The plaintiff hardly attended meetings. [83] ln fact, from the evidence adduced and the record of the Minutes kept, the plaintiff attended only about 3 or 4 meetings out of the 60 meetings held. Further, the plaintiff had issued only a total of 9 Architects Instructions which were copied from the instructions of the defendant to Hasil Construction in respect of the Variation Orders. This, learned counsel for the defendant submitted, was inadequate considering there were 26 Sub-Contractors involved. The plaintiff did not issue any instructions to the NSCs. The defendant therefore has a basis to ask for the plaintiff to revise his fee claim. [84] Whilst the defendant may be unhappy with the services provided whether in terms of response time or quality of the work, the fact remains that he did perform his work as the Architect for the project. Most of the 42 above complaints of the defendant has to do with the expectations not met with respect to the plaintiff's work as a Project Manager. In the circumstance the Project Management fees has to be excised from the overall fees of 10% of the construction costs. [85] The minimum scale fees payable for Project Management is 3.5% under the Rule 25 (3) of the Architects (Scale of Minimum Fees) Rules 2010. [86] I assess that under the circumstances of this case where the plaintiff was not involved in managing the NSCs works or that of the main contractor and not involved in the overall Project Management work, and considering some shortcomings in the discharge of the plaintiff's duties as an Architect, a 4% of the construction costs of RM16,984,190.57 should be deducted from the 10% fees and that gives a sum of RM1,019,051.43 . [87] I reckon this proportion of 60:40 for architectural fees:project management fees is reasonable as architectural services would require more specialized skills and only a registered architect would be able to submit plans for approval of the local authorities. As for Project Management work, a non-architect like Robert Tan who is a Quantity 43 Surveyor and even an Engineer with experience in construction would be able to do it with some experience. [88] It is agreed that RM200,000.00 has been paid and so there is a case balance to be paid of RM819,051.43. This shall carry interest of 5% pa from date of filing i.e. 5 November 2015. Whether the plaintiff as the Architect for the project, had been negligent in the discharge of his professional duties as an Architect [89] The role of an Architect in a construction project has been explained in Sutcliffe v Thackrah [1974] A.C. 727 in the dicta of Lord Reid at p 737 as follows: “It has often been said, I think rightly, that the architect has two different types of function to perform. In many matters he is bound to act on his client's instructions whether he agrees with them or not, but in many other matters requiring professional skill he must form and act on his own opinion. Many matters may arise in the course of the execution of a building contract where a decision has to be made which will affect the amount of money which the contractor gets. Under the RIBA contract many such decisions have to be made by the architect and the parties agree to accept his decisions. For 44 example, he decides whether the contractor should be reimbursed for loss under clause 11 (variation), clause 24 (disturbance), or clause 34 (antiquities), whether he should be allowed extra time (clause 23) or when work ought reasonably to have been completed (clause 22). And, perhaps most important, he has to decide whether work is defective. These decisions will be reflected in the amounts contained in certificates issued by the architect. The building owner and the contractor make their contract on the understanding that in all such matters the architect will act in a fair and unbiased manner, and it must therefore be implicit in the owner's contract with the architect that he shall not only exercise due care and skill but also reach such decisions fairly, holding the balance between his client and the contractor.” (emphasis added) [90] At p. 751 Lord Morris made the following important observations: “He must certainly so act because, there being a contract for work to be done according to the terms of the contract, his function is to see that the contract is carried out. But that does not, without more, make him an arbitrator. His duty is to act fairly when exercising his professional skill in considering whether work done satisfied the 45 contract requirements as to work to be done. If that circumstance constituted him an arbitrator then at almost every stage he would be an arbitrator. His duty to act fairly does not conflict with, but rather is part of, his duty to safeguard and look after the interests of the building owner who has employed him.” (emphasis added) [91] Nearer home in Singapore, the Singapore Court of Appeal explained thus in Sim & Associates v Tan Alfred [1994] 3 SLR (R) 169, what must be done to prove negligence against an architect : “An architect’s liability is not absolute in the sense that he is liable whenever loss results from his acts. It must be shown that he has been negligent in that he has failed to exercise the requisite standard of care. A person alleging negligence against an architect must call evidence as to what constitutes lack of care in the circumstances. As the editors of Keating on Building contracts, infra, indicate at p 313: Unless there are special circumstances, the normal measure of an architect’s skill is that of ordinarily skilled architects. An error of judgment may or may not amount to negligence. If the majority of architects would, under the circumstances, have done the same 46 thing this normally provides a good defence, for ‘a defendant charged with negligence can clear himself if he shows that he acted in accord with general and approved practice’. Where there is no accepted practice, he will not be negligent if he acted in accordance with a practice accepted as proper by a responsible body of architects, even if another body of competent professional opinion considered the practice wrong.” (emphasis added) [92] Further in Jameson v Simon (1899) 1 F (Court of Session) 1211 it was held that the architect’s representative can also be at the site to inspect the works : “It is contended that the architect cannot be constantly at the work, and this is obviously true. But he or someone representing him should undoubtedly see to the principal parts of the work before they are hid from view, and if need be I think he should require a contractor to give notice before an operation is to be done which will prevent his so inspecting an important part of the work as to be able to give his certificates upon knowledge, and not on assumption, as to how work hidden from view had been done.” (emphasis added) 47 [93] The defendant here has made a general allegation at paragraph 17 of the defence that the plaintiff is negligent and says the particulars of the negligence are set out in the counterclaim. The particulars of the negligence are in paragraph 30(a) to (k) of the counterclaim. As the plaintiff is a professional, he is to be judged by the standards of his fellow architects to determine whether or not he was negligent as alleged. [94] I agree with the learned counsel for the plaintiff that the defendant can only discharge the burden of proving negligence against the plaintiff by calling another architect to give evidence. [95] It is in this context that the case of Pantelli Associates Ltd v Corporate City Developments No. 2 Ltd [2010] EWHC 3189, and the observation of Coulson J at [16] and [17] is pertinent in many an allegation of negligence against a professional: “There is a second, separate reason why I am in no doubt that those parts of this Amended Defence and Counterclaim that purport to be allegations of professional negligence should be struck out. That is because, even though the work that is now the subject of these purported allegations was carried out three years ago, there is no expert evidence of any kind to suggest that that work was 48 carried out inadequately, or was in some way below the standard to be expected of an ordinarily competent quantity surveyor. Not only is it simply not good enough to turn a positive contractual obligation into an allegation of professional negligence by adding the words "failing to" to the obligation, but it is also wholly inappropriate to do so in circumstances where there is no expert input to allow CCD to make such an allegation in the first place. Save in cases of solicitors' negligence where the Court of Appeal has said that it is unnecessary (see Brown v Gould & Swayne [1996] 1 PNLR 130) and the sort of exceptional case summarised at paragraph 6-009 – 6-011 of Jackson & Powell, Sixth Edition, which does not arise here, it is standard practice that, where an allegation of professional negligence is to be pleaded, that allegation must be supported (in writing) by a relevant professional with the necessary expertise. That is a matter of common sense: how can it be asserted that act x was something that an ordinary professional would and should not have done, if no professional in the same field had expressed such a view?" (emphasis added) 49 [96] Coulson J’s stand has the support of Bingham LJ’s dissenting judgment in Eckersley & Others v Binnie & Others [1955-95] P.N.L.R 348: “The law requires of a professional man that he live up in practice to the standard of the ordinary skilled man exercising and professing to have his special professional skill. He need not possess the highest expert skill; it is enough if he exercises the ordinary skill of an ordinary competent man exercising his particular art. So much is established by Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 582, which has been applied and approved time without number. No matter what profession it may be, the common law does not impose on those who practise it any liability for damage resulting from what in the result turn out to have been errors of judgment, unless the error was such as no reasonably well-informed and competent member of that profession could have made”. (Saif Ali v Sydney Mitchell & Co. [1980] A.C. 198 at 220D, per Lord Diplock). From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the 50 professional equipment of the ordinary member of his profession. He should not lag behind other ordinarily assiduous and intelligent members of his profession in knowledges of new advances, discoveries and developments in his field. He should have such awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks inherent in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon, combining the qualities of polymath and prophet.” (emphasis added). [97] To have been wrong does not invariably mean that one has been negligent. Whether one has been negligent would depend on the particular circumstances of the case. In Sutcliffe v Thackrah [1974] AC 727 Viscount Simonds said at page 760: 51 “It by no means follows that a professional valuation or opinion was negligently given because it turns out to have been wholly wrong. … Whether or not there has been negligence is, of course, a pure question of fact depending upon the particular circumstances of each case.” The Car Porch / Driveway [98] The defendant alleged that the plaintiff was negligent in designing a car porch that is too short and the defendant had to redo it - paragraph 30(h) of the counterclaim. The defendant illustrated the difference in the length of the porch through an extract of the drawings showing Lots 15, 16, 17, 18 and 19 called “Old Plan (Short Porches)” and a “New Plan (Long Porches)”. The defendant’s complaint is that the short driveway will not accommodate a “luxury” car like a BMW or Mercedes. [99] The defendant had not adduced any expert evidence whether this “shortened” porch or driveway is what an ordinary member of the architectural profession would have done or whether no other architect would have designed such a short porch/driveway - Pantelli Associates Ltd v Corporate City Developments No. 2 Ltd [2010] EWHC 3189 and Eckersley & Others v Binnie & Others [1955-95] P.N.L.R 348. 52 [100] In the absence of a contrary view expressed by another expert, I can accept the reasons why the plaintiff had so designed the porch and driveway in the front, leaving more land at the back. Already the front could take in 3 to 4 cars and so the availability of more space at the back would allow for family functions and gatherings like for barbecue and also for future expansion at the back. These are matters of aesthetic appreciation and even if for some, practicality would have to be sacrificed, that does not necessarily mean that just because the defendant is right, the plaintiff must have been wrong. [101] This is a case where the drawings had been discussed with Robert Tan and he had later signed on them before submission to the local authority for approval. Surely Robert Tan for the defendant and being a Quantity Surveyor himself, would have understood the drawings and plans with a more discerning pair of eyes. He admitted he could have commented on it and suggested suitable changes before submission but he did not. The drawing HL-X/103/09/01 dated 10 March 2009 was approved by MPAJ on 21 July 2007. [102] For the defendant to then later say that it suddenly dawned upon them that the driveways were shorter for these 5 units would appear to be an afterthought. By that time some piling works had been done according 53 to the position of the beams and to now move the front porch backwards to allow for more parking space and correspondingly less space at the back would entail new piling to be done at the specific positions affected which is the extra expenses incurred which the defendant said is the damage they suffer which could have been avoided if the drawings and plans had been properly done. The defendant offered no evidence to show that allowing more space for the back of the house for future use and family barbecues is not what an ordinary architect would have done - Eckersley & Others v Binnie & Others [1955-95] P.N.L.R 348. [103] Even assuming for a moment that the plaintiff were wrong in allowing more space for the back of the house, it does not necessarily mean the plaintiff is negligent – see Viscount Simmonds at 760 in Sutcliffe v Thackrah [1974] AC 727. [104] This is not a case where the defendant had instructed the plaintiff that the driveway or porch for Lots 15 to 19 should be “long”. Neither has the defendant shown that it was a term of the plaintiff’s contract that all houses needed to have driveways or porches to accommodate “luxury” cars. Having approved the drawings for submission in 2009, it smacks of bad faith to now say that the plaintiff had been negligent when the 18 units have long been completed and sold save for one. 54 [105] It appears more like a case where because the plaintiff is suing for his balance fees, the defendant is now resurrecting past unhappiness with the plaintiff in the hope that at least some might go towards reducing the plaintiff's claim; if not to scare the plaintiff to dropping his claim altogether as, if all of the defendant's claims for negligence were allowed, it would more than overwhelm the plaintiff's claim. [106] I agree with learned counsel for the plaintiff that the defendant is estopped from denying it had approved the drawing showing the shorter porch and it would be unconscionable for the defendant to now assert negligence against the plaintiff for something it had approved and signed off. See the case of TL MAC Motorsport Sdn Bhd v Mitsubhisi Motors Malaysia Sdn Bhd [2012] 3 MLJ 78 at [39]. Insufficient Drawings [107] The defendant also contended that the plaintiff did not prepare the drawings for the floor finishes, bathroom details, electrical layout and driveway. This allegation is misconceived as these drawings are set out in Answer 54 of PW2WS and are found at POBOD 6: a. Floor finishes – drawing HL-X/103/09/D07-b at page 237 is the tiling layout for Type B; 55 b. Floor finishes – drawing HL-X/103/09/D07-b at page 238 is the tiling layout for Type C and D; c. Bathroom details – drawing HL-X/103/09/D01-b1 at page 223 is the Toilet Detail 2 for Type B; d. Bathroom details – drawing HL-X/103/09/D01-d2 at page 228 is the Toilet Detail 2 for Type D; e. Electrical layout – drawing HL-X/103/09/E01-b at page 241 is the Electrical Layout for Type B; f. Electrical layout – drawing HL-X/103/09/E01-cd at page 242 is the Electrical Layout for Type C & D; g. Driveway – drawing HL-X/103/09/D07-b at page 237 shows the car porch for Type B; h. Driveway – drawing HL-X/103/09/D07-cd at page 238 shows the car porch for Type C and D; i. Roof fascia – this is shown in the sectional part of the drawings for Type B, C and D Floor Finish. 56 [108] Robert Tan when cross-examined on these drawings on 12 May 2016 had admitted that he would have signed these drawings though he could not recall with clarity. I find that on the balance of probabilities, the defendant had not proved that the above plans and drawings had not been prepared. It is more than probable that the plaintiff had prepared the plans and drawings for the above for how else could the contractor discharge their duties to build as per the plans and drawings? The Roof Fascia [109] The defendant contended that the drawing for roof fascia was not prepared. The roof fascia is the vertical finishing edge connected to the ends of the rafters, trusses or the area where the gutters are attached to the roof. It is said that the primary role of the fascia is to act as a layer between the edge of the roof and the outdoors. [110] The plaintiff did not deny that he did not prepare this. There is merit in the defendant's contention that as the roof fascia was not prepared, the main contractor had to do additional works to supply what was lacking in the roof fascia by way of Variation Orders and the extra works came up to RM99,967.40. The plaintiff did not produce detailed drawings for the roof fascia and had exposed the defendant to a Variation Order claim of 57 RM99,967.40 by the main contractor [DBOD-4 page 334]. This claim was made by the main contractor, Hasil Construction during Site Meeting No.20 on 3 January 2011 [PBOD-6, page 138, Item 2.02]. I agree with learned counsel for the defendant that the Architect should have issued a direction or instruction that this cost was not to be paid to the main contractor if he was of the opinion that this design had incorporated the roof fascia. This, he did not do. [111] The plaintiff did not dispute that this was the sum incurred except to say that no loss was suffered as the contract with the main contractor was a lump sum contract. [112] I do not see how that could be sustained as a defence as water would flow in during rain if there is no roof fascia and to supply what is lacking would of course incur additional costs in the form of Variation Orders. Robert Tan has a point to make when he aptly likened the embarrassing episode to buying a pair of shoes without shoe laces! [113] Where a matter is so obtrusively obvious, there is no need for an expert to be called to refute the fact that the roof fascia has to be provided for in the drawings, otherwise there would be a gap between the roof and the top part of the house where the construction ends. This is an exception 58 to the need to call an expert which is ordinarily required to disprove what is common practice among members, in this case of the architectural profession. Against the backdrop of the plaintiff's admission that he did not prepare the drawings for the roof fascia and the damage suffered which is not unforeseeable in the extra costs in the Variation Orders for the roof fascia, I would hold that the plaintiff had been negligent here and that the damage suffered had been proved. The plaintiff's portion of infrastructure costs [114] As for the claim for the contribution for the infrastructure costs of RM56,966.19 that has to be borne by the plaintiff, this is based on his shareholding in the defendant of 14.12%; the balance being held by Robert Tan and Azizi. [115] I agree with the learned counsel for the defendant that the development being that of a gated and guarded community, the facilities are shared in common. The infrastructure costs are specifically stated for the 20 units of semi detached houses in the plaintiff's Certificate of Payment [DBOD 4 pages 335-336]. [116] I find that the plaintiff has received the benefits of the common infrastructure in terms of earthworks, water reticulation, electrical cabling, 59 street lights, roads access, landscaping, boundary walls, guard house, roads and drains and sewerages. The plaintiff should pay his portion. These are standard utilities and facilities. This claim is not seriously disputed by the plaintiff and I would allow the defendant's claim for this sum. Pronouncement [117] On the balance of probabilities, I had allowed judgment for the plaintiff for his claim for the balance fees due to him of RM819,051.43. This shall carry interest of 5% per annum from date of filing i.e. 5 November 2015 to realization. [118] I had also allowed the defendant to enter judgment on their counterclaim for the sum of RM99,967.40 which had been incurred by them because of the plaintiff's negligence in not providing the drawings for the roof fascia. [119] A further judgment was also entered for the contribution of the plaintiff to the defendant for the infrastructure costs of RM56,966.19. [120] Interest in the counterclaim allowed shall be at 5% per annum from date of the counterclaim from 10 December 2015 to realization. 60 [121] After hearing parties on costs, this Court gave a single costs of RM18,000.00 to be paid by the defendant to the plaintiff and allocator to be paid before extracting the order of costs. Dated: 15 December 2016. Sgd Y.A. LEE SWEE SENG Judge Construction Court High Court Malaya Kuala Lumpur For the Plaintiff : Chew Chang Min Messrs Chew Chang Min For the Defendant : Patrick Samuel The Law Office of Patrick Samuel Date of decision: 25 August 2016