Tute 10 (tara)

Question 1

What does it mean when lawyers say ‘time is at large’ and in what scenario might this specifically arise?

Answer 1

It means that the contractual obligation by the contractor in terms of time non longer applies due to being voided by the client. Therefore the PC date is void, the clock is running and the contractor can complete whenever they want now within reason.

The way to stop ‘time being at large’ is to issue a formal variation for the delay, adjusting the PC date accordingly and therefore officially adjusting the contract so that the time under the contract is no longer voided.

This can situation occur when the client has not delivered the site on time to the contractor and therefore have voided the time obligations of the contractor under the contract as they have obstructed them from starting.

Question 2

What do you need from the builder before you can issue practical completion?

Answer 2

Nicole. You need a bit of paper from the builder saying that it is statutory ready to be occupied. That is different in all states.

You need various compliance certificates.

Question 3

What are the things you will present at the point of practical completion?

Answer 3

Practical completion certificate, final progress payment with half of the security included and defects list because you want to all those defects listed before the client comes in dragging their piano through the place.

Question 4

What ABIC contract should you use if you want staged practical completion?

Answer 4

Use ABIC Major Works

Question 5

How many days notice does the architect have to give for terminating your contract with the client?

Answer 5

30 days notice under CAA

Question 6

What should you do if your client is forceful in wanting you to issue a progress certificate differently to your accessment and you are concerned they may try to take legal action if you refuse?

Answer 6

You should point out to your client that interference with the issuing of a certificate is a breach of contract under most building contracts.
If your client remains obdurate it is time to get your own legal advice and consider the possibility of resigning your commission.

Question 7

Where can you find information on insolvency events under the ABIC contract?

Answer 7

Section S of the ABIC contracts.

Question 8

Under the corporations Act, Can an owner terminate their contract with a contractor if the contractor has gone into Voluntary Administration?

Answer 8

Do not advise your client on whether or not they can terminate the contract or exercise another right under it. Do not take or facilitate any such steps on their behalf. This would include not issuing a final certificate.
Advise them to get legal advice.

However, the changes to the Corps Act do affect the rights of an owner which arise because of an ‘insolvency event’, such as where a contractor’s company enters into voluntary administration and the owner seeks to terminate the contract as a result, this would be unenforceable as a result to the changes to the Corps Act. In such circumstances the owner may be accused of having wrongly terminated the contract and may be exposed to a claim for damages from the contractor.

Question 9

What should you do if an insolvency event occurs?

Answer 9

In the event an ‘insolvency event’ has occurred or may have occurred to a contractor on a contract you are administering, the Institute recommends the following actions:
1. Immediately advise your client that they should get their own legal advice on their rights under the contract.
2 . Do not advise your client on whether or not they can terminate the contract or exercise another right under it. Do not take or facilitate any such steps on their behalf. This would include not issuing a final certificate.
3 . Only take steps under the contract which are recommended by your client’s lawyers.

Tara: Also if the contractor has publicly declared insolvency, advise your client to secure the site themselves ASAP as the site may not have insurance protection anymore as of the announcement.

Acumen, Termination rights and insolvency events

Question 10

Architects and other professionals working in the built environment gain integrity and respectability through demonstrated sound work ethics and by acting in accordance with which policy that identifies the expected behaviour of its members?

Answer 10

Australian Institute of Architects: Code of Professional Conduct

Question 11

What are important forms/methods of communication between the client and architect?

Answer 11

are essential:
- a wri tten client-architect agreement, no ma er how small the project – it must set out the roles and responsibilities of both client and architect
discussion about the client and architect agreement and the roles, responsibilities and procedures of both parties
- special care is required in owner-builder projects, in clearly defining respective roles and responsibilities, as well as the implications of this type of building procurement
- the architect must keep the client fully informed of everything that is happening with the project, and in particular, the architect should promptly report any problems or delays and inform the client frankly of reasons and corrective actions that are necessary – it is far be er to address such issues immediately, than to wait for them to become grounds for grievance or dispute
- the architect must be accessible to the client and respond promptly to all messages and correspondence
the architect must act upon instructions from the client. this may appear self-evident, but too o en the client’s requirements are overlooked or ignored or the client believes that they have been
- the architect should minute or confirm in writing all meetings and discussions held with the client during the project

Question 12

What does acumen recommend for the archtiect to do to meet the clients expectations?

Answer 12

• successfully manage time, quality and the cost of the project, through all stages – failure to exercise this control is at the heart of many client concerns, and in particular, failure to keep a project within stipulated budget limits can have serious financial implications for the client
• make realistic allowances for contingencies/omissions
• make it clear what estimates include, or do not include
• clearly define the roles of client, architect and builder
• provide continuous cost-reporting to the client, together with explanations for over-runs and proposals to adjust/recover costs
• explain the project clearly using drawings, models, computer graphics, etc. to ensure the client understands what is being provided
• establish realistic design expectations – the client must be advised honestly and promptly if their expectations cannot be met because of cost or other limitations

Acumen, Ethics

Question 13

There are a few simple rules that should be followed by all projects regarding fees. These include:

Answer 13

• Always have a client-architect agreement. A le er of engagement alone is rarely sufficient. The relationship between a client and an architect is a business relationship and must be treated as one.
• Invoice clients progressively and do not proceed with further work unless paid promptly. Monthly invoicing is reasonable and probably expected. A client may assume that their approval and payment of the invoice are connected if you invoice at the completion of stages.
• Charge an adequate fee to enable a proper service to be provided. In a climate of strong competition there is a tendency for fees to be reduced below levels at which proper service to clients can be provided. Inadequate fees inevitably result in poor service. Poor, incomplete or ambiguous documentation will result in higher tenders. This premium is usually far more than any fee reduction.
• Understand contractual procedures and the processes of litigation, including the rights of parties, legal tactics, etc.
• We recommend you retain all relevant project records for a period of not less than ten (10) years and longer if possible, a er completion of a project, in case a dispute arises. See also: Document retention

Question 14

How long should you retain documentation on a project?

Answer 14

We recommend you retain all relevant project records for a period of not less than ten (10) years and longer if possible, a fter completion of a project, in case a dispute arises. See also: Document retention

Acumen, Ethics

Question 15

What are the reasons for resigning under Acumen Ethics?

Answer 15

• non-payment of fees
• refusal to pay for increased or protracted services
• refusal to finance site surveys
• refusal to finance the engagement of specialist consultants
• persistent and/or unrealistic requirements regarding budget or time
• persistently bypassing the architect to deal directly with subconsultants, contractor and/or subcontractors

Question 16

What is the sequence of events under Acumen Ethics when resigning from a client contract?

Answer 16

• ensure that you are not in breach of your agreement, or any statutory preconditions to resignation under the relevant architects act
• ensure that you have acted in accordance with the termination clauses in the conditions of engagement, for example:
  a) the timing of your resignation should not prejudice the client
  b) any urgent work that is in hand should be completed before the resignation becomes effective
• ensure that you have carried out the services, up to the time of resignation, to the full and proper extent
• provide a scrupulous and fully detailed claim for your fees, to the date of resignation a er payment put your resignation in writing, using careful, unemotional, temperate language
• if payment is refused seek legal advice about how best to terminate your engagement and obtain payment
• If there is any suggestion, no ma er how unreasonable, that you have failed in your obligation to your client, inform your professional-indemnity insurers immediately.

Question 17

What is the difference between mediation and litigation or arbitration?

Answer 17

Mediation is a confidential process where an independent and neutral third party assists the disputants to negotiate and reach a decision about their dispute.

Arbitration is a formal dispute-resolution process governed by the Commercial Arbitration Act 1984 NSW (or the equivalent in other states) in which two or more parties refer their dispute to an independent third person (the arbitrator) for determination.

In litigation and arbitration the judge or arbitrator imposes a solution upon the parties, whilst in mediation the parties must agree. In litigation or arbitration the judgement or award is immediately enforceable, whilst in mediation, se lement agreements are usually complied with, but if they are not, a party usually has to commence legal proceedings to seek enforcement.

Acumen, Negotiation and dispute resolution

Question 18

What is “discovery” in the process of litigation?

Answer 18

Discovery is a step in litigation where each party must reveal to the other most of the documents relevant to the dispute and answer questions known as ‘interrogatories’.

Acumen, Negotiation and dispute resolution

Question 19

What disputes are not suitable for mediation?

Answer 19

The success of mediation depends upon the capacity and willingness of the parties to se le. If a party cannot se le, such as where an insurer refuses to be bound, or if a party will not se le, such as where there is a high emotional stake, it is best to speed the process straight to a solution imposed by a court or arbitrator. Nevertheless, even in circumstances where the parties are hard headed and the relationship already acrimonious, good results can be achieved.

Acumen, Negotiation and dispute resolution

Question 20

Ethics. What are architects statutory obligations?

Answer 20

architect’s acts

planning and building regulations

architect’s responsibilities under other Commonwealth, state and territory legislation

Question 21

What are the steps to take when resigning from a project with a dent?

Answer 21

make sure you’re not in breach of agreement or any statutory preconditions to resignation under the relevant architects act

acted in accordance with the termination clauses in the conditions of engagement e.g.
timing should not predjudice the client and any urgent work that is in hand should be completed before the resignation becomes effective

carried out the services, up to the time of resignation, to the full and proper extent

provide a scrupulous and fully detailed claim for your fees, to the date of resignation

after payment put your resignation in writing, using careful, unemotional, temperate language

if payment is refused seek legal advice about how best to terminate your engagement and obtain payment

ALERT: If there is any suggestion, no matter how unreasonable, that you have failed in your obligation to your client, inform your professional-indemnity insurers immediately.