29 June 2022
13 min read
#Property, Planning & Development, #Construction, Infrastructure & Projects
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Tales of low-balling advice on likely construction costs are common place. We take a look at a decision on an extreme example where the owners overcapitalised in the context of a cost-plus contract.
The appellants were the owners (Owners) of a property located in Kings Creek NSW (Property) and engaged the respondent (Architect) to design a renovation.
The Owners’ objectives included an extension to the existing house, as well as the construction of a pool, a tennis court and a sauna (Renovations). The Owners indicated that they had an initial budget of $300,000.
In April 2015, the Architect provided the Owners with “opinion on probable cost” for a preliminary design that estimated the cost of the Renovations at $590,000, excluding GST and other items.
The Owners then revised their budget to a figure of $600,000. The Owners and the Architect then refined the designs for the Renovations and a quote was sought from a builder.
In October 2015, a builder provided a quote for the Renovations of between $550,000 and $600,000, excluding the pool, sauna, tennis court, a driveway, and other works.
A different builder was engaged by the Owners, under a cost-plus contract in or about December 2015.
The relationship between the Owners and the Architect deteriorated in or about February 2016, and the work proceeded without the assistance of the Architect.
In June 2016, the builder advised that the cost of achieving the Owners’ objectives would exceed $1,000,000. This resulted in a descope.
The descoped Renovations cost approximately $781,000, but only increased the market value of the property by $330,000.
The Owners sued the Architect:
The trial judge found:
The Owners made their claim on a “no transaction” basis, that is, had the alleged representation not been made or the relevant duty been discharged, then they would not have carried out the Renovations, or transaction of entering into the building contract.
The trial judge found that the Owners had received the full value of the Renovations and therefore did not suffer any loss. Accordingly, the Owners were awarded only nominal damages for breach of contract, in the amount of $1,000.
There were two grounds of the Owners’ appeal. Firstly, that in having correctly found that the Architect breached the contract and negligently failed to advise the Owners about the likely costs of the building, and in relation to the selection of an appropriate building contract, by permitting the Owners to enter into a cost-plus contract with a builder who had not given a price, the primary judge erred in:
Secondly, the trial judge erred in failing to find that the Owners had not suffered loss of $451,000 in circumstances where:
In relation to the first ground of appeal, the Court disagreed with the trial judge’s finding that the Owners had not suffered loss. The Court reasoned that the Owners suffered loss as they did not receive a building to the value of their construction costs.
In relation to the second ground of appeal, the Court found that the Architect had a duty to advise on the:
Notably, the Court found that if the Architect felt himself unable or unqualified to give an accurate estimate of costs, he should have warned of that in writing and advised the Owners to obtain an estimate from a properly qualified professional. Failing to do so would be a failure to discharge his duty of care in negligence.
The Court upheld the first ground of appeal and in doing so found that the Owners had suffered loss and that such loss should be assessed on a “no transaction” basis. However, the Court refused the second ground of appeal, on the basis that there was insufficient evidence to find what a competent architect should have advised the Owners, given that the estimates of building costs and preliminary stage at which the design was developed suggested that the cost to realise the objectives of the Renovations would cost significantly more.
Put another way, in circumstances where the Owners were keen to commence building and they had received a quote from a builder for the amount of $550,000-$600,000 for works which excluded a significant portion of the Renovations, the Court found that the Owners’ position that they would have abandoned the Renovations had they known the exact cost was difficult to accept.
Further, the Court could not make a finding (due to insufficient evidence) that that Owners would not have entered into the building contract for the Renovations, had the Architect advised them that the cost of the Renovations would exceed $600,000. Had the Owners made out that point, it would have enabled the trial judge to award the damages sought by the Owners.
Accordingly, the second ground of appeal was dismissed, as was the appeal in its entirety, with costs of the appeal to the Architect.
Despite the near miss for the Architect in this case, it reinforces that:
Authors: Christine Jones & Nicholas Achurch
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Nelson v Ivy Landscapes Pty Ltd [2022] NSWCATAP 210
APPEAL – NSW Civil and Administrative Tribunal – internal appeal – application for leave to appeal pursuant to Civil and Administrative Tribunal Act 2013 (NSW), Sch 4, cl 12(1)(c) – new evidence not proved to have not been reasonably available at the time of the Tribunal hearing – no question of principle
Ochudzawa v Lepagier; Lepagier v Ochudzawa [2022] NSWCATCD 57
BUILDING AND CONSTRUCTION – Defects claim – oral agreement – implied term
Weston v Integra Windows and Doors Pty Ltd [2022] NSWCATAP 201
APPEALS – HOME BUILDING – responsibility of builder or supplier for defective work COSTS – procedural fairness – no opportunity to respond
GS & CS Holdings Pty Ltd v The Owners – Strata Plan No. 63227 [2022] NSWCATAP 206
LAND LAW – Strata Management – alleged unreasonable refusal of consent by lot owners to proposed amendment – pre-conditions to challenge of refusal – proper parties
Moody v M K Building Services Group Pty Ltd [2022] NSWCATAP 212
APPEAL – NSW Civil and Administrative Tribunal – internal appeal – Tribunal erred in fundamentally misunderstanding the appellants’ case and was therefore a constructive failure to exercise jurisdiction – restitution – money had and received – total failure of consideration – what is total – trivial or de minis benefit – benefit judged from the position of the innocent party – severability or apportionment of consideration BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – building dispute – rectification order – mandatory consideration – failure to consider a question of law
NSW
Bills assented to by Government
Statute Law (Miscellaneous Provisions) Bill 2022 – 16 June 2022
Regulations and other miscellaneous instruments
Residential Apartment Buildings (Compliance and Enforcement Powers) Amendment (Building Work Levy) Regulation 2022 LW 17 June 2022
Environmental Planning Instruments
Campbelltown Local Environmental Plan 2015 (Amendment No 30) LW 17 June 2022
Shoalhaven Local Environmental Plan 2014 (Amendment No 44) LW 17 June 2022
Wyong Local Environmental Plan 2013 (Map Amendment No 2) LW 17 June 2022
Central Coast Local Environmental Plan 2022 LW 24 June 2022
Inverell Local Environmental Plan 2012 (Map Amendment No 2) LW 24 June 2022
Ku-ring-gai Local Environmental Plan 2015 (Amendment 29) LW 24 June 2022
Mid-Western Regional Local Environmental Plan 2012 (Map Amendment No 4) LW 24 June 2022
Parramatta Local Environmental Plan 2011 (Amendment No 59) LW 24 June 2022
Parramatta Local Environmental Plan 2011 (Map Amendment No 1) LW 24 June 2022
State Environmental Planning Policy Amendment (Local Distribution Premises) 2022 LW 24 June 2022
Willoughby Local Environmental Plan 2012 (Amendment No 25) LW 24 June 2022
Willoughby Local Environmental Plan 2012 (Amendment No 26) LW 24 June 2022
Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.
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