BECHARA v PESKENS [1998] NSWCA 34

BECHARA v PESKENS

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MASON P, STEIN JA and SHEPPARD AJA 24 June 1998

[1998] NSWCA 34

Mason P. Ex tempore

The appellants are builders and the respondent is an architect. Each were experienced in their respective callings.

The appeal arises out of a contractual dispute, which turns essentially upon the terms of an oral contract made between Mr Bechara, one of the appellants, and the respondent.

It was common ground at trial that a contract existed and that it involved the retainer of the architect to prepare design plans and take other necessary steps in relation to a proposed development project, consisting of twenty townhouses at Artarmon that the appellants proposed to develop. The contract was formed on about 8 April 1989. Pursuant to it, the respondent prepared and lodged a development application, including plans, on 19 June 1989. Conditional approval was forthcoming from the Willoughby Council on 14 September 1989. Subsequently a building application was lodged and the development approval in its completed form was finally obtained on 5 October 1989.

On 16 October, the respondent submitted his account, claiming $115,450, made up as to a fee calculated at 4.29% on final cost of $2,500,000, being a sum of $107,250; plus disbursements totalling $8200. The account was a first account and claimed the sum for professional services involving the taking of instructions, carrying out of a survey, submitting report, preparing sketches, plans, development application, building application, working drawings and details.

In the period between April and October 1989 there were a number of meetings between the two principal parties. The architect respondent had found it necessary to prepare an environmental impact study and to address the Willoughby Council in support of the application. The development application had been lodged in the architect's name but on behalf of and on the instructions of the appellants. All these matters were common ground.