Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Manfredini & McCrae v NSW Architects Registration Board [2021] NSWCATOD 116 Hearing dates: 30 April, 31 July, 24 September 2020; submissions closed 1 December 2020 Date of orders: 16 August 2021 Decision date: 16 August 2021 Jurisdiction: Occupational Division Before: L Pearson, Principal Member P O'Carrigan, Senior Member M von Kolpakow, Senior Member Decision: (1) The decision under review is set aside and the following decision is made in substitution for that decision: (a) Luisa Manfredini is guilty of unsatisfactory professional conduct; (b) Pursuant to s 43(4)(a) of the Architects Act 2003, Luisa Manfredini is reprimanded; (c) Pursuant to s 43(4)(g) of the Architects Act 2003, Luisa Manfredini is ordered to pay a fine of $550; (d) David McCrae is guilty of unsatisfactory professional conduct; (e) Pursuant to 43(4)(a) of the Architects Act 2003, David McCrae is reprimanded; (f) Pursuant to s 43(4)(g) of the Architects Act 2003, David McCrae is ordered to pay a fine of $550. (2) Within 30 days of the publication of these orders, the funds held in trust by the solicitors for the architects are to be paid as follows: (a) NOT FOR PUBLICATION (b) NOT FOR PUBLICATION Catchwords: OCCUPATIONS – architects – complaint – disciplinary determination – reprimand – fine – order for refund - application for review – whether conduct breach of code of conduct – whether unsatisfactory professional conduct – appropriate disciplinary orders Legislation Cited: Administrative Decisions Review Act 1997 Architects Act 2003 Architects Regulation 2012 Architects Regulation 2017 Building and Construction Industry Security of Payment Act 1999 Civil and Administrative Tribunal Act 2013 Cases Cited: Dascalu v NSW Architects Registration Board [2012] NSWADT 213 Doyle v Registrar, NSW Architects Registration Board [2006] NSWADT 154 Hirst v New South Wales Architects Registration Board [2008] NSWADT 12 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 Psychologists Registration Board of Australia v Coleman (Review and Regulation) [2013] VCAT 738 Texts Cited: NSW Architects Code of Professional Conduct Category: Principal judgment Parties: Luisa Manfredini and David McCrae (Applicants) NSW Architects Registration Board (Respondent) Representation: Counsel: M Baroni (Applicants) K Curry (Respondent) Solicitors: Barry Nilsson Lawyers (Applicants) Meridian Lawyers (Respondent) File Number(s): 2019/00183327 Publication restriction: Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013, publication of bank account details in the Tribunal orders is prohibited. REASONS FOR DECISION 1. On 13 June 2019 Luisa Manfredini and David McCrae (the architects) applied to the Tribunal for administrative review of a decision made on 15 May 2019 by the NSW Architects Registration Board (the ARB) in relation to a complaint made against them under the Architects Act 2003 by former clients, relating to architectural services provided in respect of a proposed renovation to their home. 2. The complaint, as summarised by the ARB in Part 4 of its Determination, alleged: 1. The architects provided a false certification by a Quantity Surveyor (QS) on the Cost Report accompanying the Development Application submitted in March 2017, which misled them and the Council as to the estimated cost of the proposed renovation, and in December 2017 advised the complainants that the Cost Report was based on the design as at May 2016; 2. The architects failed to deliver the services under the contract in the agreed timeframe despite the complainants' repeated attempts to have the architects set out what was required to achieve the timeframe; 3. The architects failed to appropriately and professionally manage consultants engaged by the complainants; 4. The architects failed to communicate in a professional manner including by not providing meeting reports and by low standard written communications; 5. The architects repeatedly threatened the complainants with action under the Building and Construction Industry Security of Payment Act 1999 (the SOPA) despite that legislation not being intended to apply to residential construction work; 6. The architects omitted key aspects of the design which were set out in the original brief such as air conditioning; 7. The architects invoiced the complainants for amounts to which they were not entitled under the contract. 1. The findings of the ARB, with reference to the provisions of the NSW Architects Code of Professional Conduct (Code of Conduct) as in effect from 1 September 2017, were provided in Part 12 of the Determination made on 15 May 2019 as follows: 1. Provision of architectural services generally: 1. While the architects could provide a higher estimated cost of works without obtaining the complainants' agreement of that estimated cost, issuing invoices based on a higher estimated cost of works which was not agreed suggested that the architects did not act with integrity in providing their architectural services: a failure to comply with cl 4(1)(a) of the Code of Conduct; 2. While the complainants failed to consider delays caused by their conduct, requested changes and need for designs, and did not always provide prompt information or instructions, the failure to meet the agreed timeframe that construction would commence in January 2018 in order to be able to occupy the property a year later was to a significant extent due to the architects' failure to provide the services with reasonable promptness and in accordance with the agreed or in a reasonable time frame as far as was permitted by the provision of instructions to the architects by the complainants: a failure to comply with cl 4(2) of the Code of Conduct; 3. While the architects suggested the complainants engage a QS in August 2017, the next mention of engaging a QS was December 2017, and they should have impressed upon the complainants earlier and more sufficiently of the necessity of engaging a QS to re-estimate the cost: a failure to comply with cl 4(5) of the Code of Conduct; 4. Given the specificity of the complainants' instructions with respect to budget and the requested timeframe, the architects failed to advise the complainants as soon as reasonably practicable of those things that would prevent the architect from following the instructions, eg cost increases/delays: a failure to comply with cl 14 of the Code of Conduct; 1. Provision of information to clients and prospective clients: 1. While understating the estimated costs of works to Council did not amount to a breach of the Code of Conduct, in the circumstances the architects' failure to inform the complainants of the increased costs of works until months later was a failure to provide sufficient information with reasonable promptness to enable the complainants to make informed decisions; and given the substantial discrepancy between the cost estimate at March 2017 and the estimate prepared in December 2017 and the awareness of the architects that the March 2017 cost estimate was not accurate, the architects should have provided such information to the complainants much earlier in order to enable them to make decisions about the provision of architectural services: a failure to comply with cl 6(1) of the Code of Conduct; 2. The architects failed to provide the complainants with timely sufficient cost information to enable them to make decisions about the provision of architectural services: a failure to comply with cl 6(2) of the Code of Conduct; 3. The architects failed to take all reasonable steps to inform the complainants of the decisions required with respect to engaging a QS to provide a cost report and the reasons for which the QS was required to be engaged and did not ensure the complainants were informed of the implications of the decision to engage or not engage a QS: a failure to comply with cl 6(3) of the Code of Conduct; 4. The architects did not sufficiently advise the complainants of the likelihood of achieving their objectives with respect to time and cost: a failure to comply with cl 6(4) of the Code of Conduct; 5. While the Code of Conduct does not explicitly require an architect to provide meeting records, the architects' agreement to provide weekly updates created an obligation of the architects, and the architects did not provide meeting reports after that agreement: a failure to comply with cl 6(6) of the Code of Conduct; 1. Client agreements and fee structures: 1. While the architects may provide a higher estimated cost of works without obtaining the complainants' agreement to the estimated cost, issuing retrospective invoices increasing the fees for stages previously invoiced based on a higher estimated cost of works not agreed to by the complainants, and the issuing of invoices based on additional services charged at an hourly rate when the architects did not inform the complainants in advance when such work was to be undertaken, did not reflect the fee structure specified in the contract: a failure to comply with cl 7(3) of the Code of Conduct; 1. Dealings with public: 1. On various documents including tax invoices and architectural plans the architects did not include the architects' registration numbers: a failure to comply with cl 17(1)(c) of the Code of Conduct; 2. On various documents including business letterhead and website publications the architects did not include identification of the nominated responsible architects: a failure to comply with cl 17(2)(a) of the Code of Conduct. 1. The ARB found that the complainants should have paid fees based on the estimated cost of works of at most $1.054m, and there was a difference of $34,101.10 between the actual amount of fees invoiced based on $1.5m estimated cost of works (ECW) and the fees payable on $1.054m ECW, and the architects should refund some part of that difference. 2. Based on the findings that the architects had failed to comply with clauses 4(1)(a), 4(2), 4(5), 14, 6(1), 6(2), 6(3), 6(4), 6(6), 7(3), 17(1)(c), and 17(2)(a) of the Code of Conduct, the ARB concluded that each of the architects was guilty of unsatisfactory professional conduct, as defined in s 32 of the Architects Act. Pursuant to s 43(4) of the Architects Act, the ARB reprimanded each of them, ordered them to refund the amount of $25,000 being part payment for the architectural services that were the subject of the complaint, and imposed a fine on each of $2,200. That fine was calculated at $550 for failure to comply with each of clauses 4, 6, 7 and 17 of the Code of Conduct. 3. On 3 July 2019 the orders made, and the publication of the decision on the Register of Disciplinary Actions, were stayed pending further order of the Tribunal, subject to payment of the sum of $29,150 into the trust account of the architects' legal representative. Function of the Tribunal 1. Section 44 of the Architects Act provides that a person in respect of whom the ARB has made a disciplinary finding may apply to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 (the ADR Act) of that finding and any action taken by the ARB under s 43. 2. The Tribunal has been constituted for this administrative review in accordance with the requirements of cl 5 of Sch 5 to the Civil and Administrative Tribunal Act 2013, which provides: (1) The Tribunal, when exercising its substantive Division functions for the purposes of the Architects Act 2003, is to be constituted by 3 Division members as follows— (a) 1 member who is an Australian lawyer, (b) 1 member who is an architect but not an Australian lawyer, (c) 1 general member who is neither an architect nor an Australian lawyer. 1. The task of the Tribunal on administrative review is stated in s 63 of the ADR Act: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 1. Section 63(1) of the ADR Act requires the Tribunal to determine what is the correct and preferable decision, based on an assessment of the material before the Tribunal, including the ARB's Determination, and additional evidence not before the ARB. 2. In Doyle v Registrar, NSW Architects Registration Board [2006] NSWADT 154 the former Administrative Decisions Tribunal explained the function of the Tribunal in proceedings for review of the ARB's decision in the following terms: 18 This is a disciplinary matter. Two principles need to be kept in mind. One, allegations of misconduct are to be proven on the balance of probabilities to a level of satisfaction commensurate with their seriousness and mindful of the consequences for the practitioner – the so-called Briginshaw principle: Briginshaw v Briginshaw (1938) 60 CLR 336. Two, the purpose of disciplinary proceedings is protection of the public, not punishment of the practitioner. As noted in Craig v Medical Board of South Australia [2001] SASC 149 at [41]: 'The purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to criminal law. A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practise from practising, or making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal should consider the protection of the public, and the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession.' 1. The Tribunal is not bound by the rules of evidence in these proceedings. The standard of proof is the civil standard on the balance of probabilities. The applicable principles are those discussed by the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, namely, that the strength of evidence needed to establish a fact or facts may vary according to the nature of what it is sought to prove, particularly where as in this matter the allegations are serious, and the consequences if those allegations are found to be established are serious. Background 1. Luisa Manfredini and David McCrae are registered architects, practising as MM+J Architects. In 2015 Mark Decker and Claudia Pritchitt (the complainants) engaged MM+J Architects to provide a concept design for a proposed renovation to their home in a Sydney suburb. 2. An Initial Client and Architect Agreement for Partial Services: Concept Design was executed on 8 September 2015. On 28 January 2016 the complainants signed the AIA Client and Architect Agreement 2009 edition (CAA) to provide architectural services being concept design, design development, town planning/development application, construction documentation, contractor selection, and contract administration. 3. David McCrae signed the CAA on behalf of MM+J Architects. The complainants liaised solely with Mr McCrae from 2015 until late 2017. On 8 December 2017 Luisa Manfredini took over as principal with responsibility for the provision of services to the complainants. 4. On 7 March 2018 Ms Manfredini emailed the complainants serving a Notice to Suspend Works pursuant to the SOPA. The architects made a payment claim under the SOPA on 16 July 2018, and adjudication proceedings under the SOPA were finalised on 28 September 2018. 5. On 16 July 2018 the complainants made the complaint to the ARB. 6. The architects submitted a response to the complaint on 11 September 2018. The complainants submitted their response on 3 October 2018, and two supplementary responses on 4 and 17 October 2018. On 17 October 2018 the architects submitted their final response. The ARB issued a provisional determination on 21 March 2019, and the architects responded on 23 April 2019. The ARB's final Determination was issued on 15 May 2019. The Client and Architect Agreement 1. The relevant provisions of the CAA are as follows. 2. The CAA describes the Project as "renovations & additions to a 2 storey detached house including new carport & swimming pool & sub surface excavations". 3. Part C Cost provides: The client and architect must agree an initial budget for the Cost of Works. The client agrees that their initial budget for the Total Project Cost appropriately takes into account the initial budget for the Cost of Works. Estimates of the Cost of Works may be revised during the project and such revisions must be in accordance with client or consultant advice, tenders or offers received and any adjustments during construction. As revised estimates of the Cost of Works are prepared, the client and the architect must agree the adjusted budget for the Cost of Works. As revised estimates of the Cost of Works are prepared, the client agrees that the adjusted budget for the Total Project Cost appropriately takes into account the agreed adjusted budget for the Cost of Works. Estimates of the Cost of Works are not a guarantee of the actual cost, a quotation or a tender. C.1 Total Project Cost The Total Project Cost is inclusive of GST and is defined as the Cost of Works plus all other costs to the client associated with the project, including but not necessarily limited to: * Removal and relocation costs * Design and construction contingencies, including escalation costs * Architectural, consultant and other professional fees * Authority fees and charges * Legal fees * Landscaping * Loose furniture, fittings and equipment * Finance charges, marketing and promotional costs The architect is not responsible for monitoring or controlling the Total Project Cost for the client. C.2 Cost of Works The Cost of Works is exclusive of GST and is defined as the final cost of all work designed, specified or scheduled by the architect, including all work designed, specified and/or scheduled by specialist consultants coordinated by the architect, including: A the final adjusted contract price (excluding GST) in accordance with any building contract, plus B the equivalent final cost (excluding GST) of any work or items supplied to the building contractor by the client (as if provided by the building contractor under the building contract), plus C the final cost (excluding GST) of any part of the project provided under a contract other than the building contract. At the execution of this Agreement the initial budget for the Cost of Works (excluding GST) is as stated on page 1. 1. The "Agreed initial budget for the Cost of Works (refer Clause C.2)" was specified in the CAA as $700,000 (excl GST). 2. Part D Time states: The client must inform the architect of their initial program for the project and from this, the client and the architect must agree an initial program for the architect's services. The initial program may be revised during the project by mutual agreement in writing. 1. Part E Fees provides: Fees for the architect's services will be on the basis of at least one of the following: * A percentage of the Cost of Works * A lump sum fee * An hourly rate fee * If applicable, a combination of these The agreed basis of fees is set out in Schedule E1. All fees are GST exclusive, with accounts submitted under this agreement to be tax invoices as applicable Additional services required by the client after this agreement is signed will be assessed at an agreed hourly rate, or as otherwise agreed in writing. The total percentage or lump sum fee shown in Schedule E1 takes precedence over any error, omission or ambiguity in the amounts allocated to individual services or invoiced at stages prior to the final invoice. 1. Schedule E1 provides the basis of fees for the project milestones to be an hourly rate fee for the Concept Design, and a percentage fee for the Design Development, Town Planning, Construction Documentation, Contractor Selection and Contract Administration stages. 2. Section E1 states: E.1 Percentage Fees Where Percentage Fees apply, the total percentage fee is allocated to specific architect's services as shown in Schedule E1. Percentage Fees are calculated and adjusted progressively against the budget for the Cost of Works adjusted in accordance with Clause C, subject to final adjustment against the Cost of Works, when determined. 1. Clause E provides that additional services required by the client after the agreement is signed "will be assessed at an agreed hourly rate, or as otherwise agreed in writing." 2. Section E.4 Fee Invoices provides that fee invoices may include amounts due for services provided up to the day before the date of invoice; and may be submitted monthly or as otherwise agreed in writing. Section E.6 states that the architect is entitled to suspend provision of services if any payment in relation to a properly submitted invoice is overdue. 3. Section F Other Specialist Consultants provides for specification of engagement of specialist consultants either directly by, and paid by, the client, or by the architect as part of the architectural fees. For any specialist consultant engaged directly and paid by the client, the engagement is on the basis that the architect is not responsible for the services provided by the specialist consultant, the architect is responsible for coordination of the specialist consultant's services, and the client is to pay all the fees and disbursements. Schedule F lists the specialist consultants to be engaged by the client, which includes "Quantity surveyor/cost consultant", "Structural/civil engineer", "Planning consultant', "Landscape architect", and "Interior design consultant". 4. Appendix 1 to the CAA specifies the architectural and specialist services likely to be required during the course of a residential project, providing more detailed information than that summarised in Section A Core Architectural Services. For A1 Concept Design, it provides for up to two Design Options to be presented to the client, in hand drawn format, and including a summary of Council controls, and preliminary estimate of Cost of Works. For A2 Design Development it states: Design: Electronic drawings of plans, sections, elevations Amendments: Up to two amendments to the selected design are included in this stage (refer to Notes below). Estimate of Cost of Works: It is recommended that the client appoints a qualified Quantity Surveyor to calculate the Cost of Works prior to proceeding with the next stage. 1. Appendix 1 specifies the drawings, plans and other documentation, and requirements for attendance at pre-DA and Council meetings for A.3 Development Application, and the plans, details, sections and schedules to be provided for A.4 Construction Documentation. 2. The Notes state: Appointment and co-ordination of consultants: The architect will assist the client to appoint the consultant and co-ordinate their work. The co-ordination includes providing a brief, drawings, answering queries, meetings if required. Design changes initiated by the client: Up to two amendments of the selected Design Option are included for each stage. An amendment is a minor non-substantial variation to the principles of the selected Design Option. This includes the moving of rooms affecting the circulation path and/or building envelope. A new Design Option is a change to the brief including the addition or deletion of rooms or functions. Fee structure: The Estimate of Construction Cost varies throughout the project – it begins as the client's budget, then becomes the architect's Opinion of Probable Cost (OPC), then the Contract Sum, excluding GST. It is not always a reflection of the actual cost. The Estimated Construction Cost adjusts the whole of the fee per the quoted percentages. Fee adjustments up or down made during the service apply to all stages (ie retrospectively). … 1. Appendix 2 to the CAA provides a list of services that the architect may provide for corresponding additional fees, to be charged at an hourly rate, for the Concept Design, Design Development, Development Application and Construction Documentation stages. That list includes provision of more than two design options at the Concept Design stage, and more than two amendments to the selected Design Option at the Design Development stage. The list includes for the Construction Documentation stage Interior design including joinery details at 1:20, interior colour schedule and schedule of fittings/fixtures, lighting, window/door hardware and tiling. The Notes to Appendix 2 provide for an hourly rate if several quotations from each specialist group of consultants are required, and for an hourly rate for more than two amendments to the Design Option at any stage for design changes initiated by the client. Agreed Facts 1. The following summary is based on the Statement of Agreed Facts filed by the parties on 29 July 2020. Quantity Surveyor: BDA Consulting Pty Ltd 1. On 3 February 2016 Bruce Davies of BDA Consulting Pty Ltd (BDA) provided a quote to Mr McCrae on behalf of the complainants for quantity surveying fees relating to the property. In April 2016 the complainants provided instructions to Mr McCrae to retain BDA to provide a preliminary budget estimate at concept design stage. BDA issued a preliminary Budget Estimate to Mr McCrae on 19 May 2016, which was provided to the complainants during a meeting on 21 May 201[6]. On 23 May 2016 Mr McCrae emailed the complainants requesting a budget revision given the budget estimate had come back at $1,159,657 inclusive of GST and anticipated Builder's Margin, and sought confirmation that the revised budget estimate was acceptable. On 6 June 2016 Mr Decker emailed Mr McCrae confirming a "revised ECW of $1,000,000". 2. On 10 March 2017 Mr McCrae emailed documents and drawings to Mr Davies who was then on holiday in New Zealand, requesting him to complete a Cost Report to be submitted to Willoughby Council (the Council) for the development application. On 12 March 2017 Mr Davies sent the signed Cost Report to Mr McCrae, noting total construction costs of $1,054,234. On 15 March 2017 the complainants sought an update from Mr McCrae on the progress of the QS doing his work and the plans going to Council as it was six months behind schedule. On 16 March 2017 Mr McCrae advised that the Cost Report had been signed by the QS and that it was ready to submit to Council. On 30 May 2017 the complainants received a copy of the final documents submitted to Council, which included the Cost Report. Development Application 1. On 22 March 2017 the development application (DA) was lodged with Council, including the Cost Report signed on 11 March 2017 which indicated the project would cost $1,275,623. On 29 May 2017 Mr McCrae lodged amended drawings with the Council in order to reduce the maximum floor space ratio to within 10% limit. Development consent was issued on 6 June 2017. Revised Budget Estimate 1. On 21 July 2017 Mr McCrae advised the complainants that construction costs had increased and that the complainants needed to obtain a revised ECW. In subsequent email communication: 1. Mr McCrae recommended on 17 August 2017 that the project be repriced to take into account all that had been added and adjusted and increased constructions costs since the start of the project, and that there be another repricing prior to tendering; 2. on 19 August 2017 the complainants stated that they expected that the total cost of the project would be above the ECW on which Mr McCrae was basing his invoices, $300k above the $700k in the engagement, and expressed reluctance to pay a QS to tell them something that they knew when the builder's tender would confirm the actual price; 3. on 20 August 2017 the complainants proposed an agenda for a meeting on the following day including an item on whether a QS update was needed; 4. on 28 September 2017 the complainants emailed stating that they had reviewed the QS estimate from March 2017 which was $1.054m (excluding the pool and landscaping), acknowledged that Mr McCrae had suggested that the updated design be re-estimated, and requested advice as to the specific areas of the design that caused concern relating to the estimate; and 5. on 28 September 2017 Mr McCrae stated that general construction costs had risen since the actual costing was done in May 2016, the pool was more elaborate, additional joinery had been added and the structure was more elaborate. 1. On 27 December 2017, after she had taken over as principal with responsibility for provision of services to the complainants, Ms Manfredini provided a Revised Budget Estimate (the Pre-Tender Estimate), and stated that as an updated Estimate had not been carried out the estimate was provided based on their knowledge and experience, based on the additional scope of works added to the project. Ms Manfredini recommended that a qualified QS be engaged to prepare a Cost Estimate pre-tender for a more accurate costing. 2. Mr Decker responded on 28 December 2017, stating that they appreciated the updated cost estimate which was "a useful tool", and there was an element of "sticker shock". Mr Decker stated that there may have been some misunderstanding or miscommunication about the QS, and explained that he had not pursued the QS work, because they felt the market would tell them the answer, and they had assumed the price estimate of March 2017 included in the development application submission related to the plans submitted for approval, and not the May 2016 plans. Ms Manfredini responded stating that they still recommended obtaining a Pre-Tender estimate from a QS which would provide a basis for assessing the tenders received from builders. On 29 December 2017 Mr Decker responded stating that they did not dispute that Mr McCrae had suggested getting an updated QS estimate, however he had not explained that the cost estimate submitted as part of the DA was the May 2016 one based on the then-current plans; and he requested that the QS quote be obtained. 3. On 5 January 2018 Ms Manfredini advised the complainants that the QS had indicated it would take 2 to 3 weeks to provide a Pre Tender Estimate and the timing close to issuing the documents for tender may not be worthwhile. She proposed setting the Cost of Works on the Pre-Tender Estimate rounded down to $1,500,000, and provided an invoice based on that amount for 70% completion (Invoice 12). The complainants responded on 10 January 2018 stating that they did not accept the proposed amendment to the ECW, and wanted to examine options to reduce the cost of the works including why a 10,000L water tank was required. The email requested a response to the query as to the QS Cost Report and the May 2016 and development application drawings. Ms Manfredini responded on 18 January 2018 stating that they were unable to provide further drawings or documents or attend further meetings or provide further advice until the invoice was paid. Mr Decker by email on 23 January 2018 requested MM+J not to undertake further work until the matters raised had been resolved. 4. On 7 March 2018 Ms Manfredini emailed to the complainants a Notice to Suspend Works pursuant to the Building and Construction Industry Security of Payment Act 1999 (the SOPA). The Architects' practice 1. The registration documents provided as annexures to the affidavit of Dr Kirsten Orr, Registrar of the ARB, affirmed on 29 July 2020, confirm the following. 2. Manfredini McCrae Architects Pty Ltd was registered on 5 October 2011. Luisa Manfredini and David McCrae were nominated responsible architects for Manfredini McCrae Architects Pty Ltd trading as Manfredini McCrae Architects from 18 October 2011. On 13 March 2018 Luisa Manfredini notified the ARB of the new name of the corporation, Manfredini McCrae & Jansen Architects Pty Ltd and the new trading name, MM+J Architects. On 6 November 2018 Luisa Manfredini notified the ARB of the new name of the corporation, Manfredini McCrae Architects Pty Ltd. 3. The documents provided by Dr Orr confirm the change of name of the corporation, and the reversion to the name Manfredini McCrae Architects Pty Ltd from October 2018, and that throughout the relevant period both Luisa Manfredini and David McCrae were the nominated architects for the firm. 4. As noted in [5] above, the ARB determination and orders were made against both Ms Manfredini and Mr McCrae. An issue in the proceedings, discussed below, is whether any deficiencies or omissions in the provision of architectural services to the complainants are attributable to both architects, or in respect of each separately at different times. The SOPA adjudication 1. The position of the parties was that the SOPA adjudication determination of 28 September 2018 that the complainants pay the architects $55,275.00 is not relevant to the present proceeding. 2. The ARB's position is that the only relevance of the SOPA process, initiated by the architects on 16 July 2018, is that it is the mechanism by which that amount was paid by the complainants as included in the architects' calculation of the amounts paid. The ARB submits that it, and correspondingly the Tribunal, has the power pursuant to s 43(4)(b) of the Architects Act to order a refund of amounts paid for architectural services that are the subject of the complaint. Further, in response to the SOPA application the complainants only challenged the applicability of the process, and not the merits of the claim itself, and the SOPA adjudication accordingly did not amount to an assessment of the merits of the amount claimed by the architects. 3. The architects submit that if the complainants were dissatisfied with the adjudication determination they should have appealed and chose not to, and the architects are entitled to the benefit of the adjudication undisturbed. 4. The SOPA adjudication documents are included in Vol 3 of the s 58 documents, and in exhibit A5. The adjudicator determined that the complainants' challenge to jurisdiction was not established, and that there was jurisdiction to determine the adjudication. The amount awarded, $55,275.00, included $17,325.00 for Invoice 12; $8,250.00 for work previously uninvoiced in Invoice 5; $24,750 retrospective adjustment to previous invoices for the difference between $1m cost of works and $1.5m proposed by the architects; and $4,950 for additional architectural services at an hourly rate. Legislation 1. Part 4 of the Architects Act provides for complaints and disciplinary proceedings. Section 32 defines "professional misconduct" and "unsatisfactory professional conduct": professional misconduct means— (a) unsatisfactory professional conduct of a sufficiently serious nature to justify the suspension of an architect or the cancellation of an architect's registration, or (b) any other conduct that is declared by the regulations to be professional misconduct for the purposes of this Act. unsatisfactory professional conduct means any of the following— (a) any contravention by the architect of the conditions of the architect's registration, (b) a failure by the architect to comply with a provision of any code of professional conduct established by the regulations and in effect under section 7, (c) any failure without reasonable excuse by the architect to comply with a direction, order or requirement of the Board, Tribunal or Supreme Court, (d) any failure without reasonable excuse by the architect to properly supervise the provision of architectural services by an architect corporation or architect firm while the architect is a nominated architect responsible for the provision of those services, (e) any failure by the architect to comply with the applicable requirements of the Licensing and Registration (Uniform Procedures) Act 2002, (f) any contravention by the architect of this Act or the regulations, (g) any conduct of the architect that demonstrates that the architect is not a fit and proper person to be registered as an architect, (h) any other conduct of the architect that demonstrates incompetence, or a lack of adequate knowledge, skill, judgment or care in the practice of architecture, (i) any other improper or unethical conduct of the architect in the course of the practice of architecture, (j) any conduct that is declared by the regulations to be unsatisfactory professional conduct for the purposes of this Act. 1. Div 2 of Part 4 provides for the making and investigation of complaints by the ARB. Section 43 provides the powers of the ARB in dealing with a complaint: 43 Decision after investigation of complaint (1) After the Board has completed an investigation into a complaint against an architect, the complaint is to be dealt with in accordance with this section. (2) The Board may apply to the Tribunal for a disciplinary finding against an architect under Division 3 if it is satisfied that the architect is guilty of unsatisfactory professional conduct or it may instead exercise the functions conferred on it by subsection (4). (3) However, the Board must apply to the Tribunal for a disciplinary finding against an architect under Division 3 if it is satisfied that the architect is guilty of professional misconduct. (4) If the Board is satisfied that the architect is guilty of unsatisfactory professional conduct (but not professional misconduct), the Board may take any one or more of the following actions— (a) caution or reprimand the architect, (b) order the withholding or refunding of part or all of the payment for the architectural services that are the subject of the complaint, (c) direct that such conditions relating to the architect's practice of architecture as it considers appropriate be imposed on the architect's registration, (d) order that the person complete any educational course or courses specified by the Board, (e) order that the person report on his or her architectural practice at specified times, in a specified manner and to specified persons, (f) order that the person seek and take advice, in relation to the management of his or her architectural practice, from a specified person or persons, (g) order the architect to pay a fine of an amount not exceeding 15 penalty units. (5) Action is not to be taken under subsection (4) unless the Board— (a) has caused notice of the proposed action to be given to the architect, and (b) has given the architect at least 28 days within which to make written submissions to the Board in relation to the proposed action, and (c) has taken any such submissions into consideration. (6) The Board is to dismiss the complaint against the architect if it is satisfied that the architect is not guilty of either unsatisfactory professional conduct or professional misconduct. (7) The Board may decline to deal with a complaint if the complainant fails to provide further particulars (including documents and other information) required by the Board. (8) The Board is to notify the architect of any action taken by the Board under this section. NSW Architects Code of Professional Conduct 1. Section 7 of the Architects Act provides: 7 Establishment of code of professional conduct (1) The regulations may establish a code of professional conduct setting out guidelines that should be observed by architects in their professional practice. … 1. Schedule 2 to the Architects Regulation 2017 provides the NSW Architects Code of Professional Conduct (Code of Conduct), in effect from 1 September 2017 (the 2017 Code). The previous version of the Code of Conduct was prescribed in Schedule 2 of the Architects Regulation 2012 (the 2012 Code). 2. A failure by an architect to comply with a provision of any code of professional conduct established by the regulations and in effect under s 7 of the Architects Act is "unsatisfactory professional conduct" as defined in para (b) of the definition in s 32 of that Act. Further, s 8 of the Architects Act provides that the provisions of a code of professional conduct are a relevant consideration in determining for the purposes of that Act what constitutes proper and ethical conduct by an architect. 3. An issue in the present proceedings is whether the 2012 Code or the 2017 Code applies in consideration of the conduct of the architects. The findings and determination of the ARB were based on the provisions of the 2017 Code. 4. The architects submit that there is no retrospective effect for the 2017 Code, and that accordingly the conduct of Mr McCrae is to be determined by reference to the 2012 Code up to and including 1 September 2017, and thereafter up to 8 December 2017 when Ms Manfredini took over the project; and that Ms Manfredini's conduct must only be assessed in accordance with the 2017 Code. 5. The ARB submits that the appropriate Code of Conduct is the 2012 Code for conduct occurring up until 1 September 2017 and the 2017 Code from that date onwards. The ARB submits that it may be that the change is largely immaterial given that it is arguable that the conduct does not crystalise until 1 September 2017 onwards, and that there is little practical difference between the two Codes. Discussion and findings 1. The 2012 Code is divided into 8 Parts, relevantly Part 2 General Practice Standards (cll 4, 5); Part 3 Standards concerning dealings with clients (cll 6-15); and Part 7 Standards concerning the public (cll 19, 20). The 2017 Code is similar, although Part 3 includes cll 6-14, and Part 6 Standards concerning public includes cll 17 and 18. 2. While the substantive provisions are similar in each of the 2012 Code and the 2017 Code, there is a difference in the language used. In the 2012 Code clauses 4: Provision of architectural standards generally; 6: provision of information to clients and prospective clients; 7: Client agreements; 14: Advising client of inability to follow client's instructions; and 19: Dealings with the public, are expressed in terms that an architect "should" ensure, or "should" provide. In contrast, in the 2017 Code, the equivalent provisions in clauses 4, 6, 7, 14, and 17 are stated in terms that an architect "must" ensure, or advise, or take reasonable steps to act in specified ways. 3. The terms of the Introductory Note to the Code of Conduct also changed: 1. The Introductory Note to the 2012 Code states: A failure to comply with the Code constitutes unsatisfactory professional conduct for the purposes of the Architects Act 2003 and may be grounds for disciplinary action under Part 4 of that Act. 1. The Introductory Note to the 2017 Code states: A failure to comply with the Code may constitute unsatisfactory professional conduct for the purposes of the Architects Act 2003 and may be grounds for disciplinary action under Part 4 of that Act. 1. It was common ground between the parties that the difference in language does not detract from the obligations and expectations created under the Code of Conduct. In Dascalu v NSW Architects Registration Board [2012] NSWADT 213 the former Administrative Decisions Tribunal held, having considered the definition of unsatisfactory professional conduct in para (b) of s 32, the fact that the 2012 Code was established by the regulations and in effect under s 7 of the Architects Act, and the Introductory Note: 13. This conclusion means that it is unnecessary to determine the meaning of 'should' in s 7 or in the Code of Conduct generally. The consequences of not complying with the Code are clear. The architect is guilty of unsatisfactory professional conduct. It is irrelevant whether the Code is expressed in absolute or relative terms. 1. The Tribunal considered, and rejected, the submissions put in support of the proposition that "should" should be read as meaning that the matter is discretionary, and concluded at [31] that unless architects comply with the provisions of the Code they are at risk of a finding of unsatisfactory professional conduct, a conclusion consistent with the view of the Tribunal expressed in Hirst v New South Wales Architects Registration Board [2008] NSWADT 12 at [31]. 2. Clause 13 of the Architects Regulation 2017 provides: Any act, matter or thing that, immediately before the repeal of the Architects Regulation 2012, had effect under that Regulation continues to have effect under this Regulation. 1. The ARB submits that pursuant to that provision, the operation of the 2012 Code is preserved in relation to conduct which occurred before 1 September 2017. 2. The Tribunal is satisfied that the agreed position of the parties is correct, and the conduct of the architects is to be considered by reference to the provisions of the 2012 Code until 1 September 2017, and thereafter by reference to the provisions of the 2017 Code. The Tribunal is also satisfied, having regard to the reasoning in Dascalu v NSW Architects Registration Board, that whether the relevant term used is "should" or "must", failure to comply with any of the relevant provisions of either the 2012 Code or the 2017 Code would, in accordance with the definition in para (b) of s 32 of the Architects Act, constitute unsatisfactory professional conduct. To the extent that the addition of the word "may" in the Introductory Note in 2017 might suggest otherwise, that is not supported by the words used in s 32(b). Evidence 1. The documentation filed by the ARB pursuant to s 58 of the ADR Act is extensive. The four volumes include documents provided by the complainants to the ARB in support of their complaint, the architects' responses to the complaints including supporting documents, the complainants' responses, and the architects' final responses. Volume 4 of those documents provides the Determination of the complaint, including a summary of the documents and submissions provided by the architects and the complainants, and the ARB decision. 2. The parties filed a joint tender bundle of three volumes on 22 July 2020 (ex A4, referred to in these reasons as "TB"). That material includes contract documents, invoices, plans and drawings, and 538 pages of email communications between the architects and complainants during the course of the project. 3. The parties provided a Statement of Agreed Facts, and a Statement of Disputed/Irrelevant Facts, on 29 July 2020. 4. The architects relied on the following evidence: 1. Affidavit of Ms Manfredini affirmed 27 September 2019 (ex A1); 2. Affidavit of Ms Manfredini affirmed 29 July 2020 (ex A2); 3. Affidavit of Mr McCrae affirmed 26 September 2019 (ex A3); 4. Additional documents including Minutes of meeting 14 March 2018, notes on proposal to resolve dispute, and Adjudicator's Determination under the SOPA 28 September 2018 (ex A5). 1. The ARB relied on the following evidence: 1. Affidavit of Dr Orr affirmed 29 July 2020 (ex R1); 2. Affidavit of Mr Decker affirmed 31 July 2020 (ex R2). 1. Ms Manfredini, Mr McCrae, and Mr Decker gave oral evidence. 2. The parties provided written submissions for the first day of hearing, and closing submissions after the conclusion of the hearing. Issues 1. The matters alleged by the complainants in their complaint to the ARB are summarised at [2] above. The findings of the ARB are summarised at [3] above. 2. The ARB submits that the three significant things which happened throughout the project were that: 1. The costs involved in the project escalated from the initial agreed budget of $700,000 to approximately $1, 500,000; 2. There was significant slippage in the timetable resulting in the late submission of the DA and the commencement of construction; and 3. From approximately July to August 2017 there appeared to be a breakdown in communication which escalated throughout the second half of 2017 until coming to a head in January 2018. 1. The Tribunal considers that the factual issues to be determined in conducting this review of the ARB determination are: 1. The time frame for the project: 1. Whether the architects failed to meet an agreed time frame for commencement of construction; 2. Whether the architects were responsible for any delays in meeting the agreed time frame; 1. The costing of the project: 1. Whether the architects informed the complainants of updated costing advice; 2. Whether the architects failed to inform the complainants of the decisions required with respect to engaging a QS, and the costs incurred; 3. Whether the architects invoiced the complainants for unauthorised amounts; 1. Management of consultants: 1. Whether the architects appropriately managed services provided by specialist consultants including the QS; 1. Communication between the architects and the complainants: 1. Whether the architects provided appropriate information and advice concerning any delays or issues in meeting an agreed time frame; 2. Whether the architects failed to implement the agreed brief, specifically the provision of airconditioning services, in their designs; 3. Whether the architects provided sufficient information to enable the complainants to make decisions about the provision of architectural services; 4. Whether the agreement for provision of weekly meeting records created an obligation on the architects which was not fulfilled. 1. Dealings with public: 1. Whether the architects failed to provide registration numbers and identify the nominated responsible architects on documents including tax invoices, letterhead, plans and website publications. 1. Depending on the findings on those factual issues, the following further issues arise: 1. Whether the conduct as found constitutes a failure to comply with any of the provisions of the Code of Conduct; and 2. Whether the conduct is to be attributed to either, and if so which, or to both of the architects. 1. Depending on the findings on those issues, the further issues to be addressed are: 1. Whether the conduct of either or both architects constituted "unsatisfactory professional conduct" as defined in s 32 of the Architects Act; 2. If so, what if any action under s 43(4) of the Architects Act is appropriate; 3. If that action includes payment of a fine under s 43(4)(g) of the Architects Act, how is that fine to be calculated; and 4. Whether any action should include an order under s 43(4)(b) of the Architects Act to refund any part of the payment made by the complainants for architectural services. Time frame for the project Agreed timeframe 1. The ARB submits that the complainants engaged the architects on the basis that construction would begin in approximately January 2018 in order that they be able to occupy the property a year later when their son started school, and that there was an agreed timetable for the renovation that would see the complainants returning to their renovated home in January 2019. The ARB relies on the affidavit evidence of Mr Decker that Mr McCrae's advice had been that the time from the concept design to finalisation of construction would be roughly two years, and email communication between them including on 29 August 2015 that the complainants wanted to be back in by the time their son started school, and on 21 July 2017 in which Mr McCrae stated a proposed timetable for the project moving forward. The ARB relies on email exchanges in August to October 2017, including an email of 19 October 2017 in which the complainants asked for an explanation as to why the process was taking so long and when they would be going out to tender, and whether they were still on track to start building work in January, and an email from Mr McCrae on 20 October 2017 that he was not wavering from a projected January start of works and that he had always understood that the main house needed to be habitable no later than January 2019. 2. The architects submit that other than the evidence of Mr Decker, there is no evidence to show there was an agreement that construction would commence as asserted by the complainants, and that Mr Decker conceded as much in cross examination, conceding that there was nothing set in stone. The architects submit that having regard to the number of variations requested, it is implausible that if there were an agreement with respect to completion that the complainants could have expected that the project could still have been completed in such circumstances. As at December 2017 variations and client selections were still being considered. The only clear evidence relating to any omissions on the part of the architects which could be said to constitute a delay, which is not conceded, is the omission of the airconditioning from the plans. Discussion and findings 1. The ARB relied on emails between Mr Decker and Mr McCrae in the period 29 August 2015 to 24 August 2017 which it contends evidence that a timeline had been proposed, discussed and negotiated between the complainants and the architects. In an email dated 29 August 2015 Mr Decker stated "we want to be back in and settled by the time [child] is ready to start school in 2019". On 21 July 2017 Mr McCrae provided his "current thoughts on programme", which included tendering mid-September to mid-November 2017, a builder being engaged prior to Christmas and construction commencing mid to late January 2018. On 15 August 2017 Mr Decker requested an indication of invoice amounts based on that timetable. On 24 August 2017 Mr Decker emailed Mr McCrae stating that "Based on the estimated 12-14m schedule you outlined, we require work to start in January 2018." 2. In his affidavit Mr Decker stated that in the initial discussions about the renovation plans Mr McCrae told him that the time from concept design to finalisation of construction would be roughly two years. He referred to his email of 29 August 2015, before entering the concept design agreement, in which he stated that "we want to be back in and settled by the time [child] is ready to start school in 2019". He referred to many conversations with Mr McCrae, advising that they wanted to be back in their renovated home by January 2019. Mr Decker referred to the email of 21 July 2017, in which Mr McCrae provided "current thoughts on programme", and at para [11], referring to that email, stated that "We understood that although estimated, the timetable David set out was the agreed timetable we were working to". 3. In oral evidence Mr Decker maintained that there was a clearly agreed timetable for the project encapsulated in that email, which he interpreted as Mr McCrae's thoughts as to how to meet January 2019 when their son would start school. He disagreed with the proposition that it was aspirational, stating that it was the basis on which they engaged Mr McCrae. Mr Decker stated that he could not point to anything set in stone, but relied on the CAA which said the timetable was agreed, and that was January 2019. At the time of the 21 July 2017 email they were significantly away from meeting the timetable and they had asked Mr McCrae for his thoughts on how they could meet the timetable. Mr Decker agreed that he could not point to a timetable in the contractual documents. 4. In his affidavit Mr McCrae referred to his belief as at December 2017 that the construction could be completed so that the complainants would be back in their home by the end of December 2018 "as per the original aim". In oral evidence Mr McCrae stated that the timing outlined in the email of 21 July 2017 was based on progress to date and his expertise in the field, and his understanding that the aim was for January 2019 before the school year. Questioned on the email of 24 August 2017 in which Mr Decker stated that they required work to start in January 2018, and whether he thought the timetable could be achieved, Mr McCrae stated "not really"; he did not give any advice as to whether the timetable was achievable because he thought the project was still moving on. His response in the email communication was that they were still working to have building tenders out in September. 5. In her affidavit of 26 September 2019 Ms Manfredini stated at [56], in response to Mr Decker's email of 23 January 2018 that the architects had not met their deadline of construction commencement in January 2018, that from her perspective had the complainants engaged the relevant contractors and provided them with their drawings as well as final decision on outstanding matters, the tender could have gone out and work could have commenced in March 2018. That would still have allowed the complainants to move in at the end of December within the proposed timeline. In oral evidence Ms Manfredini acknowledged that that was the aim, and thought they could get the complainants in by February 2019. The notes of the meeting on 14 December 2017 include remaining work for the complainants to do, and that they were no longer aiming for December 2018 completion. 6. The CAA required the complainants to inform the architects of their initial program for the project, and required that they and the architects agree on an initial program for the architects' services. The Tribunal finds, based on the email correspondence referred to above, that there was an expectation on the part of the complainants that the project would proceed so that the complainants could move back into their house before the beginning of the school year in 2019. The clients' expectation was not formalised in the CAA, or confirmed in writing otherwise, other than in the email communications referred to above. 7. The Tribunal finds that that expectation was understood and acknowledged by the architects, and confirmed as late as July 2017. In his email of 21 July 2017 Mr McCrae stated his "current thoughts on programme" in the following terms: Complete Contract Documentation by mid-September Tender mid-September to mid-November Decision on Tenderer beginning of December Builder signed prior to Christmas Construction commence mid to late January 15 months for construction – create specific construction clauses with pool/carport/fencing works programmed around ensuring main house can achieve Interim Occupation Certificate for you to return and live 1. While that program reflected the complainants' expectation, and is an indication that Mr McCrae thought at that time that it was achievable, it was qualified by the note "Please note these are estimated timings at this stage only". 2. The CAA provided that the agreed initial program could be revised during the project, by mutual agreement in writing. The Tribunal is satisfied that while the timing of January 2019 for the complainants to move back into their home was an expectation, and was not, as Mr Decker conceded, set in stone, no alternative timing or program was suggested by the architects, even though by August 2017, on his oral evidence, Mr McCrae had concerns that the timing may not be met. 3. The Tribunal concludes that while there was no formal documentation, there was an expectation of a time frame for completion of the renovation that would enable the complainants to move back into their home in early 2019. If there were concerns that the number of variations to the design and plans was interfering with meeting that expectation, it was incumbent on the architects to alert the complainants to that. Responsibility for delays 1. The ARB acknowledged in its Determination that the complainants contributed to the delays by requesting changes, the need for redesigns and on occasion failing to provide prompt instructions, however determined that the failure to meet the agreed timeframe was to a significant extent due to the architects' failure to provide the services with reasonable promptness. The ARB submits that the evidence before the Tribunal supports a similar finding. The ARB relies on the evidence of Mr Decker that changes were made to the plans for three reasons, being changes requested by the complainants, changes by the architect, and changes to correct errors. His recollection was that the majority of the changes were as a result of errors in the construction drawings, not limited to the omission of airconditioning and the changes needed for the incorporation of the airconditioning. The ARB submits that while as late as December 2017 the complainants were still requesting variations and had various tasks to complete, prior to this they had been repeatedly requesting information and updates as to what was required of them 2. The architects rely on the number of variations requested, and the Minutes of the meeting of 14 December 2017 provided by Ms Manfredini showing the tasks remaining to be completed by the complainants that were relevant to the issuing of tender documentation, or were further amendments sought by them. As at that date there were no fewer than 10 tasks remaining to be completed by the complainants that were either directly relevant to the issuing of tender documentation or further amendments sought by them. Further, Mr Decker's email of 23 January 2018 (TB 806) identified as errors causing the multiple iterations of the construction drawings the omission of the airconditioning, retention of the moulded ceilings, inclusion of screen doors in front of the equipment room in the basement, a light switch in the garage. The architects submit that those examples provided by Mr Decker fall short of explaining the number of variations, being 122 variations at Design Development Stage, 55 at Development Application Stage, and 101 at Contract Documentation Stage. As late as December 2017 the complainants were still seeking variations and had various tasks to complete. Discussion and findings 1. In several emails during 2017 the complainants raised their concern at progress with the project, including: a request on 15 March 2017 for an update on the plans going to Council; a statement on 24 August 2017 that they did not "want the schedule to slip any further"; a query on 28 August 2017 about whether it was realistic to tender this late in the year and expect a building to start in January, and a reference to "moving timeframes"; and a query on 19 October 2017 about when the project would go out to tender and whether they were still on track to start building work in January. 2. In his affidavit Mr McCrae rejected (at [177]) any suggestion that timeframes were not met as a result of his actions alone as completely inaccurate, and stated that any delay was due to the seemingly endless amendments, emails, telephone calls and requests for more updates by the clients. Mr McCrae relied on the Schedule of Variations at pp 14-20 of the annexures to his affidavit (the Schedule of Variations) documenting the volume of revisions and amendments to the plans and drawings. 3. In his affidavit Mr McCrae provided detail of his involvement in the stages of the project, from the initial discussions (at [9]-[11]), the Concept Design stage between 29 August 2015 to 16 December 2015 (at [12]-[39]), the Design Development stage from 18 January 2016 to 28 July 2016 (at [40]-[93]), the Development Application stage between 1 August 2016 to 9 July 2017 (at [94]-[139]), and the Construction Documentation stage between 10 July 2017 to December 2017 (at [95]- [140]). 4. In summary, Mr McCrae recorded that between February and May 2016 he prepared preliminary drawings in respect of various aspects of design including bathrooms, kitchen, joinery, basement, study windows and lounge. There were revisions and additions requested after the initial brief was conceived including the addition of new front fencing and formal entry, redoing the front entry stairs, the basement area was more complex and larger, addition of the swimming pool and decking and pathways and more extensive landscaping, increasing the amount of joinery and internal works, a larger bathroom on the first floor and family room, addition of fireplaces, replacement of more external walls and larger main bedroom. Following a meeting with the complainants on 9 June 2016 he made amendments to the drawings including with respect to the roof (change to flat roof), first floor (deck moved, size increased, size of family are reduced, window changes to various elevations), and the ground floor (internal stairs and landing removed, family room reduced, joinery changes to laundry). He amended the drawings on 20 June 2016, revisions including the ground floor (external fireplace added), first floor (rear deck reverted to original location, ensuite changes and second option for ensuite added, layout of family/study area changed). On 27 June 2016 he emailed further amended drawings following a meeting with the complainants on 26 June 2016. 5. Between 20 June to 2 July 2016 there were a significant number of variations made to the drawings following requests from the complainants: for example removal of basement walls, larger bathrooms and multiple designs, enlarged first floor balcony, amendments to pool design and landscaping, revised first floor roof design, window and sliding door changes. On 11 July 2016 he received an email from Ms Pritchitt requesting further amendments to the design drawings. Between 13 and 16 July 2016 there were a number of emails exchanged in relation to design queries, and he made further modifications to the drawings on 15 July 2016. 6. Mr McCrae sent the updated drawings to the complainants on 16 July 2016, and on 25 July 2016 requested advice as to whether the works could be considered to be at 100% design development stage, to move on to the development application stage. The complainants responded stating that they "may want to tinker with some minor aspects of the design". 7. Mr McCrae stated that between October 2016 and February 2017 the project continued to be developed. Design work included discussion on site on 5 November 2016; a meeting on 11 November 2016 to discuss revisions including amendment to the first and ground floor; a meeting on 3 December 2016 at which revisions to the roof, entrance and external finishes were discussed; and a meeting on 11 December 2016 where discussions included changes to the basement level, including wine storage and bike storage. Updated versions of the drawings were emailed to the complainants on 14 December 2016, and 3 February 2017. The development application was submitted on 22 March 2017. 8. Mr McCrae stated that the drawings were updated to include further revisions requested by the complainants during April and May 2017. Amendments were required to meet the planning requirements relating to maximum floor space ratio. On 5 June 2017 the complainants asked whether it would be possible to include a toilet downstairs. 9. After approval of the development application on 6 June 2017, there was further discussion about the kitchen and bathrooms. Amendments were made to the drawings in July 2017. On 15 August 2017 the complainants informed Mr McCrae that they wished to engage a professional designer and decorator to assist in selecting fixtures and finishes. Mr McCrae stated that the architects had been in the process of providing selections for the complainants and had designed interiors accordingly, and that due to the interior designer being brought on board late in the documentation process, further amendments were made to drawings that had been agreed such as tiling layouts, fixtures and positions and joinery. 10. On 27 August 2017 Ms Pritchitt emailed requesting an email setting out the contents of a discussion at a meeting on 26 August 2017. That email detailed decisions made by the complainants, including on the kitchen benchtop, and requested options for window design for the upstairs living space and the detailed design for the lower ground floor, and provided a list of remediation work they wanted done. Mr McCrae responded on 28 August 2017 and Mr Decker emailed back later on 28 August 2017 in relation to refrigerator choices, insulation and air conditioning, tiling, windows, kitchen benchtop and timing. In that email Mr Decker stated that the complainants were "getting increasingly concerned about the moving timeframes and the lack of communication about what exactly is happening at each stage in the process, how our input is being processed, what your expectation of our involvement is, and what we should expect next". Mr McCrae emailed the complainants on 29 August 2017, providing a summary of key dates including tender on 29 September 2017, tender close on 27 November, tender review and then "sign last few days before Christmas". 11. In his affidavit Mr McCrae recorded further amendments to the drawings and further meetings during August and September, noting that on 18 September 2017 he had finalised various drawings including in relation to construction sections, pool and basement structure. 12. In oral evidence Mr Decker agreed that there were more than the two versions of the design allowed for in the CAA in the design development stage. He agreed that there were a significant number of changes to the original concept design. They sought changes after the development consent including changes to the windows in the dining room, and to correct errors in the construction drawings. Mr Decker agreed that there were changes to the roof, basement level, and joinery, stating that the latter was because it was inconsistent with their instructions. He maintained that the construction drawings were consistently wrong; he could not answer when asked to point to any email concerning errors in the construction drawings. He agreed that the number of variations would have the potential to impact on completion of the drawings. Mr Decker maintained that amendments were primarily to correct errors they had uncovered; he did not agree that the major proportion were for changes requested by the complainants. When pressed to identify errors, Mr Decker referred to the airconditioning, the omission of light switches, and placement of a wall oven, and an issue with wooden shingles. Mr Decker disputed the accuracy of the Schedule of Variations, stating that he had not been provided with it contemporaneously, and that Mr McCrae had not taken written notes of their meetings and did not provide weekly reports. 13. The Tribunal notes that it is not in dispute that by December 2017 the project was not at the point where the tender documents were ready. The Tribunal notes that at that point, given the time of year, it is unlikely that tenders could be provided and reviewed before February 2018, which would have delayed the signing of a builder and the commencement of construction. Had a builder been signed by November or December, it is likely that some work could have started on the site once the clients had moved out. 14. The Minutes of the meeting on 14 December 2017, sent to the complainants by Ms Manfredini on 15 December 2017 (TB 791) confirm that the documents required from the complainants for tender included the documentation relating to landscaping, the pool and interior design. The complainants still needed to confirm whether they wanted to go ahead with supplying the items listed on the Schedule of FFE (being Furniture, Fixtures and Equipment, items not usually part of the contract between the builder and the owner), or include those items in the builder's contract, and to confirm whether the balustrade for the front steps was to be timber or glass, and confirm the paving and sandstone cladding. Mr Decker responded, providing estimates for the landscaping by two contractors and a quote for the pool, and a breakdown of work to be included in the builder, landscaper or pool scope. On 18 December 2017 Ms Pritchitt provided schedules worked on with the interior designer, confirmed items that would be purchased through her, and stated that she would confirm others as soon as she could. 15. In her affidavit Ms Manfredini stated (at [56]) that had the complainants engaged the relevant contractors and provided the architects with their drawings as well as final decisions on outstanding matters, the tender could still have gone out and work could have commenced in March 2018, which would have allowed them to move in at the end of December within the proposed timeline. 16. In determining where responsibility lies for the delay, the Tribunal has had regard both to the evidence of the parties, and to the email communications between them. The email communication confirms that: 1. The complainants raised concerns as to inaccuracies or errors on plans provided by Mr McCrae, for example and issues with location of the clothesline on 26 May 2017 (TB 581); an email on 14 September 2017 (TB 677) referring to "repeated inaccuracies", identifying the location of the clothesline outside the pantry and removal of the doors from the garage to the first storage room; and an email on 12 November 2017 concerning veneer in the bathrooms (TB 766). On 8 November 2017 the complainants asked Mr McCrae to check the height of the wall oven (TB 756). The complainants' concerns were summarised in an email to Ms Manfredini on 23 January 2018 (TB 806-9), and included failure to include screen doors in front of the equipment room in the basement, provide a light switch in the garage, tap design and oven height, space for a fridge in the butler's pantry, and noise insulation between the master bedroom and the ensuite toilet; 2. Amendments to the plans were required to comply with the floor space ratio requirements of the planning controls, as evidenced in an email of 23 May 2017 listing changes required (TB 578, 600); 3. Amendments were requested by the complainants on their review of the plans, for example in an email of 8 July 2017 (TB 596) concerning the kitchen, in which issues were identified as needing to be resolved; and on issues raised by the advice of the interior designer engaged by the complainants, for example light fittings and towel rails in October 2017 (TB 718). As late as 30 October 2017 the complainants were requesting amendments to the plans, most on matters of detail such as appliances, and including a query about whether having the wardrobe on the southern wall in the front room would present any issues including for aircon (TB 738); 4. There were delays by the complainants in responding to queries or confirming agreement (TB 531, 674, 676); 5. Changes to the plans were required in October 2017 to deal with issues raised by the complainants' pool contractors, in managing provision for heating and the size and location of the equipment room (TB 631, 716, 744); and 6. There were misunderstandings in the email communications, for example the complainants' request in November 2017 for veneer "behind the towel rail" in the bathroom, which was later clarified to mean only that behind the hand towels and "not on the wall behind the towel rail" (TB 756, 765). 1. The Schedule of Variations is consistent with the evidence in the emails as to the number of variations and amendments to the plans that were made both before DA submission, and afterwards in the course of developing the construction documentation. That is confirmed on a comparison between the DA plans (TB 897-933) and the construction documentation plans as at 5 December 2017 (TB 974-1076). While Mr Decker was not prepared in oral evidence to accept its accuracy, the Tribunal is satisfied that the Schedule of Variations reflects the progress of the work, as apparent from the email communications and as represented in the plans as they had reached at the time the architects stopped further work. Having reviewed the extensive email communication, the Tribunal concludes that some of those variations and amendments were required to address matters in response to the complainants' corrections or requests for clarification; some related to factors outside the control of either complainants or architects, such as the planning issues and the provision of heating for the swimming pool, which was being separately designed and contracted; and some were required because the complainants wanted changes to the design. 2. The Tribunal does not agree that the architects were wholly or substantially responsible for the number or kind of variations or amendments to the plans, and the consequent delays in meeting the expected time frames. While maintaining in oral evidence that changes were required because the construction drawings were consistently wrong, Mr Decker was unable to identify errors other than the airconditioning, the omission of light switches, and placement of a wall oven, and an issue with wooden shingles. Those matters do not account for the extent of the email requests for additions or further detail on the plans. 3. However, the email communications indicate that throughout the course of the project both the architects and the complainants were engaged in a continuing process of changes, alterations, corrections and amendments, without regard to the need for finality for tender. The CAA states that the obligations of the client include to "cooperate fully with the architect to provide efficient and satisfactory progress through all stages of the project"; and the obligations of the architect include to "provide the services described in this agreement with the skill and professionalism of a reasonably competent architect". While not wholly responsible for delays, as the professional, acting consistently with the obligations as stated in the CAA, the architects had the primary obligation of advising the complainants clearly what needed to be finalised so the construction documents could be settled. The question of whether the architects appropriately communicated that to the complainants is considered below. Costing of the project 1. The ARB accepts that the agreed initial budget of $700,000 recorded in the CAA signed on 28 January 2016 was proposed by the complainants and accepted by the architects. The ARB submits that the costs involved in the project escalated from that initial agreed budget of $700,000 to approximately $1,500,00, and that the architects unilaterally established the increased costs of works of $1,500,000 without the agreement of the complainants. The ARB submits that the evidence supports a finding that the architects did not clearly advise the complainants that the ultimate cost of works would materially exceed the ECW agreed by them, and did not provide a clear explanation of their concerns as to cost increases until December 2017, and that as the professional it was incumbent on the architect to make sure a proper estimate of costs was obtained. 2. The ARB submits that the dispute centres on the following issues: 1. A misunderstanding that arose as a result of the complainants' understanding that the QS had prepared an updated cost report as part of his work in reviewing the plans associated with the DA, based on which they had understood that an updated Cost of Works had been done in March 2017 and that this was largely consistent with the Cost Report prepared in May 2016; 2. Whether or not the complainants were in fact advised and asked to engage BDA to prepare an updated Cost Report as part of the DA; 3. Whether or not the complainants refused to engage a QS to prepare an updated report following the DA and prior to tender; and 4. Whether or not Mr McCrae failed to obtain quotes for a QS to prepare an updated report. 1. The ARB submits that a factor contributing to the misunderstanding regarding the updated Cost of Works was that the complainants were not provided with the BDA quote. Mr Decker was firm in his evidence that he did not see the quote of 3 February 2016 until it was produced as part of the SOPA process in 2018; whereas Mr McCrae's evidence that he provided it to the complainants was vague and not supported by the documentary evidence. The ARB submits that rather than the complainants later refusing to pay BDA to prepare a cost report, the issue was simply not raised with them by the architects. 2. The architects submit that even if Mr McCrae did not provide the complainants with a copy of the BDA quote, the evidence demonstrates that Mr McCrae had impressed on Mr Decker the need to get an up to date QS report. To the extent that there was any confusion, it was with respect to Mr Decker's erroneous assumption as to the function of the QS report. At the meeting of 4 March 2017, before the DA was lodged, Mr McCrae had made clear what the purpose of the QS report was, and that was accepted by Mr Decker, who in oral evidence accepted that he had been told that where a project exceeded $1m he needed a QS cost report for the development application. 3. The architects rely on the statement made by Mr Decker in his email to Mr McCrae on 19 August 2017 that he could not see much value in spending $2000 on an estimate when the market via the Building Tender would tell them the answer. A similar statement was made by him in his email to Ms Manfredini on 28 December 2017. The architects submit that there was no basis for any belief that the Cost Report was intended to be a revised cost estimate, the purpose having been made clear to Mr Decker in his meeting with Mr McCrae on 4 March 2017 as being a requirement for a DA for a project valued at over $1m. The architects submit that the dispute relating to the increase in costs arose only when Ms Manfredini rendered Invoice 12, and that the correct position was that Mr Decker refused to obtain a revised cost estimate because he was aware having read the CAA that if he did he would have to pay additional fees. 4. The architects submit that the QS report was simply a requirement of Council for the DA, and that if the complainants assumed it constituted a revised cost estimate relevant to the works, there is no evidence that they raised it at the relevant time. Updated costing advice 1. The Agreed Statement of Facts reflects the parties' agreement that: 1. The original ECW provided in the CAA in January 2016 was $700,000; 2. On 19 May 2016 BDA provided a Preliminary Budget Estimate of $1,159,657 incl of GST and anticipated Builder's Margin; 3. Mr Decker by email on 6 June 2016 confirmed "a revised ECW of $1,000,000"; 4. The Cost Report provided by BDA on 12 March 2017 as submitted to Council with the DA noted the total construction costs as $1,054,234 (total development cost $1,275,623); 5. The complainants received a copy of the final documents submitted to Council for the DA, including the Cost Report, on 30 May 2017; 6. On 21 July 2017 Mr McCrae advised the complainants that construction costs had increased and advised that it was vital that the complainants obtain a revised costing, "to allow you to see where you might reduce/equal/increase items to suit your budget"; 7. On 17 August 2017 Mr McCrae advised the complainants that he recommended that the project was repriced to take into account all that had been added and adjusted and increased construction costs, and recommended another pricing prior to tendering; 8. The agenda for discussion on 21 August 2017 sent by Mr Decker included "Whether we need a QS update and how/if that affects our arrangements with you?"; 9. On 28 September 2017 the complainants emailed stating they had reviewed the QS estimate from March 2017 at $1.054m, acknowledged the advice to have the updated design re-estimated, and asked for advice as to which specific parts of the design caused concern regarding the estimate; and Mr McCrae replied stating that general construction costs had risen since the actual costing was done in May 2016, the pool was more elaborate, additional joinery had been added, and the structure was more elaborate; 10. on 27 December 2017 Ms Manfredini provided the complainants with a Revised Budget Estimate of $1,755,409, stating in an email that that was based on the preliminary Budget Estimate of May 2016 with updated items, identifying all areas she considered had been made more expensive or larger, and that it was likely tenders would come in higher, and recommending a QS prepare a Cost Estimate Pre-tender; 11. Mr Decker responded on 28 December 2017 stating that he considered there may have been some miscommunication or misunderstanding, referring to the email trail of 28 September 2017, that Mr McCrae had said he would get a couple of quotes for the QS work, and that that item had been dropped from the ongoing email traffic and not discussed again with Mr McCrae; and 12. On 5 January 2018 Ms Manfredini advised that the Pre-Tender Estimate of 27 December 2017 would be a low estimate, and proposed for the purposes of fees to set the Cost of Works on the Pre-tender Estimate rounded down to $1,500,000. Discussion and findings 1. The original ECW as stated in the CAA in January 2016 was an underestimate of the likely costs of the project as it developed. Whether or not it was unrealistic at the time it was agreed in January 2016, by May 2016 the estimated cost, as provided in the Preliminary Budget Estimate by BDA, had increased by some 65%, to $1,159,657. Even though that estimate was provided by the qualified QS, on plans that Mr McCrae thought in February 2016 would have reached a sufficiently realistic stage for costing (TB 417), Mr Decker confirmed on 6 June 2016 that he agreed to a revised ECW of $1,000,000. That was the figure on which Invoice 2 was issued on 31 May 2016 for 65% completion of the design development stage (later revised down to 50% completion) (Annexure A, affidavit of Mr Decker 31 July 2020). It is not clear on the evidence on what basis that figure, rather than that provided in the QS estimate, was agreed. The March 2017 Cost Report provided for the DA recorded total construction costs as $1,275,623, which included consultants' fees. 2. On the evidence before the Tribunal there was no further agreement on a revised ECW after June 2016. Mr McCrae recommended obtaining a new costing in July and August 2017, and explained in his emails of 21 July and 17 August 2017 why he thought an updated costing was required. On 29 December 2017 Mr Decker requested Ms Manfredini to obtain a QS costing. 3. From June 2016 to December 2017, when Ms Manfredini provided the Pre-Tender Estimate, the complainants were working on a revised ECW of $1,000,000, less than the amount calculated by the QS in May 2016. By March 2017 the only evidence as to likely costing was the Cost Report provided for the DA. Mr Decker in oral evidence confirmed that he understood that they needed a Cost Report certified by a QS for the DA, and agreed that he was shown it at the meeting to finalise the documents for the DA. He agreed that he understood that its purpose was not to provide a revised budget estimate. 4. The Cost Report of March 2017 provided the same net construction cost ($1,054,234) as that in the detailed Preliminary Budget Estimate of May 2016. There had been changes to design and added detail up to the point of submission of the DA, as summarised at [96]-[99] above. However, there is no indication that the complainants raised any query as to why the figure had not changed to reflect that. 5. Whether or not it was reasonable for the complainants to treat the Cost Report as anything other than a document required for the purposes of the Council assessment of the DA, at the least it confirmed that the likely cost was higher than the amended ECW to which Mr Decker had agreed in June 2016. After development consent was granted, the architects were continuing to work on the design and detail required for the construction drawings, and advised the complainants in July and August 2017 that they needed to obtain an updated costing. There were discussions (discussed further below) about obtaining a revised QS costing, however the underlying need for an updated costing was not pressed by Mr McCrae. Nor did the complainants take up his recommendations in the emails of 21 July 2017 and 17 August 2017. 6. The CAA provides that estimates of the cost of works as revised during the project "are not a guarantee of the actual cost", and that "[t]he architect is not responsible for monitoring or controlling the total project cost for the client". Mr Decker was aware that the fees payable to the architects were based on the ECW, as confirmed in his email of 19 August 2017 in which he stated that "we expect that the total cost of the project will be above the ECW on which you are basing your invoices and is above the $700k in your engagement". In that email Mr Decker stated that he did not know what costs would be allocated to the builder's contract or how it would relate to the ECW, and expressed reluctance to pay for a QS, asking "does this impact our arrangements with you?" While the fees paid to the architects were based on the ECW, the CAA provided for those fees to be adjusted up or down retrospectively after the final cost of works was determined. If the complainants paid the architects' fees based on the $1,500,000 proposed by Ms Manfredini in December 2017, or on some other cost estimate, and that was an overpayment, that could have been recovered at a later date. 7. By mid 2017, some months after submission of the DA with the Cost Report of March 2017, the architects were advising the complainants that they needed to get an updated cost estimate. The Tribunal regards that as a reasonable position for the architects to take, having regard to the development of the plans both before and after the DA submission, and Mr McCrae's understanding as expressed to the complainants that construction costs had increased generally. The Tribunal concludes that the architects informed the complainants of the need for an updated costing and why: however that was not pressed by the architects after August 2017, until in December 2017 when Ms Manfredini took on management of the project. The question of whether the architects adequately communicated to the complainants the need for further information from a suitably qualified person other than themselves concerning costs so that they could make appropriate decisions, is considered below. Engaging the QS 1. The Tribunal is of the view that the engagement and management of the QS by the architects contributed to the reluctance of the complainants to accept advice about costs of the project. The central issue concerned management of the cost report required for the DA to be lodged: and that requires consideration of the way in which the BDA quote was obtained early in the project and communicated to the complainants, and whether a misunderstanding arose between the architects and the complainants as to the Cost Report provided by BDA on 11 March 2017. 2. The BDA quote dated 3 February 2016 (ex A3, DM 1, p13) includes the following services and fees: 1.Preliminary budget estimate at concept design stage: $825 2.Updating estimate during design development: $500 3.Measured elemental estimate at DA or CDC stage: $1750 4.Pre-tender estimate based on 95% final documentation: $1750 5.Final revisions prior to construction: $500 1. That document is signed "Services accepted…" by Mr McCrae "for Claudia Pritchitt + Mark Decker", and dated 21 April 2016. The quote included "measured elemental estimate at DA or CDC stage", however there was no separate quotation for provision of a DA Cost Report for Council. 2. The complainants took issue with the fact that the BDA quote was signed by Mr McCrae, and not by them. It is apparent that Mr McCrae had signed at least one other agreement on behalf of the complainants without objection, for example for the structural engineer NBC Consulting in November 2015 (TB 392-2, 400; Annexure p8, Mr McCrae affidavit 26 September 2019). 3. There is no confirmation in the email communications that Mr McCrae provided a copy of the BDA quote to the complainants. Mr McCrae's evidence was that he provided a copy of the quote by hand to the complainants, however he could not state when that occurred; and the complainants denied having seen it until it was provided during the SOPA process in 2018. 4. The CAA referred to specialist consultants being "engaged" by the client. The process for engaging consultants for the project was, on Mr Decker's affidavit evidence (at [33]), that Mr McCrae would advise what was required and why, and obtain quotes which the complainants would review and clarify and then engage the consultant. That the complainants reviewed quotes, and sought clarification, is confirmed in the emails in evidence. 5. The Tribunal cannot conclude with any certainty whether the complainants were provided with a copy of the BDA quote. Even if the quote was not provided to the complainants, that information could have been provided by Mr McCrae directly to the complainants. Had they been provided with the quote it may have made a difference to the complainants' understanding of the process, by alerting them to the fact that QS costing work would likely be required at various stages in the project, to update the estimate during the design process, provide an estimate at DA stage, and provide a further estimate at pre-tender stage; and to advise them of the cost of doing that work at each stage. Having regard to the approach adopted by the complainants as to engagement of consultants, and to checking and confirming consultant invoices throughout the project as evident in the email communications, it may have made a difference to their subsequent reluctance to obtain an updated QS costing. 6. It is not in dispute that the complainants paid $825 for the preliminary budget estimate by BDA at the Concept Design stage. Mr McCrae forwarded an invoice for that work to the complainants on 3 August 2016, and on 10 August 2016 Mr Decker confirmed payment. If the complainants had not seen the quote at that time, there must have been an explanation by Mr McCrae sufficient to persuade them that the work was required and that it had been done, contrary to their evidence as to their usual practice. Having regard to the complainants' requirement throughout the project that they have confirmation of what they were being invoiced for before payment, the Tribunal concludes that even if they did not see the BDA quote of 3 February 2016, the complainants were advised of and agreed to at least that first stage of the QS work. 7. It is clear that after payment of that invoice there was discussion of obtaining a further cost estimate: on 5 September 2016, following a meeting, Mr McCrae emailed the complainants stating that he would "also confirm if the Quantity Surveyor is available to sign off the cost estimate..". The Preliminary Budget Estimate had been provided in May 2016, and paid for in August 2016, and that can only be a reference to there having been a discussion of the requirement for a further cost estimate by the QS. The reference to "signing off" suggested that there may have been some discussion at that stage of the DA requirements, as confirmed by Mr McCrae in his oral evidence. However there is no indication that cost was discussed; and in oral evidence, in response to a question whether he discussed at that meeting the need to pay BDA anything further, Mr McCrae stated not at that time. 8. Exhibit DM 1 to Mr McCrae's affidavit includes a statutory declaration sworn on 10 September 2018 in which he states that during the design development stage he advised the complainants several times during meetings to obtain an updated Estimate of Cost, but was not given approval; he does not have any written records of those requests as they were all made verbally during the course of meetings. In that statutory declaration Mr McCrae states that at a meeting on 4 March 2017 he showed Mr Decker the Cost Report form required for the DA, indicating the fee was $1750; and that Mr Decker refused to pay. He made contact with Bruce Davies then in New Zealand and reviewed with him verbally the current versus previous design. Bruce Davies emailed him the signed and costed form on 12 March 2017, indicating no cost. 9. Mr Decker disputes that that is what occurred during the meeting on 4 March 2017. His evidence was that Mr McCrae did not advise that they needed to engage BDA to prepare a Cost Report, and he did not refuse to agree to pay BDA for one. In his affidavit Mr Decker stated that at the meeting they discussed what was required to finalise the DA submission and how long it would take for approval, and that he was told that the QS was required to certify the Cost Report as the estimated cost was above $1m. In oral evidence Mr Decker confirmed that the focus of the meeting was to finalise the plans for submission of the DA, and that the discussion of the QS was around one minute; he was told that they needed a QS, however he was not informed that a cost was involved. Mr Decker maintained in cross examination that he did not refuse to pay. 10. It was not in dispute that the Council requirements for lodging the DA were discussed at the meeting on 4 March 2017. The Tribunal finds that Mr Decker understood that a Cost Report, certified by a QS, would be needed for the submission of the DA given the value of the project: that is consistent with his oral evidence, and is confirmed by his email of 15 March 2017 in which he queried whether there was "any update on progress on the QS doing his work and the plans going into Council?". It is not plausible that the complainants could expect a report required for lodging the DA to be provided at no cost, a point Mr Decker conceded in cross examination when he agreed that if he had thought about it, it would be logical he would need to pay for a QS. The Tribunal concludes that it is more likely than not that at the meeting of 4 March 2017 the complainants were aware that they needed a Cost Report from the QS for the DA submission. Even if, as they contended, they were not aware of the BDA quote, it was still reasonable for them to expect that there would be a cost for the provision of that report. 11. It is not necessary to determine whether or not as asserted by Mr McCrae, Mr Decker refused to pay. Whether or not there was resistance from the complainants, or whether the question of payment was simply not raised at that meeting, Mr McCrae did not pursue the issue. His affidavit evidence was that the complainants were insisting that the application be lodged on the one hand yet refusing to pay for DBA to complete the cost report: he "felt like I was stuck between a rock and a hard place". The complainants were ultimately not required to pay for the Cost Report, as Bruce Davies did not charge for it, and Mr McCrae confirmed in oral evidence that not only was there no email attaching an invoice for the further work done by BDA, but that he did not raise the issue of non-payment. 12. A central concern is the basis on which BDA provided the Cost Report in March 2017, and whether that led to a misunderstanding on the part of the complainants as to the extent to which predicted costs had increased by that time. Mr McCrae's statutory declaration of 10 September 2018 and his affidavit of 26 September 2019 confirm that Bruce Davies, who was at that time in New Zealand, did not see the drawings, having explained that internet access was an issue and he would not be able to read drawings if they were sent; and the only document sent by Mr McCrae to Mr Davies was the Cost Report form. 13. The complainants take issue with the certification on the Cost Report that the QS had "inspected the plans the subject of the application for the development or construction certificate", and argue that on that basis they understood that the Cost Report was prepared on review of the plans as at March 2017. While Mr Davies had not seen the drawings as at March 2017 (contrary to the parties' agreement at [19] in the Agreed Statement of Facts) Mr McCrae's evidence was that he updated Mr Davies on what had changed since the plans on which he provided the preliminary budget estimate in May 2016. That does not explain why, having regard to the amendments Mr McCrae stated he had worked on in the intervening 10 months, the net construction cost remained the same at $1,054,234. The total development cost at $1,275,623 was attributable to Davies' inclusion of consultants fees (Annexure p 32, Mr McCrae affidavit 29 September 2019). 14. On 21 July 2017 Mr McCrae recommended that a new QS costing be obtained, on the basis that construction costs had risen and that many additional items/construction changes had occurred in the design since the original costing, and stated that "we believe it is vital for a revised cost to be completed to allow you to reduce/equal/increase items to suit your budget". Mr McCrae stated that their previous QS had retired "but we are using another", and "I can obtain a quote for you". In an email of 17 August 2017 Mr McCrae repeated the recommendation that the project was repriced "to take into account all that has been added and adjusted and increased construction costs that have occurred since we started this project", and also that another pricing be obtained "prior to tendering". The link between the projected cost and the architects' fees was made clear, in the comment that the projected invoice table did not take into account "percentages being based on that increased amount…". While according to his affidavit evidence (at [156]) Mr McCrae was concerned as to the extent of the revisions and amendments that occurred between the start of July and mid August, and that that was why he continued to suggest that an updated budget estimate be obtained "so as to avoid what architects would describe as 'tender shock'", it is not apparent that he pressed the complainants to obtain a new QS costing. 15. The email communications confirm that the complainants were careful to check and query invoices for various consultants before payment; it is consistent with that approach that they would have queried any QS invoice, particularly if they had not seen the BDA quote. 16. It was not until 29 December 2017 that Mr Decker confirmed in writing a request for Mr McCrae to obtain a QS quote. The complainants assert that they had already asked Mr McCrae to obtain a QS quote and that Mr McCrae failed to do so. The architects dispute that the complainants made such a request. The dispute centres on the terms of the email sent by Mr McCrae on 21 July 2017, outlining the "current thoughts on programme" (TB 609). In that email Mr McCrae confirmed the engagement of structural stormwater, civil, and landscaper consultants and a certifier, and stated "new Quantity Surveyor Costing – recommended". Mr McCrae stated that he "[w]ould like to address swimming pool design/equipment room/landscape integration with our works and stormwater/civil asap"; and further, that "[c]onstruction costs have risen and many additional items/construction changes have occurred in design since the original costing and we believe it is vital for a revised cost to be completed to allow you to see where you might reduce/equal/increase items to suit your budget. Our previous QS has retired but we are using another. I can obtain a quote for you". 17. In his affidavit Mr Decker stated that on receipt of that email, the plans had not changed materially between March 2017 and July 2017, he was travelling frequently to New Zealand for work, "and as David had said he would obtain quotes for the work I did not feel a need to respond". In oral evidence it was put to Mr Decker that he chose not to respond: Mr Decker agreed that he had said that, however there were lots of meetings at that stage; it could be a misunderstanding or miscommunication as to whether he had to respond to get Mr McCrae to get a quote. 18. The Tribunal does not consider that there was any ambiguity in Mr McCrae's statement on 21 July 2017 that he "can obtain" a QS quote. In the context where the complainants checked every quote and invoice, whether for the architects' fees or for consultants, and had made their requests and instructions explicit, it is not feasible that Mr Decker could read what was said to mean that Mr McCrae was going to get a QS quote without waiting for approval from the complainants, or that a response was not required. 19. The next mention of costing is in Mr McCrae's email of 17 August 2017 (TB 639) where he states: Please see attached paid and projected invoicing and dates for this project. Please note that we recommend that the project is repriced to take into account all that has been added and adjusted and increased construction costs that have occurred since we started this project. We would also recommend another pricing prior to tendering. This is also an estimate of proposed timings for works too and some factors may influence this. Please also note this projected invoice table does not take into account percentages being based on that increased amount, no[r] increased construction cost once building starts, nor any additional printing, amendments, or additional services to our current contract. 1. In oral evidence Mr Decker agreed that this email was an alert by Mr McCrae, and said that that evening they spoke on the phone and he asked him to get a QS quote. 2. The evidence before the Tribunal supports the finding that Mr Decker and Mr McCrae spoke by telephone on 21 August 2017. 3. On 19 August 2017 Mr Decker emailed Mr McCrae, commenting that the timetable and invoice forecast was helpful "but I think we need to speak more regularly". Mr Decker continued: I'd also like to speak about your proposal to have the scope re-priced by a quantity surveyor. We expect that the total cost of the project will be above the ECW on which you are basing your invoices and is $300k above the $700k in your engagement (I assume we agreed a variation but don't have a record of it to hand – can you please provide)? What we don't know is which costs will be allocated to the builder's contract or how that relates to the ECW on which you base your invoices. I guess we're a bit reluctant to pay a QS a couple of thousand dollars to tell us something we already know when the builder's tender will confirm the actual price anyway. Does this impact our arrangements with you? If so, let's have a conversation about that sooner rather than later. 1. On 21 August 2017 in an email to Mr McCrae at 5.53pm with a list of matters to be discussed in a telephone call arranged for 8.30pm that evening, Mr Decker included "whether we need a QS update and how/if it affects our arrangements with you" (TB 636). 2. There is a dispute as to what was discussed on 21 August 2017. Mr Decker's affidavit evidence was that after sending the email at 5.53pm on 21 August 2017 he left to collect dry cleaning near his office and Mr McCrae rang on his mobile while he was standing on Hunter Street. He recalled Mr McCrae said "we should have a QS reprice the design", and did not explain why; Mr Decker stated that he told him he could source quotes for the QS work if he felt it needed to be done. In oral evidence Mr Decker maintained his position that he asked Mr McCrae to get a quote. 3. In his affidavit Mr McCrae confirms there was a telephone conversation later on 21 August 2017, in which he explained that the CAA was based on percentage fees per stage of works based on the cost of works current at each stage, and Mr Decker stated he understood the principle. Mr McCrae stated that he said that updating the costs of works based on QS advice would ensure an understanding of where the budget currently lies and can amend if required, so they would recommend engaging the QS to keep them informed. In oral evidence Mr McCrae could not recall Mr Decker asking him to get quotes. Asked if he responded to the query about how that might affect the contractual arrangements, Mr McCrae stated that Mr Decker already knew that their fees were a percentage linked to the ECW. 4. The Tribunal does not accept that Mr Decker asked Mr McCrae to get a QS quote on 21 August 2017. While the Tribunal accepts that there was a phone call in the evening of 21 August, the subsequent email queries, including in an email of 28 September 2017, are inconsistent with there having been approval given or a request made on 21 August 2017 for Mr McCrae to obtain a QS quote. 5. Mr Decker's email sent at 9.35pm on 28 September 2017 (TB 700) raised "other outstanding points", including: We reviewed the QS estimate from March 2017 which was $1.054m (excluding the pool and landscaping). We acknowledge that you have suggested that we have our updated design re-estimated. Can you please advise the specific areas of the design that cause you some concern re the estimate? 1. Mr McCrae's response at 11.32pm that night (TB 702) was "General construction costs have risen since the actual costing was done in May 2016 – pool is more elaborate, additional joinery has been added, structure is more elaborate, etc." In oral evidence Mr McCrae stated that that was the only further explanation he gave at that time; he may not have raised the QS issue again. 2. Mr Decker continued to query the value of obtaining an updated costing, including in his email of 28 December 2017. On 29 December 2017 Mr Decker emailed to Ms Manfredini "Please obtain the QS quote". 3. In his affidavit Mr Decker stated (at [44]) that he thought "May 2016" was a typographical error and should have read "March 2017" as that was when they understood the last costing had taken place. He stated he "expressly referred to March 2017 Cost Report in my reply and David did not clarify". The emails in evidence do not confirm whether there was a further email after that exchange in which Mr Decker referred to "March 2017 Cost Report". The Tribunal is of the view that Mr McCrae's reference to the "actual costing" being done in May 2016 would have clarified, consistent with what Mr Decker accepted was their understanding, that the purpose of the Cost Report in March 2017 was not to provide a revised budget estimate. There is no indication in the emails that the complainants sought clarification, or that Mr McCrae offered any. 4. The Tribunal is satisfied that by that stage in the project the complainants could have been under no misunderstanding as to the relationship between the QS costings, and estimated cost of works, and the architects' fees on a percentage basis. The architects had given ample evidence of the changes and amendments that were driving costs up, as well as the additional scope of the project including the pool, landscaping and the front fence. The complainants understood the purpose of the DA Cost Report, and if there was any misunderstanding that it was not an updated cost estimate, despite recording the same net construction cost as that estimated some 10 months earlier, the complainants were in a position to know that by September 2017. The request to obtain a QS quote was not made until December 2017. Invoice 12 1. Invoice 12 of 5 January 2018, for an amount of $17,325.00 (TB 951), is in dispute. The architects explain that this invoice represents two aspects of the project. The first is a progress claim from the previous invoice, Invoice 11 of 11 September 2017, the architects submitting that the evidence establishes (TB 1359) that the project had progressed a further 10%, from 60% complete to 70% complete between those invoices. The second aspect relates to the uplift in fees consequent on the revised cost estimate provided by Ms Manfredini on 27 December 2017. 2. The ARB submits that there is sufficient evidence on which to find that there was no agreement to amend the cost of works, a requirement stipulated in the CAA. On that basis the uplift of the fees for the project for the estimated cost of works at $1,500,000, as explained in Ms Manfredini's email of 5 January 2018, was not in accordance with the CAA. 3. The architects submit that there was a contractual basis for the charge, being the percentage fee set out in cl E.1 of the CAA. Having regard to that provision, and the definition of "Cost of Works", the fees that the architects could permissibly charge were not based on the estimate, but on the final cost of all work; the fees could be retrospectively altered; and while any revised cost of works was subject to agreement in accordance with Part C of the CAA, agreement is implicit because the work, whether by variation or otherwise, had to be performed by the architects. 4. The architects submit that even if that interpretation of the CAA is not correct, there was agreement to the final cost of works on which the percentage fee was based, because Ms Manfredini provided the complainants with an updated cost estimate on 27 December 2017 together with an explanation of the increased cost, and Mr Decker responded acknowledging the amended cost estimate. He did not in the remainder of that email take issue with respect to the revised cost estimate but rather raised issues with respect to further work that was required to be done; and it was only when Ms Manfredini rendered an invoice calculated on the basis of the revised cost estimate that Mr Decker raised the issue of there being no agreement. The architects submit that it is open to the Tribunal to draw the inference that Mr Decker had accepted the revised cost of works for the project, based on his initial response to Ms Manfredini's revised cost estimate, in circumstances where he had conceded in oral evidence that he had read and understood the CAA; there were voluminous amendments to plans and specifications; and he had been advised on numerous occasions that he should get a new cost estimate and the reasons why. 5. In the alternative, the architects submit that if there was no agreement and the amount of Invoice 12 is incorrect, the conduct of Ms Manfredini in uplifting the fees was simply a mistake and cannot be the subject of disciplinary proceedings. If the basis on which the fees were uplifted was wrong, it did not breach cl 7 of the Code of Conduct. 6. The context for the issuing of Invoice 12 can be summarised as follows. On 27 December 2017 Ms Manfredini emailed to the complainants a "Pre Tender Budget Estimate" based on the Preliminary Budget Estimate by BDA Consultants dated 19 May 2016, with updated items shown in red. Mandfredini stated that the estimate was provided "based on our knowledge and experience, in order to assist you to understand the likely costs involved with the project". Ms Manfredini stated that it was "based on the additional scope of works added to the project", and was a conservative estimate and that it was likely that tenders would come in higher than the figure estimated. 7. The Pre-Tender Estimate (TB 197-8) shows a significant cost increase on "family and kitchen extension" ($200,000); "bedrooms and study extension" ($275,000); excavation and work for rainwater tank room and store and new pool equipment room; and an additional cost for steel doors and windows. The total estimate provided in that document was now $1,595,826 incl builder's margin, and $1,655,409 incl GST. In her affidavit of 29 July 2020 Ms Manfredini explained (at [6]) that in preparing the estimate she had taken into account the fact that construction costs had increased; that there had been between March to December 2017 approximately 100 amendments or revisions to the design drawings at the behest of the complainants; the requirement that the basement rainwater tank room be fully dry and waterproof was requested by the complainants; the ARB's document issued in 2017 stating that construction costs in Sydney had increased by 20% in the last 12 months; that fixtures and fittings sought by the complainants were upgraded from medium standard to high standard finish; that there was upscaling of materials such as for windows and doors where the complainants sought steel framed rather than standard timber or aluminium; that there was more complex detailing to all aspects of the design particularly for the windows, the suspended parapet roof over the rear deck and first floor deck; and the additional scope of work updating the existing house including removing the existing bay window, replacing the gas heater, light switches. The pool and landscaping quotes which exceeded the sums allowed for by the QS in May 2016 were not included in her budget estimate, to provide a conservative estimate. 8. On 28 December 2017 Mr Decker replied (TB 797), stating "we appreciate the updated cost estimate – it is a useful tool. And there was an element of 'sticker shock', which I imagine was partly your intent". Mr Decker requested consideration of reducing cost by opting for a 2,000L not 10,000L water tank, queried the additional $30,000 estimate for steel doors and windows, and requested discussion of "other potential refinements to reign[sic] in the cost somewhat". In that email he said that he had not pursued getting a QS estimate, because he was unclear of the value of a QS so close to tender, and Mr McCrae had not provided detail in September of the matters going to the increased costs. 9. Ms Manfredini replied stating that she still recommended obtaining a pre-tender estimate from a QS, to provide a basis for assessing the tenders, and that she could obtain a quote; she noted that that would take time and may push out the date to issue tenders. In an email on 29 December 2017 Mr Decker said "Please obtain the QS quote" (TB 801). 10. On 5 January 2018 Ms Manfredini advised that the QS would take 2-3 weeks for a pre-tender estimate report, which would cost $3,000, and "as we are close to issuing the documents for tender the timing may not be worthwhile". Ms Manfredini stated that the QS had confirmed that tender prices had increased a lot in the last few years, and her Pre-Tender Estimate was likely to be a low estimate. She proposed for the purposes of their fees, to set the cost of works on the Pre-Tender Estimate rounded down to $1,500,000, and sent Invoice 12 for 70% completion of the works, including an adjustment for the whole of the Contract Documentation stage. 11. On 10 January 2018 (TB 804) Mr Decker advised that the contract stated that the ECW could be amended by agreement, and that they did not accept the proposed amendment to the ECW, "and hence your invoice is not valid"; and they were keen to examine options to reduce the cost "including fully understanding how and why the 10,000L water tank is required". 12. Ms Manfredini maintained the position that the invoice was valid, based on the pre tender estimate provided; Mr Decker disputed that the contract permitted the architects to determine the pre-tender estimate and base the cost of works on that amount. The complainants' dissatisfaction with the architects' services was detailed in a long email of 23 January 2018, in which Mr Decker outlined "overall concerns" with MM+J's performance, and detail of concerns including relating to the DA Cost Report, and asserted that the primary cause of multiple iterations of the Construction Drawings was errors by MM+J, and that MM+J had not met reasonable standards of conduct, and had not notified them that the timetable was not achievable. Discussion and findings 1. The estimated cost of the project had increased substantially from the original $700,000 ECW in January 2016. The Pre-Tender Estimate prepared by Ms Manfredini represented a further substantial increase in the estimated cost, from $1.054m to $1,595m, and that was reflected in the adjustment of the percentage fee for Invoice 12. 2. The issue is whether there was a basis in the CAA for Invoice 12. Clause E.1 of the CAA provides that percentage fees "are calculated and adjusted progressively against the budget for the Cost of Works adjusted in accordance with Clause C, subject to final adjustment against the Cost of Works, when determined". Clause C Cost provides that estimates of the Cost of Works may be revised during the project "and such revisions must be in accordance with client or consultant advice, tenders or offers received and any adjustments during construction". Clause C further provides that as revised estimates of the Cost of Works are prepared, "the client and the architect must agree the adjusted budget for the Cost of Works". 3. The architects rely on a reading of clause C.2, being the definition of "Cost of Works", together with Sch E1, for the submission that the fees the architects can charge are not based on the estimate but rather the final cost as defined; the fees can retrospectively be altered; and that while any revised Cost of Works is subject to agreement in accordance with Part C of the CAA where there is a revised cost estimate, agreement is implicit because the work, whether by variation or otherwise, has been undertaken and performed by the architects. If that were not the case a client could simply refuse to acknowledge the additional cost of the works or excise certain obligations rendering the final cost lower than it would otherwise realistically be which would undermine how the CAA operates. 4. In the Tribunal's view that reading of the CAA does not accord with the wording of clause E1, which provides for the calculation and adjustment of percentage fees during the project "against the budget for the Cost of Works adjusted in accordance with clause C", subject to final adjustment against the Cost of Works. That is defined in clause C.2 as the final cost of work designed, specified or scheduled by the architect including the final adjusted contract price in accordance with any building contract. Invoice 12 was for 70% of the Construction Documentation milestone, and until the final cost for the project was determined in accordance with clause C.2, had to be based on the budget as adjusted in accordance with clause C. And clause C specified that revisions of the estimates of the Cost of Works "must be in accordance with client or consultant advice, tenders or offers received and any adjustments during construction". 5. Ms Manfredini's proposed revised ECW was not based on "consultant advice, tenders or offers"; and while no doubt soundly based on her experience, taking into account the factors to which she referred in para [6] of her affidavit of 29 July 2020, it did not comply with Clause C of the CAA. 6. The Tribunal does not agree with the architects that in not stating that the Pre-Tender Budget Estimate of 27 December 2017 was not agreed until 10 January 2018, the complainants had impliedly agreed to that as the revised ECW. Mr Decker's immediate response on 28 December 2017 was to query certain elements and to request discussion to try to "reign[sic] in the cost somewhat", which cannot in the Tribunal's view be read as agreement. 7. The Tribunal concludes that it would have been preferable for the architects to have had an independent costing prepared by a QS, if necessary at their expense, which would have been a basis for revision of the estimate under clause C of the CAA. The Tribunal notes, however, that while the architects did not pursue that option, the complainants had had the benefit of the additional work done by the architects, as evident in the significant number of variations, and it appears were unwilling to pay additional fees based on the escalation estimated by Ms Manfredini. That the architects would have been entitled to recover fees for the work done in reaching 70% completion is reflected in the provision for adjustment in C.2 Cost of Works of the CAA. 8. The Tribunal does not agree with the architects that the conduct of Ms Manfredini in uplifting the fees by Invoice 12 was a mistake. While Ms Manfredini relied in her email of 18 January 2018 (TB 805) on clause A.4 of the CAA which provided that the architects' services included to "co-ordinate the preparation of a pre-tender estimate of the Cost of Works", the terms in which Clause C provided for preparation of revised estimates of the Cost of Works did not envisage a pre-tender estimate prepared solely by the architect. Ms Manfredini must have been aware from her discussions with Mr McCrae about the project on an ongoing basis (referred to in paras [11], [12] of her affidavit of 26 September 2019); the email communications between the complainants and Mr McCrae, including their querying of invoices throughout the project to date; and Mr Decker's reaction to the Pre Tender Budget Estimate of 27 December 2017, that the complainants were anxious about the program and the costs of the project. 9. The architects could, pursuant to clause E of the CAA, have charged separately for variations and provision of services beyond those specified in Appendix 1 and 2 of the CAA, quantified by Ms Manfredini in her affidavit of 29 July 2020 to be 122 variations at Design Development stage; 55 at DA stage; and 101 at Contract Documentation stage. While the architects did not do so, that would not justify the issuing of an invoice based on an estimated cost of works that was not agreed by the client. 10. It is clear that by the time Invoice 12 was presented, the complainants had significant concerns about the stage the project had reached, and in particular readiness for tender. In the Tribunal's view the architects were acting responsibly in providing the Pre-Tender Estimate in December 2017, when faced with clients who were not following up on suggestions that they obtain a QS estimate, and when it was clear that the likely cost of the works had increased significantly. So much was acknowledged by the ARB in its finding on cl 4(1)(a) of the Code of Conduct. However, that did not justify the issuing of an invoice on the basis of such an estimate. Management of consultants BDA 1. The background to the engagement of BDA, and the preparation of the Preliminary Budget Estimate in May 2016 is summarised above. The central issue concerning management of the process with the QS consultant relates to the cost report provided in March 2017. The complainants alleged that the architects had provided a false certification from the QS on the cost report accompanying the development application submitted in March 2017, which misled them and the Council as to the estimated cost of the renovation; and that in December 2017 they were advised by the architects that the cost report was based on the design as at May 2016. 2. It is not in dispute that in February 2016 Bruce Davies of BDA provided a quote to Mr McCrae on behalf of the complainants for QS fees relating to the property. It is also not in dispute that in April 2016 the complainants provided instructions to Mr McCrae to retain BDA to provide a preliminary budget estimate at concept design stage, and that in May 2016 BDA issued a preliminary budget estimate, which Mr McCrae provided to the complainants at a meeting. That budget estimate was $1,159,657 incl of GST and anticipated builder's margin. It is also not in dispute that on 10 March 2017 Mr McCrae asked Bruce Davies, then in New Zealand, to provide a Cost Report, stating "Please find attached the Costing report that needs to be filled out by you and signed to be submitted to Willoughby Council for the Development Application …I would greatly appreciate it if it could be provided by Monday lunchtime"; and that on 12 March 2017 Mr Davies sent to Mr McCrae the signed cost report, stating total construction costs as $1,054,234. 3. In dispute is whether the complainants were in fact advised and asked to engage BDA to prepare an updated cost report as part of the development application; whether the complainants refused to engage a QS to prepare an updated report following the development application and before tender; and whether Mr McCrae failed to obtain quotes for a QS to prepare an updated report. 4. The ARB submits that there was a misunderstanding that arose because the complainants understood that the QS had prepared an updated cost report as part of his work in reviewing the plans associated with the DA, and based on that had understood that an updated cost of works had been done in March 2017 that was largely consistent with the cost report prepared in May 2016. The ARB submits that a key factor in contributing to that misunderstanding was that the complainants were not provided with the BDA quote, there being no record of it having been provided to them, and it having been signed by Mr McCrae personally rather than the complainants. The ARB submits that the Tribunal should find that the complainants were not advised that they needed to pay BDA for the further work and the issue was not raised with them. 5. The ARB further submits that in certifying the cost report in March 2017 Mr Davies had not inspected the updated plans that were the subject of the development application, as those plans were not sent to him in New Zealand, and his cost estimate was based on the earlier drawings he had seen in order to prepare the preliminary cost estimate. 6. The architects submit that the QS was engaged after approval from the complainants, and that by May 2016 the complainants were well aware of the QS report and the revised cost estimate provided in May 2016 which was higher than the initial budget of $700,000, and the circumstances as to why estimated costs had increased. The architects submit that the complainants insisted on submitting a development application but refused to pay for a revised QS report; and that notwithstanding that unreasonable conduct, the architects took the necessary steps to ensure that Mr Davies revised and confirmed a report for the purpose of submitting the DA to Council. Even if Mr McCrae did not provide the complainants with a copy of the BDA quote, the evidence demonstrates that Mr McCrae had impressed on Mr Decker the need to get an updated QS report. Any confusion was because of Mr Decker's erroneous assumption as to the function of the QS report, whereas Mr McCrae had made clear at the meeting of 4 March 2017 what the purpose was. The architects submit that the QS report was purely a requirement of Council for the purposes of the DA, and if Mr Decker misunderstood its purpose or assumed that it constituted a revised cost estimate there is no evidence that he raised that issue at the time. Discussion and findings 1. A Cost Report was required by the Council for the lodgement of the DA, the development costs being relevant to determination of the fees payable for the DA. As discussed above, the complainants were aware that they needed a Cost Report for the DA. Notwithstanding that the complainants did not authorise Mr McCrae to obtain the Cost Report from the QS, or agree to pay for it, the DA was lodged, and development consent was granted in June 2017. As discussed above, Mr McCrae subsequently advised the complainants to obtain a cost estimate so they could keep track of the project; however there was no further mention of the need to do so after August 2017, and no authority was given by the complainants to engage a QS for that purpose until December 2017. 2. The certification of the Cost Report of 11 March 2017 included the statement that the plans had been inspected, and that the cost report was accompanied by "an elemental estimate". The original BDA quote included provision for a measured elemental estimate at DA stage, for $1,750.00. As discussed above, there was no such elemental estimate. The complainants' position was that they were misled by those statements and thought that the Cost Report had been prepared on the basis of the plans as they were in March 2017. That that was not so was made clear to them by September 2017 in Mr McCrae's email in which he referred to the "actual" costing of May 2016, at the time they were being urged to obtain a QS costing before tender. Notwithstanding that by September 2017 the complainants were in a position to understand that the basis on which they had been proceeding since March 2017 was not as they had thought, the complainants resisted the architects' advice that they get an updated QS costing. 3. Whether or not that position was an appropriate response having regard to their obligation under the CAA to cooperate fully with the architect to ensure efficient and satisfactory progress through all stages of the project, the Tribunal concludes that the architects did not manage the QS process effectively. The architects and complainants had agreed in the CAA that the architect was responsible for the coordination of specialist consultant's services. The Tribunal concludes that the uncertainty as to whether the complainants had been provided with the BDA quote, the circumstances in which Mr McCrae obtained the Cost Report in March 2017, and the failure of Mr McCrae to follow up on his advice to the complainants that an updated QS costing be obtained, meant that the complainants were not provided with sufficient information to enable them to make informed decisions as to the specialist services required to progress the project effectively, and the architects did not manage the coordination of those services appropriately. NBC 1. The ARB submits that the architects commissioned work from Northern Beaches Consulting Engineers Pty Ltd (NBC) for structural engineering services provided to the complainants, without their consent. The ARB relies on the query by the complainants of an invoice from NBC in January 2018, which on checking was commissioned by "Victoria at MM+J", and not the complainants (TB 814). 2. The architects submit that NBC had been engaged with the complainants' approval since on or about 17 November 2015; and that it was extraordinary for the complainants to suggest that variation work which they had instructed the architects to undertake which required a structural engineer's sign off, would be limited to simply the variation instruction itself. Discussion and findings 1. The email correspondence confirms that NBC was engaged early in the project. NBC provided a quote for initial site inspection and preliminary design for $1800 dated 12 November 2015, and in an email of 17 November 2015 Mr Decker stated that the complainants were "OK to go ahead with the structural engineer" based on "confirmation that the scope includes an opinion on whether we can safely and cost effectively excavate under the existing main floor". There were quotes and invoices for other work later in the project, as evidenced in an email of 6 April 2017 (TB 557) in which Mr Decker asked Mr McCrae to check an invoice they had received from NBC, whether the amount was correct, what it was for and how and when they approved it. Mr McCrae responded "Correct invoice and original quote sent in previous email" (TB 558), forwarding an email of 5 April 2017 in which he stated "apologies this invoice slipped through", attaching the original quote and invoice for payment, and stating that "they match and are for the stormwater works required". 2. In an email of 10 July 2017 (TB 598), after the development consent was granted, Mr Decker asked Mr McCrae for an outline of what was required from structural and other consultants "at this point". On 12 July 2017 (TB 606) Mr McCrae advised that they needed "to move on Structural and Hydraulic issues first". He advised that quotes from NBC for their services to meet the obligations of the DA were fair and reasonable for the amount of work required, and requested that they be signed and returned to him. Mr Decker on 14 July 2017 (TB 606) said he wanted to understand what the structural scope encompassed "and how it dovetails into the design development, construction and certification process", and whether they would "require further structural signoffs not included in this engagement throughout the process". In an email of 19 July 2017 (TB 602) Mr McCrae referred to a "final civil quote", and said that he had "on previous advice" sent off approval to them for "Structural and Stormwater". On 20 July 2017 Mr Decker confirmed that they were "happy to proceed with based on all quotes provided" (TB 603). On 21 July 2017 Mr McCrae provided (609) a list of "all consultants engaged asap" including that "structural", "stormwater" and "certifier" were engaged. 3. There were other invoices from NBC for work after the preliminary stage, for example an invoice sent to the complainants on 10 November 2017 (TB 761) which they queried with Mr McCrae. On 11 November 2017 (TB 762) he explained that it was for "full structural design of house and pool up to and including what is needed for construction certificate level (after tendering)", and Ms Pritchitt responded on 12 November 2017 (TB 762) that "it was so long ago we had forgotten about it", and confirmed payment on 16 November 2017 (TB 763). 4. The disputed invoice dated 11 January 2018 is provided in the ARB's s 58 documents. The amount due of $1210.00 is stated to be for work done in November and December 2017, on the glass roof design, carport amendments, and the dining room window. The architects state that the glass roof design was part of the original design and that item was removed from the invoice, and the other items were in response to client requests. In his email of 23 January 2018 (TB 807) refusing to pay that invoice, Mr Decker stated that the scope of work "appears to be related to the scope of work we accepted in July 2017 at a cost of $8,000 incl GST", and stated: "The terms under which this work was conducted expressly stated any variations would be subject to a quote provided to the Client and written acceptance of the quote". The complainants contended that the work having been commissioned by "Victoria at MM+J" was "clearly a breach of the NBC agreement (and Schedule F of our contract with MM+J)", and they considered that that invoice was "a matter between NBC and MM+J". 5. The complainants were, as noted above, diligent in checking engagement of and invoicing of consultants for the project. Mr McCrae's oral evidence was that the complainants required authorisation to engage contractors stage by stage. There is evidence as to the complainants' agreement for the engagement of NBC for preliminary work in November 2015, and confirmation of payment for later invoices once there was an explanation provided as to what it was for. The email correspondence confirms that in July 2017 the complainants accepted a quote for structural engineering work by NBC; however the Tribunal was not taken to the quote itself. While it is clear that the architects responded to requests for clarification of particular invoices, as in the November 2017 correspondence with Ms Pritchitt, what is not clear from the documents before the Tribunal is how the disputed January 2018 invoice related to the July 2017 quote which was accepted by the complainants, or the subsequent payments of invoices. 6. On the available evidence, including Mr Decker's email of 23 January 2018, the complainants appear to have adopted the position that they would not pay any invoice for costs they had not expressly approved, even if the work had been done in response to their requested amendments to the plans. That is made clear in Mr Decker's email of 7 February 2018 in which he states: Under our contract with you, we are required to appoint all third party consultants. Under our contract with NBC, all variations are subject to a quote and client confirmation process – and as we are not in the construction phase, NBC cannot rely on the note that provides them the ability to rely on architect instructions. 1. The architects agreed to pay the NBC invoice, which would appear to be a recognition that they should not have forwarded the invoice to the complainants without their prior authorisation of the additional scope for the carport amendments and the dining room window. The emails confirm that the latter was requested by the complainants on 21 November 2017 (TB 771). The Tribunal is not critical of the architects for having adopted that approach, or for having, as is common practice, engaged the consultant in order to meet the exigencies of the project. However, the terms of the CAA are clear as to the engagement of consultants. Communication between architects and complainants Provision of information and communication 1. The ARB accepts that there was communication between the architects and the complainants, however submits that the concern was the quality of the information being provided, and that while there was regular contact between them, information regarding critical aspects such as the management of the project, cost and timeframe were not adequately conveyed. From early June 2016 the complainants expressed their desire that they would like to get a better understanding of the overall process and agree some more detailed communication protocols; and they raised the issue of communication repeatedly from mid 2017. 2. The ARB submits that a key aspect of the complaint related to the quality and quantum of the communication from the architects and their failure between January 2016 and December 2017 to provide a written record of meetings. The complainants asserted that the poor quality and lack of communication substantially contributed to the delays in the project and the dispute between the complainants and the architects; that they repeatedly shared their concerns with the architects but there was no improvement; and that there were incomplete emails from the architects including unfinished sentences, and emails which promised follow up actions that were not completed. A critical factor regarding communication is that Mr McCrae undertook to provide weekly updates to the complainants and then failed to do so. 3. The ARB identified in written submissions (at [93]) a number of occasions during the project when the complainants raised issues with communication and the provision of information. The ARB points to requests for an update and advice on next steps on 6 June, 30 August, and 13 October 2016; comments as to a lack of communication on 24 August, 19 October and 27 December 2017; requests for regular updates on 28 August and 14 September 2017; and responses from Mr McCrae. On 24 August 2017 Mr Decker suggested a weekly email outlining what activity had taken place and what was needed from them "to keep things moving"; and Mr McCrae responded saying "happy to do this if it helps". On 27 August 2017 Mr Decker requested that an email be sent by Mr McCrae outlining what was agreed, what he would be working on during the next week and what was needed from them. In an email on 14 September 2017 Mr Decker repeated the request for weekly updates "of actions taken and where we need to focus/respond to you" and Mr McCrae responded "Yes. Will have more tomorrow". 4. In his affidavit Mr Decker stated that the difficulties in dealing with Mr McCrae were that he predominantly communicated by emails, sometimes face to face meetings and rarely by telephone conversations; many of his emails were unintelligible; they often had to seek clarification of statements made; there were many typographical errors and sometimes sentences not completed; and many promises not only regarding the construction but also adequate communication such as weekly reports were not fulfilled. Although they repeatedly requested improved quality and quantity of communication from Mr McCrae he did not do so; and communication with Mr McCrae regarding the construction was extremely challenging and frustrating. 5. The architects submit that there was an inordinate amount of email exchanges, meetings and attendances, and the level of communication between the parties was extraordinary. In his affidavit Mr McCrae stated that he was surprised by Mr Decker's email of 24 August 2017 (TB 642) in which he stated that the complainants were feeling there was "a lack of communication at the moment and this is particularly concerning as we do not want the schedule to slip any further", and requested weekly updates. Mr McCrae stated that he was fairly shocked, given that they were in regular communication by email and telephone as well as site meetings; and in the period from the beginning of August to that email there had been 10 communications from him and 7 from Mr Decker. Mr McCrae commented that more often than not there was a delay from the complainants not responding to emails he had sent, most notably in relation to the 21 July 2017 email which recommended obtaining a revised cost budget. Mr McCrae confirmed that he was happy to provide weekly updates "if this helps" (TB 644). Mr McCrae stated that as a general comment, in current and past projects he was not required to correspond with his clients nearly as much as the complainants, and he stated he "bent over backwards to accommodate them to try and see the project through". Discussion and findings 1. In his affidavit Mr Decker stated that from the outset he advised the architects that he and his wife were busy with their careers and young children and relied on the architects' expertise and knowledge; and they would only be contactable after hours and on weekends. That is borne out by the email correspondence in evidence. The pattern of communication consisted of emails, often sent and responded to late at night, with responses to queries or statements embedded sequentially in the response, on occasion through more than one exchange between the architects and the complainants. The complainants frequently sent several emails in succession, minutes apart. Meetings were scheduled for weekends and after hours. In an email of 1 September 2017 (TB 668) Mr Decker expressed appreciation for Mr McCrae's ongoing availability on weekends. 2. As acknowledged by the ARB, the complainants on occasion failed to provide prompt instructions. The complainants continued to raise issues with respect to some matters that the architects thought had been resolved, for example in relation to the 10,000L water tank included in the plans which was raised by the complainants in their response to Ms Manfredini's Pre Tender Estimate in December 2017. In response to that query, Ms Manfredini confirmed the tank was always part of the On Site Detention (OSD) requirement for the DA, was required by the stormwater engineer, and it included the requirement for BASIX. The complainants had been told that, and had confirmed in an email of 11 December 2016, following a discussion on that date, "ok re 10kltr tank". 3. While he did not respond as frequently or in as much detail as the complainants would have preferred, Mr McCrae did at times specify was happening, and what was needed from them: for example, in an email of 7 November 2016 advising that detailed design could wait until the DA was approved (TB 511); on 6 December 2016 providing follow up from a meeting the previous weekend (TB 519); in an email of 27 March 2017 outlining the process after DA was lodged (TB 553); in an email of 15 August 2017 (TB 631) in which he stated that he needed input from the pool contractor on the physical operation and design so it could be worked on in collaboration with the structural engineer and landscaper, and that he wanted to "tie down the bathroom/laundry/kitchen/cupboard/stair design so that we can move further with basement works and other construction details"; an email of 25 August 2017 (TB 645) responding to a request for clarification as to what the complainants needed to be looking at in order to get the tender finalised; and in an email of 1 September 2017 reporting on "current status", "what we will be looking at next", "what we need from you", "next meeting", and "next decisions to finalise" (TB 660). In his affidavit at [21] Mr Decker acknowledged that his meeting with Mr McCrae on 24 October 2017 had discussed a strategy to accelerate the timetable, which included separating time critical and non-time critical actions. That is consistent with the statement of Mr McCrae at [185] of his affidavit as to what was discussed at that meeting, and the list of items provided in an email by Mr McCrae on 25 October 2017 that would not affect the tendering process and items that needed to be considered that would affect the tendering process (TB 735). That list included the pool and landscape contractors which needed to be signed so their documents could be co-ordinated. Mr Decker responded on 29 October 2017 (TB 736) that the pool contractor "should be signed this week". 4. Ms Manfredini's evidence (para 48], affidavit 26 September 2019) was that when she took over management of the project the complainants had not engaged the contractors for the landscaping and pool and so documentation required for the tender was not available. While Mr McCrae had been engaged in discussions and meetings with the proposed contractors during the project and quotes had been provided, and he was aware in November and December 2017 that the documentation was required for the tender (as noted at [192] in his affidavit), there is no indication in the email communications that Mr McCrae had made it clear to the complainants that the tender could not proceed without formal engagement of those contractors. Airconditioning 1. Airconditioning was included in the final design after the complainants raised an issue with its absence. The architects concede that there was a discussion between Mr McCrae and the complainants about incorporating airconditioning in the design, however they submit that there was a subsequent discussion where he put forward an alternate proposal more in keeping with the architects' standard design philosophy. The architects submit that numerous versions of the designs were provided to the complainants which did not include air conditioning, and there was no reason to believe that the understanding that there would not be air conditioning was not correct. 2. The ARB submits that the failure to include airconditioning meant that amendments were required to retrofit it, including bulkheads to house the airconditioning ducts. Discussion and findings 1. In his affidavit Mr Decker stated (at [12]) that the complainants noticed in August 2017 that airconditioning was not included when they received the construction drawings. In an email of 27 August 2017 Ms Pritchitt confirmed that "we would like to proceed with air-conditioning consistent with our original position of having reverse cycle air-conditioning throughout the house" and requested an update of the plans to take into account the necessary ducting. Mr McCrae acknowledged in an email on 29 August 2017 that air conditioning was not included, and that while he believed it would not be necessary, "happy to include". In that email he also stated that they had allowed for some preliminary pathways such as the bulkhead above the dining room; the exact specifics of the design would form part of a separate sub contractor's work to be co-ordinated on site with the builder. The Schedule of Variations records that amendments were made to the plans on 1 September 2017. 2. The Tribunal is satisfied that the failure to make provision for airconditioning on the plans until September 2017 was an oversight by Mr McCrae. In his affidavit Mr McCrae stated at [175] that the issue had been discussed at length and that the decision he believed had been agreed on was that it would not be included as the house would be cooled using airflow. He stated that the issue was not raised again by the complainants until 26 August 2017. However, that is not consistent with Mr McCrae's response to an email of 6 February 2017 (TB 534) in which Mr Decker asked where the airconditioning equipment would be located, when he said that it was "currently in basement", and he would come back with a suggested plan (TB 537). 3. The complainants resisted having to engage another contractor, Mr Decker stating in his email of 28 August 2017 that they were not keen on spending money on a contractor now on something that should have been incorporated in the plan. On 30 October 2017 the complainants confirmed agreement to a provisional sum of $60k for air conditioning (TB 739). 4. At issue is whether the late inclusion of the airconditioning required other changes, including affecting the retention of the study ceilings as sought by the complainants. The late addition of the airconditioning did require the bulkheads to be added in the revised plans, and adjustment of the ceilings and profiles and room heights. However, in the Tribunal's view that was an inevitable consequence of the provision of airconditioning, whether included in the plans at an early stage or later. The provision of ducted airconditioning would ordinarily require the engagement of specialist contractors, and as Mr McCrae stated, require co-ordination with the builder during construction. Appendix 3 of the CAA included a Services Engineer in the list of specialist consultants whose services would need to be coordinated by the architect. While Mr McCrae confirmed in an email of 6 October 2017 (TB 719) that retention of the study ceiling was affected by the integration of the airconditioning, his advice was that there were other factors that would influence whether it could be retained, including whether construction overhead would have an impact. 5. The DA plans (DA 09 TB 915) indicate that the Study, Guest room, Living and Dining are original rooms, supported by the Section on DA 13 & 15 [Section 6] which shows an existing ceiling in the Study retained. The Construction drawings as at 5 December 2017 refer to the existing ceiling, and lighting, being retained in the Study in a number of drawings, for example "Study Existing ceiling to remain" on drawing A201 (TB 1001), but confirmation being required in others, for example "To confirm on site whether existing ceiling can remain" on drawing A108 (TB 994). 6. The Tribunal is of the view that the documentation for provision of airconditioning was, on a reading of the construction documentation plans as at 5 December 2017, incomplete and inconsistent. While clearly an oversight, and contributing to the complainants' dissatisfaction with the architectural services provided, the Tribunal is not satisfied that the failure to include airconditioning until late in the construction documentation stage of itself impacted on the design or on whether the study ceiling could be retained, and that it is likely to have been contingent on site conditions and investigations by the builder. The late inclusion of the airconditioning, and the uncertainty as to how it was to be incorporated in the construction drawings, was, however, a reflection of the way in which Mr McCrae communicated with the complainants and responded to their instructions. Weekly meeting records 1. The ARB submits that the request for weekly updates was made by the complainants in an email of 24 August 2017 as a result of their concern that there was a "lack of communication" and they did not want the "schedule to slip further". By email on the same day, Mr McCrae responded "yes". That did not occur, and the ARB submits that by accepting and undertaking to provide such reports Mr McCrae created an expectation that this form of communication was reasonable and that it would be complied with, and that failure to do so combined with the other communication failures constitutes a failure to respond with reasonable promptness to a client's reasonable requests for information or other communications concerning the services being provided. 2. The correspondence in which the request was made, and agreed to, is referred to above. The Tribunal agrees with the ARB that while not a requirement of the CAA, having agreed to provide weekly updates, Mr McCrae was required to provide those updates. It is not in dispute that he did not do so. If on reflection Mr McCrae believed that he had agreed to too onerous a schedule on a weekly basis, he should have immediately raised this with the complainants, not failed to deliver. The Tribunal notes, however, that it was not until the detailed email of 23 January 2018 setting out their concerns that the complainants expressed dissatisfaction that the updates were not provided: it is not clear what difference it may have made had he delivered on his agreement to the final three months of Mr McCrae's involvement with the project, by which time the complainants were clearly dissatisfied with the way in which the architectural services were being provided. Dealings with the public 1. The ARB found in its determination that the architects had failed to comply with the requirements under cl 17(1)(c) of the 2012 Code to include their registration numbers in stationery, presentation or construction documents, plans and in publications; and that they had failed to comply with the requirements of cl 17(2)(a) that a nominated architect responsible for the provision of architectural services by an architect corporation ensure that the architect is identified as the nominated architect on stationery and publications used by the corporation in connection with the provision of architectural services. 2. The ARB referred in its submissions of 31 July 2020 to those original findings, however the Tribunal was not taken in the course of the hearing to any of the documents to which the ARB had referred in its original determination. Some of those documents are included in the documents provided by the ARB under s 58 of the ADR Act, but not in the three volume tender bundle. The ARB determination referred to the architects' "website" and "MMJ's architectural services guide", however neither was in evidence. No submission was made by the architects on this issue. 3. The Tribunal has considered the various examples of the letterhead used by MM+J, as used on the fee invoices, and other documents such as the plans, in the documents in evidence. The stationery includes the names and registration numbers of the three architects involved in the practice at the time it traded as MM+J Architects, or the two architects Ms Manfredini and Mr McCrae. The DA plans of March 2017 bear the name "MM+J Architects" but do not identify the nominated architect. The nominated architect is identified as Ms Manfredini on the letterhead of the document Schedule of Variations dated 26 September 2019 annexed to her affidavit of 26 September 2019. Invoice 2 does not include the nominated architects; and Invoice 12 does not include the architects' registration number or identify the nominated architect. 4. In the absence of a comprehensive examination of the documents, both those formally in evidence in the tender bundle and those filed in accordance with s 58 of the ADR Act, and relying on the plans and examples of letterhead on stationery in the joint tender bundle, the Tribunal accepts that the architects have not consistently complied with the obligation under the Code of Conduct to identify the nominated architect for the architectural corporation on "stationery, sign boards and public notices, and in publications, used or placed by the architectural corporation", or with the obligation to include the architect's registration number on "any stationery, presentation or construction documents (including drawings, specifications and schedules), illustrations, sign boards, public notices and architectural plans". Whether conduct as found constitutes a failure to comply with the Code of Conduct 1. As discussed above at [66], the 2012 Code applied to the provision of architectural services before 1 September 2017, when the 2017 Code came into effect. The relevant provisions of the 2012 Code, applicable during the major part of the period of the engagement of the architects on the project, were: Part 2 General practice standards 4 Provision of architectural services generally (1) In providing architectural services, an architect should: (a) act with integrity and reasonable care, and (b) provide the services: (i) in a manner that (at the time the service is provided) is widely accepted in Australia by peer professional opinion as competent professional architectural practice, and (ii) in conformity with any laws applicable to the provision of such services. (2) An architect should provide architectural services to a client: (a) with reasonable promptness, and (b) in accordance with any agreed time program or in a reasonable time as far as is permitted by the provision of instructions to the architect by the client. (3) An architect should withdraw from the provision of any architectural service if the architect reasonably believes in the architect's professional judgment that the provision of the service would require the architect to act: (a) in a manner that the architect considers unethical, or (b) in contravention of the Act, the Regulation or this Code. (4) An architect should not offer to clients, without proper disclosure and the informed consent of the client, architectural services outside the architect's skill, competency or experience or that of other architects under the architect's supervision. (5) An architect should advise a client to obtain specialist advice or service from a suitably qualified person other than an architect (for example, an engineer) concerning an issue arising in connection with the provision of an architectural service if the architect believes that it is in the client's interest to do so. … Part 3 Standards concerning dealings with clients 6 Provision of information to clients and prospective clients (1) An architect should provide sufficient relevant information with reasonable promptness to enable a client or prospective client to make an informed decision in relation to the provision of architectural services. (2) In particular, the architect should take all reasonable steps to: (a) ensure that all information and material provided is truthful, accurate, unambiguous and relevant to the client's interests, and (b) provide a client with information about an architectural service that is sufficient to enable the client to make decisions about the provision of the service and that clearly identifies the implications of various decisions that could be made by the client about the service, and (c) avoid making misleading or false comparisons with architectural services provided by competitors. (3) An architect should take all reasonable steps to ensure that a client is informed of: (a) the decisions required of the client in respect of the architectural service being provided by the architect, and (b) the implications of those decisions for the performance of the service (particularly those implications related to timeliness, cost and changes to the service and any building or building related work consequential to the service). (4) An architect should advise a client on the likelihood of achieving the client's stated objectives having regard to the client's stated budget and time requirements for the architectural service concerned. (5) An architect should not disclose to any person any information agreed as, or understood to be, confidential that is acquired from or provided by a client in the course of the provision of an architectural service by the architect unless authorised to do so by the client in writing or as required by law. (6) An architect should, with reasonable promptness, respond to a client's reasonable requests for information or other communications concerning an architectural service being provided by the architect to the client. 7 Client agreements (1) An architect should enter into a written agreement with the client concerning the provision of an architectural service. (2) The architect should ensure that the written agreement: (a) specifies the scope and nature of, and requirements for, the service to be provided, and (b) specifies the cost of the service to be provided and the arrangement for payment (including, where possible, estimates of disbursements and arrangements for their payment), and (c) specifies the method of reporting to the client on the provision and progress of the service to be provided, and (d) states the registration number of the architect responsible for the service to be provided, and (e) makes provision for arrangements for: (i) obtaining the client's authorisation to proceed with the service described in the agreement, and (ii) obtaining the client's authorisation to change or amend the service described in the agreement and fees arising from such a change or amendment, and (iii) the application of any pre-existing agreement to the provision of other services for the client, and (f) makes provision for the termination of the service by either party, and (g) makes provision for the withdrawal by the architect from the provision of the service in the circumstances referred to in clause 4 (3) of this Code, and (h) makes provision for contacting the architect at the place of business of the architect within normal business hours. (3) The architect should ensure that the cost of architectural services provided to a client: (a) reflects the fee structure specified in such an agreement, and (b) accurately reflects the amount of work done or to be done for the client in the provision of the services (including any variations to the services). (4) The architect should enter into such a written agreement before commencing to provide the architectural service concerned. However, if the service to be provided is urgent, the agreement should be provided to the client within 10 business days of commencing to provide the service. … 14 Advising client of inability to follow client's instructions An architect should, as soon as is reasonably practicable, advise the client in writing of any thing that would, or would be likely to, prevent the client's instructions relating to an architectural service being followed, including the responsibility of an architect to withdraw from the provision of the service under clause 4 (3) of this Code. … 1. The provisions in clauses 4, 6, 7 and 14 of the 2012 Code are largely repeated in the 2017 Code for the period after 1 September 2017, with the substitution of "must" for "should". 2. In relation to that part of the Determination relating to dealings with the public, the ARB relied on cl 17 of the 2017 Code. The equivalent provisions in the 2012 Code were contained in cl 19, which provided: Part 7 Standards concerning the public 19 Dealings with the public (1) When dealing with the public in the course of an architect's professional practice, an architect should ensure that: (a) the architect's qualifications, experience and authorship of any work, document or publication are stated accurately, and (b) the architect is identified clearly and accurately on stationery, sign boards, public notices and in publications, and (c) the architect's registration number is included on any stationery, presentation or construction documents (including drawings, specifications and schedules), illustrations, sign boards, public notices and architectural plans, and in publications, used or placed by the architect in connection with the architect's professional practice, and (d) if the architect claims to have received any award or honour for the provision of architectural services, all persons or bodies that shared in the award or honour are identified accurately in the claim. (2) A nominated architect responsible for the provision of architectural services by an architect corporation or an architect firm should ensure that: (a) he or she is identified clearly and accurately as the nominated architect for the architect corporation or architect firm on stationery, sign boards and public notices, and in publications, used or placed by the architect corporation or architect firm in connection with the provision of architectural services, and (b) his or her registration number is included on any stationery, presentation or construction documents (including drawings, specifications and schedules), illustrations, sign boards, public notices and architectural plans, and in publications, used or placed by the architect corporation or architect firm in connection with the provision of architectural services. (3) When dealing with the public in the course of an architect's professional practice, an architect: (a) should not provide any endorsement of any product or service in connection with the provision of an architectural service in a misleading manner, and (b) should disclose in the material conveying the endorsement whether or not a fee has been received for or relating to that endorsement. 1. The ARB submits that the Tribunal should be satisfied that the conduct of the architects breached the following provisions of the Code of Conduct: 1. Failure to meet the agreed timeframe, in breach of cl 4(2): the complainants had clearly expressed their timetable for completion of the project from the commencement of the engagement, and the timetable was discussed on multiple occasions. In the email of 24 August 2017 the complainants squarely raised the issue; however the slippage continued and was raised in the email of 19 October 2017; and ultimately in January 2018 the tenders had still not been issued despite the repeated assurances given by the architects; 2. Failure to properly advise regarding the requirement to obtain an updated cost report from a QS, in breach of cl 4(5): there was a lack of communication from Mr McCrae regarding the requirement to obtain an updated Cost Report, as evidenced in the communication between Ms Manfredini and the complainants on 27-29 December 2017. While the evidence shows that the architects did raise this requirement with the complainants, simply raising it falls short of what is required by the Code of Conduct, and the matter appears to have been raised more in passing without any detailed explanation being provided to enable the complainants to properly understand what was being suggested and why it was required. While Ms Manfredini recommended that a QS be engaged that was significantly after the issue was first raised; it is apparent from Mr Decker's response identifying confusion and the misunderstanding in relation to the cost estimate appearing to be from March 2017 when it was in fact from May 2016 – and that demonstrates there was a falling short by the architects to sufficiently explain and inform the complainants regarding the costing of the project and the importance of obtaining an updated cost report; and providing the advice as Ms Manfredini did on 28 December 2017 fell short of the architects' professional obligations; 3. Failure to advise the complainants as soon as reasonably practicable that cost increases and delays would prevent the architects from following their instructions, in breach of cl 14: the issue of cost increases was not raised in a meaningful way until Ms Manfredini sent the complainants a "Pre Tender Budget Estimate" setting out the cost increases on 27 December 2017; the scope of the cost of works had increased from $1,159,657 to $1,736,434, and that was the first time that significant increase had been communicated to the complainants. Given the specificity of the complainants' instructions regarding the budget and requested timeframe, that conduct breached cl 14; 4. Failure to sufficiently inform the complainants with reasonable promptness regarding the increased cost of works to enable them to make informed decisions in relation to the provision of architectural services, in breach of cl 6(1) and 6(2): given the substantial discrepancy between the cost estimate provided in March 2017 and that in December 2017 and the architects' awareness that the March 2017 cost estimate was not accurate, the architects should have provided an updated Pre-Tender Budget Estimate to the complainants sooner to enable them to make decisions about the provision of architectural services. As soon as this level of cost was properly conveyed to the complainants they raised the issue of looking to reduce costs; 5. Failure to take reasonable steps to inform the complainants of the decisions required with respect to engaging a QS, and why a QS was required, in breach of cl 6(3): the complainants did not have sufficient information to enable them to make an informed decision about engaging a QS or the reason why a QS was required; Mr Decker asked for more information and clarification on this point and did not receive a satisfactory answer, and the misunderstanding that arose regarding the timing of the work undertaken by the QS came about as a direct result of a lack of communication regarding what that entailed. While Mr McCrae raised this issue in July and August 2017 in a cursory manner the matter was not raised again until December 2017, at which time the complainants made it clear they were confused about the requirement; 6. Failure to sufficiently advise the complainants regarding the likelihood of achieving their objectives regarding time and cost, in breach of cl 6(4): there was a failure to advise the complainants regarding the slippage in the timetable and the ramifications for meeting their objectives in terms of timeframe. The complainants requested updates regarding progress and assurance that milestones would be met, and when the timeframes were not achieved, for example the DA and the tender process, the reasons for the delay or the fact that the deadline could not be met was not sufficiently communicated to the complainants; 7. Failure to respond with reasonable promptness to reasonable requests for information or other communications, in breach of cl 6(6): Mr McCrae agreed in response to the email of 24 August 2017 to the request for weekly updates, and failed to do so. In agreeing to the request Mr McCrae created an expectation that this form of communication was reasonable and that it would be complied with; 8. Failure to ensure the cost of architectural services reflected the fee structure specified in the agreement, in breach of cl 7(3): the budget was first revised in accordance with the contract, however the second variation to the ECW in January 2018 was not agreed to by the complainants; and accordingly there was no basis under the contract for the architects to increase their fees and issue invoices in line with this revision; 9. Failure to include the architects' registration numbers and identify the nominated responsible architects on stationery and architectural plans, in breach of cl 17(1)(c) and 17(2)(a) of the 2017 Code [cl 19(1)(c) and 19(2)(a) of the 2012 Code]. 1. The architects submit that neither Mr McCrae nor Ms Manfredini can be found guilty of unsatisfactory professional conduct. In the alternative, if some conduct would amount to unsatisfactory professional conduct, it could only be the conduct of Mr McCrae, and in any event that would not warrant the imposition of a fine. The only conduct of Ms Manfredini relevant to whether a finding of unsatisfactory professional conduct could be made was the issuing of Invoice 12 and the uplift in fees. If Ms Manfredini was wrong in her interpretation of the CAA, that was not a breach of cl 7 of the Code of Conduct. Any erroneous understanding could only constitute a contractual breach which would be subject to proceedings in another jurisdiction. Findings 1. The Tribunal is satisfied that the architects' failure to recognise that the pattern of reactive responses to client requests in matters of detail throughout 2017, and the consequent loss of focus on the steps required to being the project to the point where the construction documents could go out to tender, together with the failure to provide clear warnings to the complainants that costs were mounting and that they needed to carry out their obligations with respect to the contractors that they were engaging, contributed substantially to the dispute that came to a head once Ms Manfredini issued Invoice 12. 2. The complainants made significant demands on the architects in terms of time and the level of communication and responsiveness expected. Mr McCrae felt he had bent over backwards to meet those demands, and considered that he and the complainants had been in regular communication by email, telephone and site meetings; however the Tribunal is satisfied that he had agreed to formal and informal communication at a level not only beyond that required by the CAA, and but at a level which appeared to be beyond his capacity to manage. His obligation to provide the services specified in the CAA with the skill and professionalism of a reasonably competent architect required him to manage client expectations appropriately; and the Tribunal is not satisfied that he did so. 3. As explained above at [110]-[111], the Tribunal is not persuaded that the failure to meet the timeframe expected by the complainants, namely completion of the project by early 2019, was attributable to delays solely or substantially caused by the architects. The complainants contributed to the delays. However, the Tribunal is satisfied that the architects failed to advise the complainants in appropriate terms how and why their focus on detail was contributing to the slippage in the timetable and impacting their ability to meet the milestone stages. While Mr McCrae responded willingly on multiple occasions to the complainants' requests on matters of detail, for example in relation to the basement works, the fireplace, kitchen benchtops, and steel windows, there was no corresponding advice that in doing so the costs were mounting, and Mr McCrae did not press the need to obtain further estimates of costs after August 2017. The emails do not indicate that Mr McCrae was clear as to the appropriate level of detail required at each stage of the project, for example in responding to requests to change the location of the clothesline shortly before the DA was lodged. While there were some attempts to respond to the complainants' need for updates, Mr McCrae did not provide the weekly updates as he had agreed in August 2017. While as noted above Mr McCrae provided some guidance as to what was required for progress of the project, it is not apparent from the evidence that he clearly reinforced what steps were required to ensure that the construction documentation was prepared for tender. That was a failure to comply with the requirements of cl 4(2), 6(1), (2)(b), and (4) of the 2012 Code and the 2017 Code. 4. The Tribunal is not persuaded that the failure to obtain a QS costing so as to alert the complainants to the increasing costs throughout the development of the construction stage documentation was substantially attributable to default by the architects, rather resistance from the complainants, wanting to limit subsidiary costs generally and pressing compliance by the architects with their agreed arrangements for quotes and invoicing, was a contributing factor. The Tribunal is satisfied, however, that other than the warnings in July and August 2017, the architects failed to impress on the complainants that the design and detail changes they sought were adding to the overall cost of the project, and that they should be prepared for a substantial increase when the documentation went out to tender. If the complainants were resisting obtaining advice from a QS, the architects could and should have provided an updated budget estimate based on their experience and general understanding of the construction industry earlier than that provided by Ms Manfredini in December 2017; or, in the alternative, engaged their own QS which would provide an independent basis consistent with the CAA on which to base their fees. The architects failed to comply with the obligations in cl 6(3), (4) and cl 14 of the 2012 Code and the 2017 Code. 5. The Tribunal finds, for the reasons above at [189] and [198], that the architects did not manage the specialist consultants BDA and NBC consistently with their obligations to advise the client relating to obtaining specialist advice from a suitable person on issues in connection with the provision of architectural services, and to provide sufficient information, including a clear identification of the implications of the decisions that needed to be made. The architects failed to comply with cl 4(5) and 6(2) of the 2012 Code and 2017 Code. 6. The Tribunal is satisfied that in agreeing to the request made in August 2017 for weekly updates, and not providing those updates, Mr McCrae created an expectation that this form of communication in addition to the emails, telephone calls and meetings was reasonable and that it would be complied with. That was a failure to comply with the obligations in cl 6(6) of the 2012 Code and the 2017 Code. 7. The Tribunal is satisfied, for the reasons above at [180], that Invoice 12 did not reflect the fee structure specified in the CAA. That was a failure to comply with cl 7(3) of the 2012 Code and the 2017 Code. 8. The Tribunal is satisfied that the architects failed to comply with the formal requirements for provision of registration numbers and identification of nominated architects, and that was a failure to comply with cl 19(1)(c) and 19(2) of the 2012 Code and cl 17(1)(c) and 17(2) of the 2017 Code. Whether conduct is to be attributed to either or both architects 1. The ARB does not dispute that Mr McCrae and Ms Manfredini performed different roles at different times during the project, and that Mr McCrae was the key person practically involved in the project before 8 December 2017. The ARB submits that both were nominated responsible architects for MM+J, and as such they were equally responsible for the provision of architectural services provided by the firm. The ARB relies on the definition of unsatisfactory professional conduct at s 32(d) of the Architects Act, relating to a failure by an architect to properly supervise the provision of architectural services by an architect firm while the architect is a nominated architect responsible for the provision of those services. Further, Ms Manfredini was copied onto various emails on occasions before her active involvement in the project from 8 December 2017 onwards, including where milestones were discussed or invoices issued such as moving into the Development Application stage and the associated invoice for the Design Development stage (TB 475-477); providing the QS invoice (TB 480); and issuing the invoice for the DA submission (TB 530-532, 552-554). Ms Manfredini was also responsible for the issuing of Invoice 12. 2. The architects submit that Mr McCrae and Ms Manfredini were not jointly involved in the provision of architectural services but rather involved at different times. Mr McCrae was involved until 8 December 2017 and Ms Manfredini from that date on; and the conduct of each should be assessed separately and not jointly. The architects submit that the only conduct engaged in by Ms Manfredini is the issuing of an invoice seeking to "up lift" fees, in accordance with the CAA, based on a revised cost estimate. The only issues to be determined by the Tribunal in relation to her are whether she should or could be the subject of disciplinary proceedings, whether there was an entitlement to up lift fees, and whether an order could be made to refund an amount the subject of the disputed invoice. Discussion and findings 1. It is not in dispute that until December 2017 Mr McCrae was responsible for the provision of architectural services to the complainants, and that Ms Manfredini took over in December 2017. The architects' practice was small, with two principals; and as confirmed by Mr McCrae in his affidavit at [193], the complainants' project was their biggest project at the time. While Mr McCrae and Ms Manfredini were both nominated architects for the firm, and Ms Manfredini was copied in on several email exchanges, there is a clear point at which Ms Manfredini took on management of the project from Mr McCrae, on 8 December 2017. Ms Manfredini's evidence was that she was able to take on the project as she had just completed another large job. There is no indication as to whether any consideration was given to the architects' responsibility, as contemplated in cl 14 of the Code of Conduct, to withdraw from the arrangement if unable to meet the client's instructions. 2. The Tribunal has identified above the significant aspects in which the architects' provision of architectural services on the project fell short of what was required under the CAA and the Code of Conduct. The failure to provide sufficient advice in an appropriate form as to what was needed from the complainants in order to meet their expectations including as to time and as to the likely escalation of costs, and the failure to manage contractors appropriately, occurred while Mr McCrae was the person engaging with the complainants and providing the architectural services contracted for under the CAA. Ms Manfredini issued Invoice 12 in January 2018. The Tribunal concludes that Mr McCrae bears primary responsibility for the breaches of cl 4, 6 and 14 of the Code, and Ms Manfredini for the breach of cl 7(3) of the Code of Conduct. The failure to comply with cl 19 of the 2012 Code and cl 17 of the 2017 Code is evident in documents issued both by Mr McCrae and by Ms Manfredini throughout the project. Whether conduct of either architect was "unsatisfactory professional conduct" 1. The parties agree that given the nature of the complaints made against the architects, the conduct could fall within s 32(b) and/or (d) of the Architects Act. The ARB submits that s 32(d) is particularly relevant in relation to Ms Manfredini's conduct before 8 December 2017, which relates to a failure by an architect to properly supervise the provision of architectural services by an architect firm while the architect is a nominated architect responsible for the provision of those services. 2. A "nominated architect" is defined in s 4 of the Architects Act to be an architect nominated for the time being under s 27 as an architect responsible for the provision of architectural services by an architect corporation or architect firm. Section 27(1) provides that a corporation or firm that provides architectural services may nominate one or more architects to be responsible for the provision of architectural services by the corporation or firm. Section 10 of the Architects Act requires that there must be at least one nominated architect; a large architectural firm would have several. 3. The complaint was made against both Mr McCrae and Ms Manfredini, both nominated architects for MM+J, and both directors of the corporation. The ARB submits that while Mr McCrae and Ms Manfredini performed different roles at different times throughout the project, as they were both nominated responsible architects for MM+J they were equally responsible for the provision of architectural services provided by the firm. While Mr McCrae was the key person practically involved in the project before 8 December 2017, during that time Ms Manfredini was copied into various emails including when milestones were discussed or invoices were issued; she was also responsible for issuing Invoice 12, which failed to include the architect's registration number or identify the nominated architect for MM+J. 4. The Tribunal concludes that each of Mr McCrae and Ms Manfredini breached provisions of the Code of Conduct, in different respects and at different times during the project, as identified at [237]-[238] above. The Tribunal finds that each is on that basis guilty of unsatisfactory professional conduct as defined in para (b) of s 32 of the Architects Act. As nominated architects for the corporation, both Mr McCrae and Ms Manfredini failed to properly supervise the provision of architectural services by the corporation throughout the project, and each is also guilty of unsatisfactory professional conduct as defined in para (d) of s 32 of the Architects Act. Appropriate disciplinary sanction 1. The ARB Determination was to reprimand each of the architects, order a refund of part of the payment for the architectural services that were the subject of the complaint, and to impose a fine on each of $4,400. The ARB submits that the action taken under s 43(4) of the Architects Act was appropriate in the circumstances, submitting that a reprimand and a fine ensures that the standards of the profession are maintained and encompasses an element of general deterrence to others within the profession, and a refund is also appropriate where the architects had no contractual basis to issue the increased invoices. 2. The ARB submits that any penalty ultimately imposed must have regard to the object of the Architects Act, which is to ensure that architects provide services to the public in a professional and competent manner. The penalties need to encompass both an element of general and specific deterrence which is a relevant objective in the imposition of penalties in disciplinary proceedings, and reflect the need to ensure the protection of the public interest. 3. The architects submit that if the Tribunal finds that each of the architects has engaged in the conduct alleged, in all the circumstances it should impose a reprimand. If the Tribunal were to exercise its discretion by imposing a pecuniary penalty it should impose one fine only, and not separate fines for any separate breaches of the Code of Conduct. The architects submit that if there is a finding that there was no basis for the issue of Invoice 12 and Ms Manfredini's interpretation of the CAA was incorrect, as a contractual breach which could not constitute unsatisfactory professional conduct, and on that basis the Tribunal could not order a refund. Discussion and findings 1. On the evidence before the Tribunal, both Mr McCrae and Ms Manfredini are experienced architects, Mr McCrae having been in practice in both commercial and residential architectural firms since 1987, and Ms Manfredini since 1995. Neither has previously been the subject of a complaint or any investigation by the ARB. The work on the project occurred from late 2015 to late 2017, more than three years ago, and there is no indication of any adverse concerns or issues since then. 2. While the findings of the Tribunal confirm that there were significant issues in the performance of the architectural services required under the arrangement with the complainants, the Tribunal has found that the complainants contributed to some of those issues. 3. The complainants raised concerns as to errors and matters that had been overlooked, however they also expressed their satisfaction with the quality of the architects' work: for example, in the email of 28 August 2017 in which he stated concerns about moving timeframes and lack of communication about what was happening at each stage of the process, Mr Decker stated that the complainants "are really happy with the architectural design you have come up with". 4. While the architects ceased work on the project before the documentation was ready to go out to tender, the project had progressed including obtaining development consent, and was close to tender. Invoice 12 was based on the project having reached 70% completion of the Contract Documentation stage, and there is no indication that that was an inaccurate assessment. 5. Section 43(4) of the Architects Act specifies the actions that may be taken if satisfied that the architect is guilty of unsatisfactory professional conduct. The ARB, and thus the Tribunal, could decide to take no action even after such a finding is made. The Tribunal has found that the provision of architectural services fell below what could reasonably be expected of experienced professionals, and considers that to take no action would not be appropriate. 6. The function of a disciplinary order is not to punish, but rather, in the interests of the public, to maintain appropriate standards for the regulation of the profession. The Tribunal considers that the appropriate action in respect of each of the architects under s 43 of the Architects Act is a reprimand, that is, a public statement that conduct has fallen below the standard expected of such a professional; and which sends a message of deterrence to other practitioners and upholds the reputation of the profession. A reprimand does not minimise a serious lapse in professional standards, but has potential for serious adverse implications for any professional: see Psychologists Registration Board of Australia v Coleman (Review and Regulation) [2013] VCAT 738. 7. As noted above, the ARB determined to impose, in addition to a reprimand, a fine and an order for refund. 8. Section 43(4)(g) provides that if the ARB is satisfied that an architect is guilty of unsatisfactory professional conduct it may order the architect to pay a fine of an amount not exceeding 15 penalty units. The parties differed as to the basis on which a fine should be calculated. 9. The architects submitted that only one fine could be imposed and not a fine for each of any separate breaches of the Code of Conduct: any breaches arose out of a single course of conduct, and s 43 of the Architects Act refers to a finding as to relevant conduct in the singular. In the alternative, and assuming the Tribunal finds it can impose more than one fine, the architects submit that the principle of totality is relevant and should be applied to reduce the fine, as the contraventions are part of a single course of conduct. 10. The ARB's position was that a reprimand and a fine for each distinct finding of unsatisfactory professional conduct is appropriate. A failure by an architect to comply with a provision of any code of professional conduct constitutes unsatisfactory professional conduct. The ARB had determined there were four material breaches of provisions of the Code of Conduct, and as such, four discrete occasions of unsatisfactory professional conduct warranting the imposition of four separate penalties. The ARB submits that the architects' submission that the finding as to conduct is one finding because it arose out of a single course of conduct fails to acknowledge the separate and distinct conduct that was determined to amount to individual breaches of the Code of Conduct: while some breaches were related, the failure to comply with cll 17(1) and (2) involved different conduct to the failure to provide sufficient information to enable a client to make an informed decision relating to the provision of architectural services. Further, s 32(b) of the Architects Act merely provides one of the bases for which an architect can be found guilty of unsatisfactory professional conduct, as an architect can fail to comply with multiple subsections of s 32(a) to (j), any and all of which constitute UPC. The ARB does not dispute that it is appropriate for the Tribunal to have regard to the totality principle in determining any penalty. 11. Having regard to the factors above in [246]-[249], the Tribunal does not consider that the circumstances are such as to warrant the imposition of a fine for any of the breaches found of cl 4, 6(1), (2)(b), (3), (4) or (6), 7(3) or 14 of the Code of Conduct. The Tribunal is of the view that to impose a fine in addition to a reprimand would be unduly punitive and inconsistent with the objectives of these disciplinary proceedings. 12. The Tribunal considers that in respect of the breach of cl 19 of the 2012 Code and cl 17 of the 2017 Code, it is appropriate to impose a fine. Both Mr McCrae and Ms Manfredini are nominated architects for the firm, responsible for the provision of architectural services by the firm, and expressly subject to the obligations imposed by cl 19(2) of the 2012 Code and cl 17(2) of the 2017 Code in addition to their obligations as registered architects providing architectural services. The maximum amount of a fine that can be imposed on an architect under s 43(4)(g) is 15 penalty units, or $1,650. Given the detail otherwise provided on the documents before the Tribunal, the Tribunal considers it unlikely that the complainants, or any other member of the public, was or could have been misled as to the identity of the registered architects providing the architectural services. The Tribunal concludes that an appropriate amount of a fine to be imposed on each of the architects is $550. 13. In relation to the order for a refund, the ARB submits that in circumstances in which there was no basis under the CAA for the architects to increase fees under Invoice 12 by reference to the increased cost of works prepared by Ms Manfredini and not agreed to by the complainants, the difference between the actual fees on $1.5m and fees payable on $1.054m should be refunded to the complainants. The ARB submits that while that was an amount of $34,101.10, the refund should be based on the percentage fee for core services as calculated by Ms Manfredini (TB 953), or $24,750. 14. The architects submit that if the Tribunal is of the view it can order a refund, the amount should be calculated to be $9,711.27. That calculation is the difference between Invoice 12: 70% x 3.5% x $1.5m – 21,000 = $15,750.00 and the actual entitlement for 70% x 3.5% x $1.054,234 – 21,000 = $4,828.73, making the difference as a result of the uplift as $10,921.27, less the NDC Consulting invoice ($1,210.00). 15. The power of the ARB, and thus the Tribunal, to order a refund in these proceedings is that conferred by s 43(4)(b) of the Architects Act, which is to order "the withholding or refunding of part or all of the payment for the architectural services that are the subject of the complaint". Whether or not the Tribunal should do so depends on whether such an order is consistent with and appropriate to the circumstances. Whether any refund should be in the amount as ordered by the ARB, or some different amount, depends on an assessment of all the circumstances. 16. As noted above at [47]-[50], the parties were in agreement that the SOPA adjudication determination was not relevant to the present proceedings. On the evidence before the Tribunal, the complainants have paid the amount ordered in that determination, $55,275.00, to the architects. That determination represented an assessment of the respective entitlements of the architects and complainants, including consideration of Invoice 12. While it is no part of the Tribunal's task to consider the basis for that determination, the fact that it was made as part of a formal determination following the parties' attempts to resolve their dispute by negotiation forms part of the broader context of the provision of the architectural services that were the subject of the complaint. That context that also includes the payment by the architects of the disputed NBC invoice. 17. The Tribunal concludes that in all the circumstances, and having regard to the factors summarised at [246]-[249] above, to order a refund of part or all of the payment for the architectural services provided by the architects to the complainants would not serve the purpose of these disciplinary proceedings. Determination of an appropriate amount would, in context of the matters referred to above, not be a straightforward calculation. Further, this is not a case of payments made to an architect for work not done: while not to the complainants' satisfaction, and not strictly in accordance with the terms of the contractual arrangement, the architectural services were provided. Conclusion 1. For the reasons above, the Tribunal finds that the architects engaged in unsatisfactory professional conduct, however on narrower grounds than those on which the ARB based its conclusions in its Determination of 15 May 2019. The Tribunal considers that it is appropriate to take action as permitted by s 43(4) of the Architects Act, but not the action considered appropriate by the ARB, based on its findings. That action is to reprimand each of the architects, and to order each to pay a fine of $550. 2. The conditions of the stay granted on 3 July 2019 included payment of $29,150 into the trust account of the architects' legal representatives, to be reserved for the payment out of any refund to the complainants referred to in an order of the Tribunal or any fines imposed under the Architects Act 2003 and referred to in an order of the Tribunal, and that any part of that sum not required to satisfy an order of the Tribunal will be repaid to the architects. 3. Having regard to the terms on which the stay was granted, the Tribunal consulted the parties as to payment of the fines, and how payment of the balance of the funds currently held in trust should be made to the architects, for formal orders to be made. Orders 1. The Tribunal orders: (1)The decision under review is set aside and the following decision is made in substitution for that decision: 1. Luisa Manfredini is guilty of unsatisfactory professional conduct; 2. Pursuant to s 43(4)(a) of the Architects Act 2003, Luisa Manfredini is reprimanded; 3. Pursuant to s 43(4)(g) of the Architects Act 2003, Luisa Manfredini is ordered to pay a fine of $550; 4. David McCrae is guilty of unsatisfactory professional conduct; 5. Pursuant to 43(4)(a) of the Architects Act 2003, David McCrae is reprimanded; 6. Pursuant to s 43(4)(g) of the Architects Act 2003, David McCrae is ordered to pay a fine of $550. 1. Within 30 days of the publication of these orders, the funds held in trust by the solicitors for the architects are to be paid as follows: 1. NOT FOR PUBLICATION 2. NOT FOR PUBLICATION ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 August 2021