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[2026] ACTSC 82
General information, not legal advice.
Supreme Court of the ACT
2026-03-30
McWilliam J
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Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Khan v Filardo Ercan Architects Pty Ltd Citation: [2026] ACTSC 82 Hearing Date: 17 February 2025 Decision Date: 30 March 2026 Before: McWilliam J Decision: (1) The appeal is dismissed. (2) Each party is to pay their own costs. Catchwords: CIVIL LAW – APPEAL – application for leave to appeal from order of the ACT Civil and Administrative Tribunal (Tribunal) – leave to appeal granted – where Tribunal found failure to exercise due care and skill in respect of one matter – whether additional failures should have been found CONSUMER LAW – STATUTORY GUARANTEES – due care and skill guarantee in s 60 of the ACL – whether error in lack of finding of a failure to supply services with due care and skill – whether error in Tribunal’s lack of analysis of cumulative conduct Legislation Cited: ACT Civil and Administrative Tribunal Act 2008 (ACT), ss 6, 8, 16, 18, 22, 86 Civil Law (Wrongs) Act 2002 (ACT), ss 40, 41, 42, 43, 44, 45, 46 sch 4 Civil Liability Act 2002 (NSW), s 5B Civil Liability Act 2003 (Qld) Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law ss 60, 61, 62, 267, 268, 269, 275 Court Procedures Rules 2006 (ACT), rr 5052, 5072 Fair Trading (Australian Consumer Law) Act 1992 (ACT), s 7 Planning Act 2023 (ACT), s 151 Planning and Development Act 2007 (ACT) Cases Cited: Action Paintball v Clarke [2005] NSWCA 170 BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 Bailey v Bottrill [2019] ACTSC 45 Christian Education Ministries – Qld Ltd v Thomson Adsett Pty Ltd [2015] QDC 292 Coulter v Bush; Coulter v Domain Residential Northern Beaches Pty Ltd [2024] NSWSC 267 Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 Hussain v Fahrmand [2016] ACTSC 122 IP Property Botany Street Pty Ltd v Territory Planning Authority [2025] ACTSC 346 Karpik v Carnival plc (The Ruby Princess) [2025] FCAFC 96 Khan v Filardo Ercan Architects Pty Ltd ACN 647 677 263 (Appeal) [2024] ACAT 22 Khan v Filardo Ercan Architects Pty Ltd (Civil Dispute) [2023] ACAT 35 Let’s Go Adventures Pty Ltd v Barrett [2017] NSWCA 243 Manny v Nissen [2022] ACTSC 41 Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 Parties: Nauman Khan (Appellant) Filardo Ercan Architects Pty Ltd (Respondent) Representation: Counsel Self-represented (Appellant) A Herring (Respondent) Solicitors Self-represented (Appellant) North Herring Lawyers (Respondent) File Number: SCA 20 of 2024 Decision Under Appeal: Tribunal: ACT Civil and Administrative Tribunal Before: Presidential Member H Robinson and Senior Member D Hassall Date of Decision: 1 March 2024 Case Title: Khan v Filardo Ercan Architects Pty Ltd Citation: Khan v Filardo Ercan Architects Pty Ltd ACN 647 677 263 (Appeal) [2024] ACAT 22 Tribunal File Number: AA 17 of 2023 McWILLIAM J:
The appellant in this case was the owner of a block of land in Whitlam. He sought to create his ideal home with detailed requirements including sustainability, space for guests, ample storage, and the capacity for outdoor entertaining. He sought out the services of an architect to progress the project and provided a design brief to assist in communicating the vision.
Disappointingly for the appellant, the production of final plans in a form that permitted for straightforward approval through the planning requirements at the time took longer than he had anticipated and did not meet his expectations as set out in the brief. As the design process progressed, mistakes were made by the architect and identified by the appellant. The level of dissatisfaction increased to the point where, upon being told of a further issue with a solar encroachment caused by the second storey at a point where the plans were supposed to be in their final form, the appellant lost confidence in the services being performed and terminated the contract.
The dispute for resolution
The parties are in the Supreme Court following a dispute that was litigated in the ACT Civil and Administrative Tribunal (the Tribunal). The proceeding was commenced by the appellant against his former architect (the respondent). He argued a breach of contract as well as breaches associated with statutory guarantees that a person supplying services to a consumer will render those services with due care and skill and deliver those services in a timely manner. Those guarantees are to be found in ss 60 and 62 of the Australian Consumer Law (ACT), applying the federal counterpart in sch 2 to the Competition and Consumer Act 2010 (Cth) in accordance with s 7 of the Fair Trading (Australian Consumer Law) Act 1992 (ACT) (Fair Trading Act).
The appellant claimed damages under s 267 of the ACL in the sum of $25,000, being the statutory cap in the Tribunal: s 18 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (ACAT Act). This comprised primarily the fees paid to the respondent, fees paid to an engineer engaged for structural drawings, increased construction costs and rent paid during the delay in progressing the drawings, as well as filing fees. He also sought damages for breach of contract on the basis that the respondent had produced a design that did not meet the brief he had given them.
The respondent counterclaimed for an unpaid invoice in the amount of $6,260 said to be owing under the contract between the parties for work completed before the appellant terminated its contract. The Tribunal proceeding dealing with the dispute
At first instance, there were two primary matters said to be indicative of a lack of due care and skill. The first related to the design of a double garage that was not wide enough under the Australian standard for two cars. The second was a solar encroachment (discussed below). There were several other matters which the appellant raised as indicating a general lack of care and skill and delaying the process, and ultimately not delivering the architectural service in a timely fashion or at all insofar as what was produced was a design which the appellant alleged did not meet the brief.
The appellant was unsuccessful before the Tribunal. On 19 June 2023, the Tribunal found in favour of the respondent and ordered that the appellant pay $6,528.81 (inclusive of interest) in relation to the unpaid invoice: Khan v Filardo Ercan Architects Pty Ltd (Civil Dispute) [2023] ACAT 35 (Original Decision).
The appellant appealed that decision before the Tribunal, but it was upheld on 1 March 2024: Khan v Filardo Ercan Architects Pty Ltd ACN 647 677 263 (Appeal) [2024] ACAT 22 (Appeal Decision).
The basis of the appeal to this court
The appellant sought leave to appeal to this court for the purpose of setting aside the orders made in the Tribunal and seeking that the relief he originally sought be granted instead, namely that the respondent pay the appellant $25,000 in compensation.
The appellant’s arguments may be summarised as raising four issues (the grounds are numbered differently on the notice of appeal): (a) Guarantee of due care and skill under s 60 of the ACL (Issue 1): The Appeal panel erred with regard to the finding that it had not been established that the architect failed to act with due care and skill. The design process: (i) created a major solar encroachment which was not identified and communicated to the client at an early stage in the process; and (ii) did not accord with standard practice, including providing plans to the engineer that were not complete and final. (b) Failure to follow instructions (Issue 2): The Appeal Tribunal erred in law and fact in failing to find that the appellant’s “design brief” formed part of the contract, and that error affected the reasoning and findings contained elsewhere in the Appeal Decision. (c) Construction of s 61(4) of the ACL (Issue 3): The Appeal Tribunal erred in finding that s 61(4) of the ACL excluded the appellant’s complaints. (d) Application of s 268(2) of the ACL (Issue 4): The Appeal Tribunal erred in failing to consider the service provided by the respondent from a cumulative perspective.
With the parties’ agreement, the application for leave was heard at the same time as the appeal itself. At the conclusion of that hearing, I granted the appellant leave to appeal the Appeal Decision and reserved judgment on the appeal issues. These reasons will therefore deal firstly, with the decision to grant leave to appeal and secondly, with the appeal itself.
As will be explained, on the appeal, I have found that there were errors in the Tribunal’s reasoning process and that the respondent’s conduct was understandably a cause of grievance for the appellant. Ultimately though, to the extent that there may have been failures to exercise due care and skill, the conduct of the respondent was not sufficient to entitle termination, either individually or cumulatively. The result is that I have reached the same conclusion as the Tribunal, albeit by a different pathway. Accordingly, the appeal will be dismissed.
Decision to grant leave to appeal
Relevant principles
A decision of the Appeal Tribunal can only be appealed to the Supreme Court with the court’s leave: s 86(4) of the ACAT Act. In Bailey v Bottrill [2019] ACTSC 45 at [7]-[8], I set out various principles that generally guide the exercise of the court’s discretion. They are as follows: 7. The discretion to grant leave conferred by s 86 of the ACAT Act is broad, and not susceptible to exhaustive definition: Wiser v Havelock Housing Assn Inc [2014] ACTSC 138 per Burns J at [3]. A number of cases have set out principles to guide the Court in the exercise of its discretion, they include: Pires v DibbsBarker Canberra Pty Ltd [2014] ACTSC 283 at [48]; and Wsol v John James Memorial Hospital [2015] ACTSC 378 at [9]. These cases draw upon Victorian authorities where a similar statutory regime exists for appeals from the Victorian Civil and Administrative Tribunal. These cases include: Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331 at 335-7; and, Myers v Medical Practitioners’ Board of Victoria [2007] VSCA 163; (2007) 18 VR 48 at [28]. 8. The following principles emerge from those authorities to assist the Court in its task: a. The need for leave is to reduce the number of appeals and provide a filter so that only those of some substance or where there is a miscarriage of justice should be able to be heard, though the test should be applied “in a liberal manner, and not begrudgingly”: Perry v Smith [1901] ArgusLawRp 51; (1901) 27 VLR 66 at 68; b. Whether leave should be granted or not must depend upon the justice of the case. c. The application for leave must identify the question, of fact or law, which the applicant for leave claims arises and which is important to the substantive appeal succeeding or failing. d. The applicant need not show error – that is for the appeal itself – but must show that there is a real or significant argument to be put that error exists. e. Where a question has been identified which bears directly on the relief which will be sought on the appeal and once it has been shown that there is sufficient doubt attending the question to justify the grant of leave to appeal, leave will ordinarily be granted if the order below is a final order or final in effect. f. The public importance of any question of fact or law is relevant but not decisive as to the question of whether leave to appeal should be granted. g. It may be relevant to show that the error, if uncorrected, would impose substantial hardship.
In addition, when exercising its discretion, the court must consider the substance of the Tribunal proceedings with proper recognition of the internal review process that is built into the legislative scheme: IP Property Botany Street Pty Ltd v Territory Planning Authority [2025] ACTSC 346 at [91], citing Manny v Nissen [2022] ACTSC 41 at [5].
A grant of leave was appropriate here
At the hearing, the parties agreed that it was appropriate to deal with the application for leave and the appeal itself at the same time.
The appellant sought to overturn both the Tribunal’s orders at first instance and the orders of the Appeal Tribunal. The proper course was to challenge only the Appeal Tribunal decision, rather than include the Original Decision as well: Hussain v Fahrmand [2016] ACTSC 122 at [18]-[20]. That does not mean the Original Decision does not form part of the consideration, particularly as the reasoning of the Appeal Tribunal relied heavily on the reasoning of the Tribunal at first instance. However, the orders founding the appeal were those of the Appeal Tribunal.
The appellant’s application for leave to appeal was filed not later than 28 days after the day the Appeal Tribunal made its decision: r 5072 of the Court Procedures Rules 2006 (ACT) (Rules). There were therefore no issues regarding the timing of the application.
Having heard parties’ submissions on the substantive issues, and applying the above principles, I formed the view that each of the four issues (argued across five grounds) proposed to be raised for consideration had substance on questions of law, for the reasons discussed below. I consequently made orders at the conclusion of the hearing granting the appellant leave to appeal the Appeal Decision.
The appeal – the court’s power
The appeal in this context is on a question of fact or law: s 86(1)(a)(i) of the ACAT Act. Here, the grounds involved both. Rule 5052 of the Rules sets out the court’s powers: 5052 Appeals to Supreme Court—general powers (1) For an appeal to the Supreme Court, the court— (a) has all the powers and duties of the court or tribunal that made the order appealed from; and (b) may draw inferences of fact; and (c) may, on special grounds, receive further evidence about questions of fact, either orally in court, by affidavit or in another way; and (d) may make any of the following orders: (i) an order confirming, amending or setting aside the order of the court or tribunal appealed from; (ii) an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the court or tribunal in accordance with any direction the court considers appropriate; and (e) make any other order that it considers appropriate. …
Before the hearing, orders had been made for the filing of further evidence before the court, which was in the form of a number of emails exchanged between the parties to explain more fulsomely what occurred and when.
The planning context at the time of the respondent’s engagement
It is helpful to understand, at a high level, the planning context that operated at the time the two parties were dealing with each other. When the respondent was engaged by the appellant to design the residential dwelling that was to become his home, the Planning and Development Act 2007 (ACT) was in force. It provided for development approval to be sought through one of three different tracks: the “code” track, “merit” track and “impact” track. The relevant track for the present dispute was the code track. Such applications did not require a merit assessment and upon demonstrating that the development met each of the development controls applying to the relevant site, it was mandatory to approve a development application. For a design where there was a minor noncompliance, the proponent of a development could apply for exemption from that control. The exemption for a minor noncompliance was previously known as a “1N exemption”. This was generally a more time-efficient and less costly option.
That Act has since been repealed and replaced by the Planning Act 2023 (ACT). The same outcome is now achieved through a residential dwelling that complies with all the controls being “exempt development”, and s 151 of the Planning Act providing for the seeking of an exemption assessment.
The reason this aspect of the planning context is useful to know at the outset is because the parties initially agreed to develop plans that could be approved without requiring the development application to be subject to a merit assessment. The appellant’s grievance was that he provided a design brief which was not complied with, and the plans produced by the respondent included what he believed to be a major solar encroachment that would have necessitated a merit assessment of the development application rather than being resolved by a 1N exemption.
The solar encroachment issue arose from a corner of a bedroom on the second floor shown on the west elevation plan. The plans provided to the appellant as being ready for submission for approval showed that the vertical height of the encroachment was up to 93.5cm in height above the solar envelope provided for by the relevant development control. The horizontal width of the encroachment was approximately three metres, although it was only the outer corner of the bedroom that encroached by the said vertical height.
The appellant communicated his dissatisfaction with that encroachment and told the respondent that he would not pay any additional costs if the matter had to go to a full merit assessment because of the encroachment. The respondent did not accept there was any issue but at the same time, revised the plans so that the drawing proposed to be submitted for 1N exemption ultimately showed a vertical encroachment of up to 63.5cm in height above the solar envelope. That was achieved by part of the bedroom in question being “shaved off”.
The relevant development control at the time was the Single Dwelling Housing Development Code. Rule 7A under the heading “Solar building envelope” provided that for a site of this particular size: Any height departure larger than 600mm in the Primary Building Zone…from the solar building envelope will be considered NOT minor (unless the departure is for the side of a parapet wall).
Appeal Tribunal’s findings
It is convenient to set out the material parts of the Appeal Tribunal’s reasons (being paragraphs [15]-[20]) before addressing each issue. The overarching finding was as follows: Appellant’s grounds for appeal 15. In regard to the alleged grounds of appeal above, this Tribunal finds no error by the Original Tribunal. The considerations and conclusions upon fact and law, as articulated at paragraphs [1]-[26] and [27]-[85] of the reasons for decision given by the Original Tribunal, are, in our view, entirely correct ones.
The Appeal Tribunal dealt at [16] with the appellant’s complaint that the issues were not viewed cumulatively, which is the subject of Issues 2 and 4 on appeal (footnote omitted): As to the applicant’s contention that the Original Tribunal failed to take a “holistic” view of the alleged issues and misapplied section 268 of the ACL, that the Original Tribunal erred in finding the “client’s brief” was not objectively clear, and that the Original tribunal erred in applying section 61(4) of the ACL, we consider that there is no gainsaying that what is stated in paragraphs 29 to 38 of those reasons – about the operation of sections 60, 61, 62, 64, 267, 268 and 269 of the ACL in this situation – is correct. Notably, sub-section 61(4) of the ACL clearly provides for the express exclusion of engineers and (relevantly here) architects from the guarantee in section 61 of the ACL. Accordingly, the manner in which the Original Tribunal approached the exclusion in section 61 of the ACL and as to the material before the Original Tribunal respectively, is, in our view, correct. Upon our review in these proceedings, no error [of] fact or law, or of discretion is disclosed calling for intervention by this Tribunal. Likewise, what the Original Tribunal indicated at [63] to [67] as to the issue of “major failure” is correct upon the law and its proper application to the facts of the case before the Original Tribunal.
The discussion in that paragraph as to s 61(4) of the ACL excluding architects from the guarantee in s 61 and agreeing with the Original Decision as to the operation of s 60 is the subject of Issue 3 on the appeal.
The Appeal Tribunal then made findings at [17]-[18] concerning the application of the principles of due care and skill and the complaint concerning the solar encroachment, which are the subject of Issue 1 (footnotes omitted): 17. As to the applicant’s contention that the Original Tribunal erred in applying the principles of due care and skill, erred by “a suggestion” that the involvement of the applicant hampered the delivery of the plans, and erred in considering solar encroachment, this Tribunal considers there is nothing in the reasoning and decision of the Original Tribunal which is inconsistent with the proper application of the law (including the principles in Voli) to the facts of this case. We consider the Original Tribunal did indeed properly consider that the respondent “brought an appropriate level of skill to Mr Khan’s project”. The observations, findings and reasoning of the Original Tribunal, especially as set out at [39] to [67] of its reasons, are compelling and correct in our view. In particular, we agree with the Original Tribunal’s conclusion that “Mr Khan has not met the burden that lies on him to establish a failure to exercise due care with respect to solar encroachment”. We also agree with the reasoning and findings as to the addressing of “sustainability issues” and related matters, as expressed at paragraphs 68 to 82 of the reasons of the Original Tribunal. 18. We note here that it is not unusual for applicants to matters before the Tribunal to not engage an expert to give evidence. We understand that this may, at least in part, be because the costs involved are disproportionate to the claim, and even if successful, the applicant is unable to recover those costs by way of an order of the Tribunal. The ACAT Act specifically provides that the rules of evidence do not apply, and the tribunal may inform itself in any way it considers appropriate in the circumstances and this allows a degree of flexibility, particularly as to the form evidence takes. In recognition of this, the Tribunal attempts to be pragmatic and sensible about the form the evidence before it takes. However, the applicant in a civil matter ultimately bears the onus of proof, and where the questions being put by the applicant go to matters of technical expertise (such as a standard expected of a professional) then discharging that onus may well require expert evidence. In this case, the appellant had none, and hence the Original Tribunal could not find for him on issues such as timeliness, the plot ratio point or the availability of the 1N process.
Issue 1: The guarantee of due care and skill under s 60 ACL
I do not entirely share the Appeal Tribunal’s finding (at [20]) that “the Original Tribunal was correct in its decision, both as to the facts and the law, and as to the application of the law to the facts before it”. I have found error in the law applied to the facts in this case. Ultimately though, as stated above, I have arrived at the same conclusion as the Tribunal. The reasons why I have done so will be explained after addressing the issues raised on appeal. Error of law is established with regard to the guarantee under s 60
The appellant argued before the Appeal Tribunal that the Original Decision misapplied the principles of due care and skill. He particularised that argument on appeal as being that due care and skill required in part: (a) designing a structure without a major solar encroachment; (b) communicating the existence of any encroachment at an early stage; and (c) providing plans to an engineer that were complete and final.
I have said ‘in part’ because the above is to be read in conjunction with the lack of timeliness in the design process, which is the subject of separate consideration on the appeal, and also taking account of an earlier finding in the appellant’s favour by the Tribunal that the double garage door that was designed for the house was not wide enough on the Australian standard for two cars. This is seen from the Tribunal’s reasons at [46]: … In my view this was an oversight, and from a professional firm of architects it was a failure to exercise due care.
The appellant’s argument required first considering the applicable law in terms of due care and skill under the ACL. In that regard, I do have a concern about the intersection between the ACL and the Civil Law (Wrongs) Act 2002 (ACT) (Wrongs Act). The guarantee in question was s 60 of the ACL, which provides: 60 Guarantee as to due care and skill If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.
There was no controversy here that the supply was of a service in trade or commerce to the plaintiff as a consumer. The real question was whether that supply occurred without “due care and skill”. The phrase is not defined in the ACL but has been applied in the same way as the phrase is used at common law in the tort of negligence, being a duty to take reasonable care: Action Paintball v Clarke [2005] NSWCA 170 at [12]; Let’s Go Adventures Pty Ltd v Barrett [2017] NSWCA 243 at [6]. At common law, the calculus articulated by Mason J in Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 147 would apply.
However, it is to be recalled that the ACL has legislative force through the Fair Trading Act in the Territory. That is how the Tribunal’s jurisdiction under s 16 of the ACAT Act is enlivened. In addition, the law of the contract in this case was the law of the Territory. Section 275 of the ACL makes clear that any limits on, or recovery of, liability proceeds by reference to applicable Territory legislation. In the Territory, the relevant statute is the Wrongs Act (sch 4 of which provides for schemes limiting liability).
The Tribunal’s analysis on the s 60 guarantee issue
The Tribunal dealt with the point at which a potential encroachment should have been identified and communicated to the appellant, stating at [49]: It seems to me that the existence of a solar encroachment issue would most likely come to light once the roofline had been determined…[the respondent] consistently argued that a 1N approval would have been forthcoming, despite the apparent inconsistency with the rules. That claim has not been tested. In any case, a number of solutions were available that would reduce or eliminate the solar encroachment, including reducing the size of one bedroom or lowering the house by 300mm. Mr Khan brought the contract to an end before these issues were finally resolved. No doubt he was extremely frustrated by this stage, and [the respondent’s] only explanation why, when the roofline was resolved on 25 February 2022, the solar encroachment issue did not come to notice until six weeks later, on 8 April, is that final details of the shape of the house were still being worked out during March 2022.
The Tribunal proceeded to consider at [50] what the counter-factual may have been, discussing how the “issue could have played out in a number of ways” (cross-references omitted): This issue could have played out in a number of ways, if the contract had continued: [the respondent] might have been vindicated, if the unamended plans succeeded in the 1N application process; or amended plans may have been submitted for approval; or some other issue might have required that the project be submitted to the DA process ([the respondent] seemed to believe that the retaining wall at the edge of the block would have triggered the DA requirement, whereas [the appellant] believed that his solution of parallel retaining walls had avoided this). Since the project was never submitted for approval, these questions must remain unanswered. …
The Tribunal then proceeded to query what the failure to apply due care was: … But what then might have constituted the failure of [the respondent] to apply due care? Was it that the issue was not identified earlier? Or that it was not the subject of advice to [the appellant] as soon as it became apparent? Or that the solutions were offered late and were unacceptable to [the appellant]? I do not think it is reasonable to identify any of these as a failure of due care, although they may have reflected unsatisfactory communication between client and professional or have been symptoms of the breaking down of relations between the parties. …
That led the Tribunal to find that a failure to accord due care had not been established with regard to the solar encroachment, with the conclusion at [51]: I do not believe that [the appellant] has met the burden that lies on him to establish a failure to exercise due care with respect to the solar encroachment. I do not believe I have the certainty that I would need to arrive at such a conclusion.
Here, the Tribunal’s analysis at first instance was not conducted by reference to the Wrongs Act, in that there was no identification of the nature of the risk of economic harm and then consideration of the precautionary measures that a reasonable person in the position of the respondent should have taken in response to the risk. Indeed, some of the confusion experienced by the Tribunal as to what constituted the failure to apply due care may have been alleviated by commencing with identification of the nature of the risk of economic loss and considering the reasonableness of the measures identified by the appellant as being the response to the risk required of a reasonably skilled architect in the position and with the knowledge of the facts that the respondent had.
Expert evidence was not necessarily required
There was also a troubling aspect of the reasoning concerning the nature of evidence required to prove a fact before the Tribunal. The appellant challenged the finding that he had not met the burden of proof because of a lack of expert evidence of professional standards. The substance of his argument was that the evidence he did have should have been taken into account, and that this was sufficient to prove the failure to comply with the guarantee. He relied on: (a) the communications from the engineer engaged on the project (who was a professional with relevant expertise); (b) the ACT planning standards; and (c) concessions made by the respondent (also a professional with relevant expertise) during the hearing that the provision of plans that had not been approved to an engineer was not standard practice.
The appellant submitted that the Appeal Tribunal and the Tribunal did not offer any basis for rejecting the evidence of the engineer and the concession of the respondent. That requires consideration of what the basis for rejecting the evidence was. Part of the reason was the lack of expert evidence. The Tribunal’s concern is set out at [38]: One way in which I am hampered in coming to a decision in this matter is that neither party has called any expert evidence. [The appellant] has referred to other projects, and provided materials prepared in the context of some of those projects, and he reports on conversations or exchanges he has had with builders or other architects. But all of the evidence of this kind that he has put forward is at best hearsay; none of the people he has spoken to has been called as a witness; none of the evidence has been tested in cross-examination; no information is available on the qualifications of those who have provided comment to [the appellant]; and no detail is available to me to help decide whether other house projects with which [the appellant] compares his own are genuinely comparable. [The respondent] similarly has chosen not to call any expert witnesses to support their case that the project was handled professionally and in accordance with industry standards. Yet a number of the judgments I am called on to make are of the kind that would be easier if I were able to draw on expert opinion evidence.
It was in that context that the Appeal Tribunal discussed the lack of expert evidence (at [18] of the Appeal Decision, set out above at [32]). To the extent that the Appeal Tribunal referred to the course taken by other applicants and the provisions of the ACAT Act allowing flexibility, that aspect of the Tribunal’s reasoning is entirely orthodox. The cause for concern arises from the Appeal Tribunal’s reasoning that followed in the second half of [18] (emphasis added): … However, the applicant in a civil matter ultimately bears the onus of proof, and where the questions being put by the applicant go to matters of technical expertise (such as a standard expected of a professional) then discharging that onus may well require expert evidence. In this case, the appellant had none, and hence the Original Tribunal could not find for him on issues such as timeliness, the plot ratio point or the availability of the 1N process.
Issue 2: Failure to follow instructions (the design brief)
The critical question on this issue was whether the respondent breached its contract with the appellant in providing a design that did not meet the requirements of the brief.
There were two aspects to resolving that issue: (a) whether there was a contractual obligation to meet the requirements of the brief; and (b) whether the design provided failed to meet the requirements of the brief.
I have concluded that there was no breach of contract but for different reasons to those of the Tribunal. What I have found is as follows: (a) The wording of the contract contained an express term that the design be based on the client’s brief. (b) By that wording, the brief was incorporated into the contract as instructions to which the respondent was required to have regard in developing the design. (c) However, the only obligation under the contract was to base the design on the appellant’s brief, not to ensure that the design complied with every aspect of the instructions. There was no express or implied contractual obligation to achieve each of the matters specified in the design brief. (d) It is a question of fact and degree as to whether the term of the contract was breached. To the extent that the end design did not reflect parts of the design brief, because of the breadth of language used and the iterative nature of the design process, the respondent did not breach the contractual obligation here.
The contractual documents
The fee proposal letter provided by the respondent which accompanied the fee agreement signed by the appellant included four stages in the scope of work. The first was the preparation of “Preliminary Sketch Plans”, which included: Prepare concept design based on brief confirmed by client.
The contract between the appellant and respondent (the fee agreement) states that the fees payable for the project include the costs for preliminary sketch plans.
The appellant’s brief commenced with an overarching objective: Project Objective: To design a good quality and sustainable house that takes into account, and benefits from, the block’s location, its qualities and characteristics, and the surrounding environment, while achieving maximum utility through the use of cleverly designed living spaces.
It then set out 26 itemised design requirements. Without setting out the entire list, it included requirements such as: • The incorporation of best practice principles for environmentally sustainable homes as outlined in the Australian Government website: https//www.yourhome.gov.au • Form is important but should not compromise function • Double storey, separate living zones for family and guests/entertainment, and ‘cosy’ areas • Laundry with provision for at least two washing machines and a dryer • Solar Panels • Ceiling fans • Indoor courtyard, if feasible • Use of recessed sections in walls with lighting for paintings and decoration items • Ample storage areas • At least 46 square metres of garage space • Outdoor covered area, to allow for storage of items like bicycles • Entry points to the house to be designed to allow for easy movement of large bulky items. This would include ensuring the staircase to the first floor is designed while keeping this requirement in mind. • Wide single front entry door (widest possible) • All-weather outdoor entertainment area e.g. in the form of a pergola with warm lights imitating the atmosphere of Lonsdale Street in Braddon on a Summer night • Kitchen to be placed in a well-ventilated area
As part of the design brief, the appellant included a plan for a two-storey house that he wished to adapt.
The appellant’s complaint
The appellant’s primary argument was that the brief provided to the architect constituted his design instructions. The appellant argued that the respondent was contractually obliged to meet the design brief he provided and that the respondent’s design did not do that in a number of fundamental respects. The submissions of the appellant to the Tribunal revealed that there may have been a complete mismatch in expectations. The appellant’s intention was that the house be designed according to passive house principles, with use of thermal mass in the design, minimal heating and cooling through insulation, airtightness, appropriate window and door design with optimal glazing, ventilation systems with heat recovery and elimination of thermal bridges.
The house that was designed was fundamentally not designed in accordance with passive house principles. In part, that was because the appellant had supplied a design that he wished to copy and adapt. However, the appellant’s complaint was that none of the environmentally sustainable principles were even discussed with him and when he asked for information as to how the sustainability principles had been incorporated, he was met with comments about orientation of living areas to the north, solar panels on the roof, selecting energy efficient appliances, consulting a landscaper about planting trees for shade in summer and ceiling fans being a great choice for moving air around. The Tribunal’s finding
The Tribunal considered the appellant’s argument by reference to the law concerning implied contractual terms, as to which see BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 at [40], and the requirements that the terms be reasonable, necessary for business efficacy, obvious, and capable of clear expression, without being inconsistent with any express contractual term.
The Tribunal contemplated a notional term along the lines of “the architects will complete a design according to the brief supplied by the client” and among other considerations, found that the design brief could not be implied as a term of the contract because the contents of the brief itself was not capable of clear expression.
The Tribunal’s summary of its conclusions was as follows: In summary, then, it is not clear that the brief provides a satisfactory basis for an implied term of the contract between the parties; even if were taken as an implied term, to the extent that is possible, I do not think that I could conclude that FEA was in breach; and even if there were a breach no satisfactory remedy seems to be available.
That reasoning was confirmed by the Appeal Tribunal.
The design brief was part of the contract
There were two errors with the Tribunal’s legal analysis. The first is that there was an express term dealing with the role of the design brief. As the appellant submitted, the issue was not one of whether a separate term should be implied into the contract. It was a question of construing the express term that was included to discern its meaning, and whether that term reflected the objective intention of the parties that each of the matters included in the design brief were to be achieved in the final design.
The second is that even if the implied term analysis was adopted, the Tribunal’s consideration of the requirement for certainty or clear expression was misconceived insofar as it was directed to determining whether the contents of the brief itself were sufficiently certain. That was a matter relevant to breach, not the certainty of expression of the term to be implied in the first place.
The appellant argued that the law that should have applied was that contained in a case that he considered to be factually similar, namely Christian Education Ministries – Qld Ltd v Thomson Adsett Pty Ltd [2015] QDC 292. In that case, Samios DCJ expressly considered the equivalent provisions of the Civil Liability Act 2003 (Qld) operating in Queensland and found a breach of duty of an architect to clarify instructions, follow the client’s instruction and to clearly communicate with the client.
Although the case did not deal with the equivalent of s 60 of the ACL, to the extent that the appellant was seeking to demonstrate that an architect does have a duty to clarify and follow a client’s instructions and to communicate with the client, I have no difficulty in concluding that this came within a guarantee of due care and skill as well as a contractual duty. As noted by the Tribunal at [42] of its reasons, the parties accepted that the services to be delivered by the respondent extended to the requirements set out in the appellant’s brief. However, the fact that there was a general duty to act in accordance with instructions does not fully resolve the issue here.
The obligation under the contract was to base the preliminary design on the client’s brief. That does not amount to an obligation to achieve each of the listed items in the final design. This was an iterative process, shaped by the design controls and critically, by the design brief including a floor plan to be adapted. The indicators that the contents of the design brief were objectively intended to be guiding parameters but not a list of individual contractual obligations are: (a) The express words of the contract, which state that the concept was to be “based on” the brief. (b) The expressed purpose of the brief, which was to generate a preliminary sketch plan (with the client then having input throughout the subsequent design process). (c) The nature of the design brief itself, which included general or aspirational ideas capable of being implemented in different ways. (d) The design brief included competing objectives which would require reconciliation through the design development process. For example, as pointed out by the respondent, the application of passive design principles would have seen a smaller house design on the site.
The nature of the brief and the design process means that there was no contractual breach here
When comparing the plans in the form as at termination of the contract against the design brief, many of the features of the design brief were incorporated. The design itself was substantially similar to the floor plan that the appellant had provided. It had evolved due to planning controls, but it was fairly based on the instructed design. The separate guest areas, sizeable garage, ample storage areas, central staircase, undercover area, laundry with space for two washing machines and solar panels are all part of the design that was intended to be submitted for approval.
Further, some of the sustainability principles that were important to the appellant were able to be addressed through glazing, insulation, heating choices and building materials that reduced thermal bridging. From the evidence before the court, the development of the plans had not got to that point yet. For example, there was not yet a Nationwide House Energy Rating Scheme (or NatHERS) certificate which would have taken into account those matters. It is true that the house that was designed did not incorporate all the features that would have been required for a passive design house, assuming those features to be those set out by the appellant. However, the contractual obligation was to base the design on sustainability principles, not to achieve passive house certification.
The appellant’s disappointment is understandable, as there does appear to have been miscommunication about what was being designed and a lack of discussion as to whether the incorporation of sustainability principles was to be achieved in preference to the design that had been presented by the appellant for adaptation, or rather only insofar as they were consistent with other preferences as to the height, bulk and scale of the house. However, the discrepancy between what was instructed and what was designed was not so egregious as to constitute a breach of the obligation to act according to instructions or base the design on the client’s instructions.
Issue 3: Construction of s 61(4) of the ACL
This issue concerns a discrete matter of statutory construction. The applicable guarantee is s 61 of the ACL, the relevant parts of which are as follows: 61 Guarantees as to fitness for a particular purpose etc. (1) If: (a) a person (the supplier) supplies, in trade or commerce, services to a consumer; and (b) the consumer, expressly or by implication, makes known to the supplier any particular purpose for which the services are being acquired by the consumer; there is a guarantee that the services, and any product resulting from the services, will be reasonably fit for that purpose. (2) If: (a) a person (the supplier) supplies, in trade or commerce, services to a consumer; and (b) the consumer makes known, expressly or by implication, to: (i) the supplier; or (ii) a person by whom any prior negotiations or arrangements in relation to the acquisition of the services were conducted or made; the result that the consumer wishes the services to achieve; there is a guarantee that the services, and any product resulting from the services, will be of such a nature, and quality, state or condition, that they might reasonably be expected to achieve that result. (3) This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier. (4) This section does not apply to a supply of services of a professional nature by a qualified architect or engineer.
The appellant did not make a claim under this section. He could not because of the words of s 61(4).
However, the appellant did claim under s 60 of the ACL that the respondent was either unable, slow or unwilling to meet the specifics of the brief. The Tribunal found at [37]: … these complaints are excluded from the guarantees in the ACL by subsection 61(4), and in my view it is plainly not the intention that section 60 be interpreted broadly so as to allow inclusion of failures that section 61(4) sets out to exclude.
The reasons of the Appeal Tribunal again simply agreed with the Tribunal’s construction of the ACL.
Sections 60 and 61 are directed to different things. Although there might be a perceived overlap, there are different tests deriving from different origins in the common law. The fact that s 61(4) of the ACL excludes architects from a guarantee as to fitness for purpose does not mean that in providing the service itself, the architect is free to depart from exercising due care and skill. The provisions of the ACL evince a deliberate intention to exclude architects from the operation of the fitness for purpose guarantee only.
Here, the complaint was the failure to design in accordance with a client’s specific instructions. I accept the line between the two might be fine, but if proven, that was capable of falling within the guarantee of due care and skill, independently of whether the appellant’s instructions also identified a purpose and the end product was not reasonably fit for that purpose.
Issue 4: Application of s 268(2) of the ACL
The appellant’s final complaint was that a holistic approach was not taken to determining whether the guarantees were breached. The Tribunal considered the various complaints raised individually. Having taken that approach, the Tribunal only considered the designing of the garage door was a failure to exercise due care and skill, found that this was not a “major failure” as defined in s 268 of the ACL, and otherwise dismissed the claim for damages under s 267.
The appellant argued that there were many mistakes made over time together with significant delay, and that the Tribunal should have found this demonstrated a lack of due care and skill overall, contributing to a build-up of frustration on the part of the appellant and an ultimate lawful termination of the services. The respondent failed to communicate the solar encroachment issue to the appellant, follow the standard processes, or take necessary steps to mitigate the potential harm to the appellant.
I agree it is appropriate to view the lack of due care and skill holistically, but I was not persuaded that the Tribunal did not take that approach, as will be seen from its reasons below. The Tribunal did not take the same view of the respondent’s conduct as mistakes, due to the creative nature of the process. In any event, on what is effectively a rehearing, I have considered the evidence for myself. When each of the matters raised by the appellant is viewed holistically or cumulatively, the conduct as a whole did not establish a failure to provide the services with due care and skill.
The conduct said to constitute failures or mistakes
The mistakes that were identified in the appellant’s original application to the Tribunal were as follows: (a) The first draft of the plans did not follow the design requirements. As an example, it did not include the type of alfresco area that the appellant had requested, in that the design lacked an enclosed outdoor BBQ and kitchen area with a solid roof. It took three months for the respondent to meet the appellant’s original request. (b) The early drafts included kitchen and living areas at the front of a west facing block, which the appellant said went against any sustainability principles. (c) The solar encroachment and the garage door issues were each substantive mistakes compounded by being discovered late in the design process and after the plans had been provided to the engineer for technical drawings.
The Tribunal referred (at [52]) to five other complaints. I have summarised these as follows: (a) an early plan in October 2021 included a kitchen that was eight metres long, which the appellant regarded as out of proportion; (b) there was an internal staircase proposed that was two metres wide, which the appellant regarded as impractical; (c) there was an absence of walk-in robes in the master and guest bedrooms; (d) the appellant was given inconsistent or wrong information with regard to whether the plot ratio had been maximised; (e) there was an issue with retaining walls and a difference of opinion between the appellant and the respondent as to how to achieve a level block.
The appellant was also concerned with the delay (as a separate matter constituting a failure of the timeliness guarantee and as a matter contributing to the overall lack of due care and skill). The appellant provided the project brief on 12 September 2021. The respondent worked on a couple of options over the course of the next month. An indicative time frame was then given of two to three weeks to further develop the design, and then seven to nine weeks to work up the documentation. The respondent took eight months to deliver plans that the appellant considered should have taken six to eight weeks, based on other design projects he put before the Tribunal.
The appellant claims that all of this should have been taken into account when considering his claim for damages under ss 267 and 268 of the ACL.
Statutory remedies available
Before dealing with the Tribunal’s reasons, the complaint requires some understanding of the remedies available under the ACL. The appellant terminated the contract and the primary relief he sought was a refund of the amounts he had paid to the respondent. The only way he could obtain that relief is if he was able to terminate the contract as provided for by s 267 of the ACL.
Section 267(3) provides that where there has been a “major failure” by a service provider to comply with a consumer guarantee, the consumer may: (a) terminate the contract for the supply of the services; or (b) by action against the supplier, recover compensation for any reduction in the value of the services below the price paid or payable by the consumer for the services.
Relevant to the appellant’s complaint, a failure to comply with a guarantee is a major failure if: (a) the services would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of the failure (s 268(1)(a)); or (b) the failure is one of two or more failures to comply with a statutory guarantee, and the services would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of those failures, taken as a whole (s 268(2)).
Alternatively, if there has not been a major failure, the consumer may require the supplier to remedy the failure or in default of that, to either have the failure remedied and recover the reasonable costs of doing so or terminate the contract: s 267(2) of the ACL.
If those circumstances were met, upon termination the appellant was entitled to recover a refund against the respondent for any money paid for the services: s 269 of the ACL.
Thus, the appellant’s claim depended on the issues identified being not only accepted as failures of the guarantees under s 60 and 62 of the ACL, but of those failures being of sufficient magnitude as to make the remedy of termination available.
Otherwise, the appellant sought damages for the fees he paid to the engineer before identifying that the design required amendment, as well as the rent he paid and increased construction costs which he said were attributable to the delay in commencing construction. In that regard, a consumer may recover damages for any loss or damage suffered by the consumer because of the supplier’s failure to comply with the guarantee “if it was reasonably foreseeable that the consumer would suffer such loss or damage as a result of the failure”: s 267(4) and (5) of the ACL. Section 267(4) is the catch-all general damages claim, and its availability is unaffected by whether a failure to comply with a guarantee is minor or major.
I note that the Tribunal referred at [66] to the remedies as falling under s 237 of the ACL. Although that section does deal with compensation, I have taken the reference to it to be a typographical error, as a failure to comply with a consumer guarantee is not currently a contravention of the ACL. From the context of its reasoning discussing the point, the Tribunal manifestly intended to refer to s 267 of the ACL.
The Tribunal’s reasons
The reasons that are the subject of this criticism followed the Tribunal dealing first with two of the alleged failures individually (the double garage and solar encroachment). The Tribunal had accepted there was a breach in respect of the garage and found that the burden to establish a failure to exercise due care and skill had not been discharged at [51] (see [51] above).
The Tribunal then addressed the five other complaints (set out above at [54]-[55]) of the Original Decision: 53. I do not think that any of these additional examples assist Mr Khan’s case. As FEA pointed out, the 8-metre kitchen and 2-metre-wide stair were both included in conceptual sketches at an early stage of the process, when possible, layouts were being explored. The sketches in question were drawn by hand, and although they were to scale, they were clearly at the conceptual end of the process, and details of the kind attacked by Mr Khan do not, in my view, show any absence of due care, as it was to be expected that plans would be substantially amended and reworked from this point. The walk-in robes, similarly, were omitted at an early iteration of the plans, and in any case were not explicitly set out in the brief – rather, they were to be inferred from the inclusion of those features in the Western Australian house offered as a good start for the process. Whether or not FEA made an error when advising Mr Khan about the plot ratio is not a point on which I can reach a conclusion; the point was not been made with sufficient particularity and supporting evidence to allow me to reach a finding. As for the retaining wall, the evidence that was advanced on that matter is incomplete; it was never discovered whether the retaining wall solutions of either Mr Khan or FEA would receive approval through the 1N process, and I am unable to reach any conclusion about whose judgment was right. 54. The garage door therefore is the only failure against the guarantee of due care and skill that Mr Khan has identified
On the delay, the Tribunal explained (at [55]) that expert evidence would have been particularly useful on that issue. There was “no useful evidence” as to what was a reasonable time for an architect to design a house of the size and complexity of the appellant’s project. The Tribunal noted (at [59]) the Canberra lockdown period and intervention of Christmas and New Year and that there was a great deal of back and forth between the parties before the design was finalised to the appellant’s satisfaction. The Tribunal was unable to conclude that there was a failure to meet the guarantee of timeliness in s 62 of the ACL, stating at [62]: … While the project does seem to have a timescale that is on the long side, I do not have evidence about an industry standard or common industry practice for such a timeline, or expert evidence of other kinds that would allow me to decide that the project did not meet the reasonable timeliness standard set by the ACL guarantee.
The Tribunal later concluded at [67]: In the present matter, the only failure I have found is that the garage door was too narrow. That failure has already been remedied. I cannot see that any consequential losses flowed from that failure. Mr Khan has identified a significant quantum of losses, including the payments made under the contract to FEA, moneys paid to the engineer for technical drawings, rent paid for the period beyond the time that plans should have been complete, according to him, and the increase in construction costs occasioned, he says, by the delay in completion. None of these costs flowed from the failure to put the correct size garage door in the plans. It follows that I do not propose to make any orders in respect of that failure.
Reconsidering the matter does not alter the outcome
On the question of delay individually and the timeliness guarantee, I have assumed in the appellant’s favour that the plans he required could be designed and finalised in two to three months. Given the time at which the engagement occurred, the lockdown period in Canberra and the Christmas holiday period, the period in those circumstances may have been four months. However, the fact that a design may be capable of being provided in a certain period of time does not establish the benchmark for reasonableness. This design took eight months and the circumstances in which the delay occurred were a result of an iterative process (discussed separately next). This was not a case where the respondent did nothing for months. In those circumstances, I am not persuaded that the eight-month period was outside the realm of reasonableness for the design of a two-storey residential dwelling.
On the question of whether there was a failure to exercise due care and skill, it is appropriate to first identify the risk. If due care and skill were not taken, the appellant was at risk of suffering economic loss, identified in the following potential ways: (a) wasted architecture fees if the failure was such as to make the entire design unable to be approved or used; (b) additional expense if a full merit assessment process of a development application were required, rather than proceeding on a code compliant pathway; (c) wasted engineering fees; (d) increased building costs and additional payment of rent (to the extent that delay also formed part of this consideration).
I have assumed that these might all be seen as foreseeable and not insignificant economic risks. In terms of what was known or ought to have been appreciated by a reasonably skilled architect in the position of the respondent, part of the information provided was that the appellant had a time pressure, in that he wished to commence construction within six months. He also had a number of features that he desired the house to have. The terms of the contract itself are also an important part of the context against which reasonable precautions are to be considered.
Although he did not put it in the precise terms of the Wrongs Act, the precautions which the appellant identified as being reasonable to take to mitigate the risk were: (a) design in a timely manner; (b) follow the client’s instructions so as to minimise revision of plans; (c) know and comply with the planning or development controls; and (d) follow the standard design process by ensuring that plans are final before sharing them with other professionals.
As I have found in the reasons above addressing each of the issues: (a) The respondent did not act with swiftness, but nor was the timing such as to be untimely or unreasonable. (b) The respondent broadly acted in accordance with the appellant’s instructions. Again, this took time. There were numerous revisions of the design and the plans, and the appellant had a firm view about the appropriateness of what was being proposed and how it measured against the vision in his head. However, based partly on life experience and also on common sense drawn from the nature of the contract (preliminary sketches leading to a final design), the architectural process was inherently one of conceptual design followed by revision and refinement. The different iterations that have been described may also be viewed as falling within the bounds of reasonable creativity, the nature of which is heavily impacted by different tastes and preferences. For example, the appellant did not like the initial width of the staircase proposed, but as seen from the items listed at [70] above, easy movement of large bulky items up the staircase was part of the design brief. That the appellant did not like what was being proposed does not mean that what was being proposed was unreasonable. (c) In terms of compliance with the development controls, there were features that were overlooked and required further revision. Knowledge and compliance with the development controls and building standards was something which the Tribunal found breached the guarantee of due care and skill and that finding was not disturbed on appeal. In addition, the solar encroachment was something identified late in the design process, but it was not something that the respondent forgot about. As the Tribunal found, the solar envelope could really only be considered once the floor plan and design of the roof was settled. The real difficulty from the appellant’s perspective was the consequence of a non-compliance for the approval process. That is discussed separately in a moment. The fact that the final design included a solar encroachment of the size depicted on the plans was not by itself a failure to exercise due care and skill. (d) The respondent admitted providing the plans to the engineer when the design still required alterations (due to the non-compliant garage door and the need to address the solar encroachment prior to submitting the plans for approval, either by obtaining an exemption or pursuing the merit of the development). Further, it was accepted that this was not a standard practice. However, that the respondent did not follow a typical practice is not, of itself, indicative of a failure to exercise due care and skill. The reasonableness of the conduct is to be judged in light of the facts known to a person in the respondent’s position at the time. The appellant had made the respondent aware of the time pressure and the plans had to be provided to the engineer in order for a quote to be provided. That combination of circumstances means that the respondent’s conduct in providing the design plans prior to obtaining stamped plans – regardless of whether that was achieved through either a certifier under the code track or a formal development application under the merit track – was not conduct that failed to exercise due care and skill.
Costs
Orders
Associate: Date:
Khan
Filardo Ercan Architects Pty Ltd [2026] ACTSC 82
(1977) 180 CLR 266
(2007) 18 VR 48
The appellant considered those revisions of the plan were poorly thought out and reduced the utility of the room. In his view, any encroachment issue should have been highlighted at an early stage, and in any event before the plans were sent to the engineer to commence work. It was at this point the relationship broke down.
Before the Tribunal, the appellant alleged that this was one of the material ways in which the respondent failed to exercise due care and skill. That is the first issue on the appeal.
The remaining paragraph substantively dealing with the appellant’s complaints was that at [19], dealing with the breach of contract by not providing drawings that met the project brief (footnote omitted): 19. As to the applicant’s contention that the Original Tribunal erred in making a “suggestion” the applicant’s interest as a client could have been better met by a building designer, and erred in concluding that the project brief was not sufficiently clear, we consider the Original Tribunal made no error of fact or law, nor any error of discretion. In particular, we consider the applicant’s reliance on the decision of Christian Education Ministries as unfortunately misconceived, as the issues were different there. Samios DCJ was dealing with a distinctive instance in which the particular evidence accepted by the District Court was that the party had, in fact, given “an instruction to the architect that the design was to include a full-sized basketball court” and the architect there gave “no satisfactory explanation for why the words ‘full-sized basketball court’ were placed on this drawing”. The principles as applied in that case do not gainsay or call into question the decision of the Original Tribunal. This Tribunal has afforded both the applicant and respondent full opportunity to present their submissions in the hearing, but none of the applicant’s submissions have demonstrated any error.
That paragraph is also relevant to Issues 2 and 4 on the appeal. The Appeal Tribunal then concluded at [20] (footnote omitted): Conclusion 20. For all of the reasons indicated above, this Tribunal concludes that the Original Tribunal was correct in its decision, both as to the facts and the law, and as to the application of the law to the facts before it. The applicant has not demonstrated any error of fact or law, nor any discretionary error, by the Original Tribunal at first instance.
The final paragraphs dealt with the outcome, with the observation that the nature of the matter was unfortunate and with orders dismissing the appeal before the Tribunal.
It can be seen that the reasons essentially adopted the reasoning of the Tribunal. Aspects of that reasoning will be addressed as part of considering the issues.
My concern arises from the fact that in the Territory the common law of negligence has been modified by the provisions of the Wrongs Act. Unguided by assistance from the parties (one of whom was self-represented) or any discussion of this on either of the proceedings in the Tribunal, the provisions appear to apply to a claim based on s 60 of the ACL because of the broad definitions in the Wrongs Act (s 40) as follows: (a) Negligence is there defined to mean “failure to exercise reasonable care and skill”. (b) Harm is defined to include “economic loss”.
Having regard to the common law meaning given to the phrase in the ACL, the s 60 guarantee is a provision founding a claim for damages for harm resulting from negligence in substance, because there is no material difference between taking “reasonable care” and taking “due care”. Similar sentiments as to there being no material difference have been expressed elsewhere, a recent example being Coulter v Bush; Coulter v Domain Residential Northern Beaches Pty Ltd [2024] NSWSC 267 at [70].
The provisions of ch 4 of the Wrongs Act apply to “all claims for damages for harm resulting from negligence, whether the claim is brought in tort, in contract, under statute or otherwise”: s 41 of the Wrongs Act. Relevantly here, ss 42-46 of the Wrongs Act deal with duty of care and causation. There are mandatory considerations in s 43 that “a court” must consider in deciding whether a reasonable person in the position of the respondent would have taken precautions against a risk of harm. They include the probability that the harm would happen if precautions were not taken, the likely seriousness of the harm, the burden of taking precautions to avoid the risk of harm and the social utility of the activity creating the risk of harm.
An example of the statutory guarantee in question requiring an analysis through the prism of the state or territory legislation is Karpik v Carnival plc (The Ruby Princess) [2025] FCAFC 96 at [19], in that case applying s 5B of the Civil Liability Act 2002 (NSW) which is in almost identical terms to s 43 of the Wrongs Act.
Although the words of the legislation are that the provisions apply to a court, s 22 of the ACAT Act provides that the Tribunal has, in relation to civil dispute applications (which this was), the same jurisdiction and powers as the Magistrates Court. I consider that provision and its intent to mean the applicable law and what must be considered applies mutatis mutandis to the Tribunal where it is the decision-maker on a claim under the ACL.
While some of the same considerations at common law did arise in the Tribunal’s analysis, it is patent that the mandatory considerations under the Wrongs Act did not feature in that consideration and the failure to apply the Wrongs Act was an error of law.
To say that the Tribunal could not find for an applicant due to a lack of expert evidence as to the standard expected of a professional is contrary to the express provisions of the ACAT Act that the rules of evidence do not apply (s 8) and the Act’s object to ensure that the Tribunal procedures are “as simple, quick, inexpensive and informal as is consistent with achieving justice” (s 6). Underlying that informality are concerns of proportionality and a fundamental access to justice consideration.
It is worth recalling that the duty of expert witnesses is simply to furnish the Judge (relevant in this context) with the necessary scientific criteria to enable the Judge ultimately to form their own independent judgment by the application of the criteria to the facts proved in evidence: Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 at [93]. However, the fact that the professional conduct of an architect might be in question does not of itself prevent the Tribunal from exercising independent judgment without expert assistance.
Here, part of the conduct complained of involved whether the service was delivered in a reasonable time and whether the respondent followed instructions. That was informed by the documentary evidence and emails sent between the parties. The length of time it would take for a reasonably skilled architect to prepare the plans in question was something that may have been assisted by some form of expert opinion before a lack of due care and skill was established, but not necessarily formal expert evidence in the Tribunal. Further, the time taken to acknowledge and respond to enquiries may well have been a matter of common sense, rather than a matter that depended on an expert opinion. The lack of following instructions was also something capable of measurement by reference to the documents, rather than any expert evidence.
As another example, the respondent accepted the provision of a plan that was still in draft form to the engineer was not standard practice. A director of the respondent firm submitted to the Appeal Tribunal that: … typically drawings are sent to engineers after approval is granted, [when] drawings are actually 100 per cent complete.
It is difficult to see why expert evidence would be required to establish something that the respondent accepted and which in any event accorded with common sense.
The point to be made is that while I accept that some complaints raised here were of a kind where an expert opinion may have assisted, there were aspects of the conduct alleged to constitute a breach of the professional services guarantee of due care and skill that did not require any expert or specialised knowledge. Lest the Appeal Tribunal’s comments be taken in a way that was perhaps unintended given the earlier context explaining flexibility, it is not the case that a decision-maker cannot find for an applicant complaining about professional services in a tribunal setting without expert evidence. It depends upon what the complaint is. Statements to the contrary may undermine the express legislative intention.
That is all I wish to observe on that aspect of the reasoning. Whether the dismissive treatment of the evidence that was before the Tribunal amounted to a material error or was perhaps merely infelicitous language is unnecessary to develop in light of the other findings made in these reasons.
However, as submitted by the respondent, this aspect of the reasoning was ultimately immaterial to the Tribunal’s determination of the case. Similarly on this appeal, because I have not found a failure to meet the specifics of the brief, no legal consequences flow.
It can be seen from these passages that the Tribunal did endeavour to consider each aspect of the appellant’s complaints carefully, as to whether the conduct either individually or cumulatively amounted to a failure to exercise due care and skill. The difficulty for the appellant was not the approach taken, but the underlying findings on the merit of the complaints. Apart from the garage door, the Tribunal did not consider there was sufficient evidence to establish that the matters that were the subject of complaint were in fact mistakes or failures.
Rather, the Tribunal saw much of what occurred as being part of the creative design process in conjunction with differing views about the operation of development controls (on the issues of the retaining wall and solar encroachment). The Tribunal was not persuaded that the respondent’s views about either of those matters were incorrect, or even if they were, that they would have prevented the issuing of a 1N exemption.
Further, even if a holistic view of the conduct were taken, that still does not amount to a major failure under the ACL. For the purpose of considering this argument, I have assumed (contrary to my finding above) that the solar encroachment was a further failure to exercise due care and skill, but that it could have been rectified to the point where it was capable of receiving an exemption through the 1N process, and that it would have been rectified to the appellant’s satisfaction, such as by revisiting the ceiling heights or roof gradient or moving the entire dwelling away from the relevant boundary or some other design adjustment.
Taking the two failures together, in order to amount to a major failure justifying termination, the appellant would need to establish that the services would not have been acquired by a reasonable consumer fully acquainted with the nature and extent of those failures, taken as a whole. Each of the failures were readily fixable. In the case of the garage door, that failure was quickly remedied. In the case of the solar encroachment, that assumed failure was in the process of being remedied when the appellant withdrew from the engagement.
An important consideration is the nature of the contract, which was in stages, as discussed above. The respondent was not charging on a time-costed basis but on a staged development basis. That reflected the nature of the task and the fact that numerous revisions may be required in order to achieve a result that met the client’s expectations. The identification of the solar encroachment did not mean that the appellant would necessarily be forced to pursue a merit pathway, nor that he would have increased architect’s fees. In a way, that was a substantive precaution taken by the respondent which tied in with the possibility of mistakes or amendments of the kind identified by the appellant occurring. For that reason, I find that an objectively reasonable consumer would still have acquired the services under the same contract. Such a consumer would have known that there may be mistakes and non-compliances with development controls identified as part of the process that may cause adjustments to the plans but that the cost of such adjustments was to be borne by the respondent and that ultimately, the design was one that was capable of approval.
If one steps back and views the provision of architectural design services as: (a) taking longer than expected; (b) requiring multiple revisions of plans until the consumer was happy with the design; (c) necessitating an application for 1N exemption in order to render the design capable of approval (which, on the evidence, is more likely than not what would have occurred); and (d) being in a form yet to address the client’s sustainability objectives, the service provided by the respondent was not one that cumulatively fell short of reasonable precautionary measures to such a nature and extent as to mean that the services would not have been acquired by the reasonable consumer in the first place.
It was not enough to demonstrate that the architect’s design did not comply in certain respects with the original design brief, or that mistakes were made during the development of the plans, even accepting that they should have been identified by the respondent, not awaiting research by the appellant. The guarantee of “due” care and skill has reasonableness at its core. It does not require perfection.
For those reasons, I have reached the same conclusion as the Tribunal on the issues of failure to comply with the statutory guarantees. The respondent’s invoice
The total value of the contract for the four stages (preliminary design, final plans, development and building approval, and interior design) was $29,750 excluding GST or $32,725 inclusive of GST.
Of that: (a) The appellant paid $16,720 inclusive of GST. (b) $8,580 was for the interior design stage. There was no dispute that was cancelled by mutual agreement. (c) That left $7,425 inclusive of GST to be paid to the respondent by the appellant
Upon termination, the respondent issued a progress payment invoice for $6,270 inclusive and claimed that payment, on the basis that the final stage was 95% complete.
Given that no basis for termination under the contract or under the ACL was established, the respondent remained entitled to payment for the work completed up until termination. Accordingly, there is no basis to disturb the Tribunal’s orders, confirmed on appeal.