts before extra or additional services are carried out by Architects, for example, before additional work over and above the contracted stages is commenced. Clearly this applies to a number of professions, and not just Architects.
If this is not done, and reliance is placed on recollections of what was verbally discussed, differences of opinion can arise about whether additional costs were properly communicated and agreed upon before extra services were committed to by the Architect.
Equally, disputes about the nature or content of a design brief can lead to court litigation if the brief is not properly clarified in writing at an early juncture. In a recent professional negligence case concerning the design of a school hall / gymnasium, the critical importance of Architects clarifying design briefs in writing was very much at the forefront.
The case concerned is Christian Education Ministries – Qld Ltd v Thomson Adsett Pty Ltd  QDC 292. This was a situation involving a professional negligence claim by the School against the designing Architects, where it was argued that the Architects had “gotten it wrong” and losses sustained by the Client as a result.
Thomson Adsett Pty Ltd had been asked as Architects to design a school hall at the Australian Christian College, and the brief was that the Hall was to be multi-purpose as both an assembly area and a sports gymnasium.
It was argued on behalf of the School that it had given express instructions to the Architects that the Hall must contain a full sized basketball court, the dimensions of which would be a minimum length of 32 metres, not less than 19 metres wide and with a minimum height to ceiling of 7 metres.
However, during later construction of the school hall by a Builder based on the plans drafted by the Architects, it was discovered that the height to ceiling would only be about 4.4 metres and insufficient for a full size basketball court. The Architects were instructed to redesign the Hall accordingly, but once the Hall had been designed and built to the appropriate dimensions the School had ended up paying a premium for what they said they wanted originally.
It was argued by the Architects that they had been told by a Mr Woodward (the School’s Principal) that given the small size of the student population that formal basketball games would not be played in the Hall. The problem was that there had also been an email from the CEO of Christian Education Ministries (Mr Fyfe) to the effect that the Hall should be “large enough for an indoor volleyball or basketball game” and the drawing that was given to the School did bear the words “full-sized basketball court”.
At the trial of the case the Architects called an expert witness (another Architect) who opined that Thomson Adsett had only drafted plans that matched the brief from the School. This opinion relied heavily on the verbal statement by the Principal (Mr Woodward) and the fact that there was no reference in the brief from the School to industry guidelines or specifications for a basketball court. For instance, there was no mention of any affiliations with a basketball authority or to sporting guidelines such as the International Basketball Federation Basketball Rules 2008.
Conversely, the legal case for the School was premised on the argument that even if there were contradictory signals from the School, the Architects had nevertheless failed to seek proper clarification on the instructions from the School before preparing the design. On that basis, it was argued that the Architects had either breached their retainer agreement or acted negligently in preparing a wrong design, or one that was not “fit for purpose”.
In the end, the Court accepted the argument from the School and found Thomson Adsett to be both negligent and in breach of their retainer, thus awarding damages of $505,004 against the Architects. It was found that not only should Thomson Adsett have sought to clarify the apparently contradictory instructions for the brief, that clarification should have been sought in writing before the design work started.
Therefore while it did appear that conflicting instructions had been given on behalf of those representing the School, the key theme arising out of the case was that where there were conflicting instructions, the Architects as the service providers bore the onus of obtaining a reliable clarification. Where they had failed to do so, they could not legitimately charge for correcting mistakes or escape liability for consequential loss and damage incurred by their Client.
This case then is a salutary warning for Architects in relation to the importance of seeking clear instructions in writing, and avoiding potential professional negligence claims in the future.
If in any doubt about your rights and responsibilities in regard to building matters, do not hesitate to contact experts in construction law, dispute resolution and contract advice.
Lovegrove & Cotton Lawyers to the building industry
For thirty years, Lovegrove & Cotton have represented builders, building surveyors and building practitioners in Melbourne, Canberra, Sydney and Queensland. Doyles Guide ranks Kim Lovegrove as one of the leading construction lawyers in Australia. Justin Cotton, likewise, is a leading Australian construction lawyer and widely respected in the building fraternity as evidenced by his recent elevation to Chairperson of the HIA Industrial Relations and Legal Services Committee, and member of the Regional Executive Council, for HIA Victorian Chapter. Lovegrove & Cotton can help practitioners resolve any type of building dispute and are preeminent in the area of building practitioner advocacy.
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