1. The Act is older than many equivalent Acts which regulate professions. Section 1 sets out the Purposes of the Act in only very general terms. There is no provision which explicitly sets out the Objectives of the Act. However, it is clear the Act establishes a disciplinary framework in order to protect the public and to protect the reputation of the profession (and hence public confidence in the profession).
2. The Regulations include a requirement to act in the client's interests, rather than favouring their own interests (reg 7), and a requirement to set out in writing any change to the terms and conditions of an architect's engagement, and supply that document to the client (reg 14).
3. The process for conducting disciplinary inquiries into the conduct of registered architects is set out in Part 4 of the Act. This provides for a three person Tribunal to be appointed where the Board, on receipt of a complaint by any person, determines that an inquiry should be held into an architect's fitness to practise or professional conduct (s 18).
4. Section 32 of the Act is as follows:
   1. Grounds for disciplinary action against a registered architect

If after considering the submissions made at an inquiry the Tribunal finds that -

(a) the architect is careless or incompetent in his or her practice; or

(b) the professional standards of the architect are demonstrably lower than the standards which a competent architect should meet; or

(c) the architect is guilty of unprofessional conduct; or

(d) the architect has breached or failed to comply with any provision of this Act; or

(e) the architect has been convicted in Victoria of an indictable offence or has elsewhere been convicted of an offence which if committed in Victoria, would be an indictable offence; or

(f) the registration of the architect has been obtained by fraud or misrepresentation or concealment of facts -

the Tribunal may make one or more of the following determinations -

(i) to require the architect to undertake further education of a kind, and to complete it within a period, stated in the determination;

(j) to impose a condition or limitation on the architect's registration relating to the architect's practice;

(k) to impose a penalty not exceeding 50 penalty units;

(l) to suspend the architect's registration for the period stated in the determination;

and may make any determination as to costs that it thinks fit.

1. Allegation 1 alleges a breach of reg 14. This states:
   1. Defining the terms of engagement

Before an architect accepts an engagement to provide architectural services or services as a developer or services both as an architect and a developer and as soon as practicable after any change to the terms and conditions or scope of engagement becomes known to the architect, he or she must -

(a) in writing, set out the description, terms and conditions of the engagement or the change; and

1. Allegations 3, 5 and 7 allege a breach of reg 6. This states:

An architect must perform his or her work as an architect in a competent manner and to a professional standard.

I refer to the requirement to perform work in a competent manner as the 'first limb', and the requirement to perform work to a professional standard as the 'second limb' of this provision.

1. Allegations 1, 3, 5, and 7 each allege that Mr McSteen is guilty of 'unprofessional conduct' under s 32 (c) of the Act. Those allegations are brought pursuant to reg 16, which relevantly states:

Without limiting the meaning of unprofessional conduct -

(a) an architect who contravenes one or more of regulations 6 to 14 is guilty of unprofessional conduct

So if proved, these alleged breaches of regs 14 and 6 automatically stand as unprofessional conduct.

1. Allegations 2, 4, 6 and 8 each allege a breach of s 32(a) of the Act. That is, they allege in each case, that Mr McSteen was careless or incompetent in his practice. They are not in terms allegations of unprofessional conduct.
2. Both parties referred to the common law meaning of 'unprofessional conduct'. [1] They referred to Re A Practitioner,[2] a decision of the Full Court of the Supreme Court of South Australia, which stated:

In our view 'unprofessional conduct' is not necessarily limited to conduct which is 'disgraceful or dishonourable', in the ordinary sense of those terms. It includes, we think, conduct which may reasonably be held to violate or to fall short of, to a substantial degree, the standard of professional conduct observed or approved of by members of the profession of good repute and competency.[3]

1. However, in this case, the question whether there has been unprofessional conduct is determined by whether or not reg 14 has been breached (in the case of charge 1) or whether reg 6 has been breached (in the case of allegations 3, 5 and 7) rather than directly by reference to the common law definition.
2. The most significant issues raised by the Board in this proceeding relate to the way in which the architect has chosen to deal with his client, rather than, for example, technical errors in drawing plans. The key consideration concerns the second limb of reg 6, namely whether the architect has performed his work 'to a professional standard' in this regard.
3. It was submitted on behalf of Mr McSteen, in effect, that the conduct of the architect the subject of the present allegations more properly falls into the category of a civil dispute between contracting parties. In this case, there was a civil dispute, which was resolved by negotiation at VCAT.
4. While the conduct obviously fell into the separate jurisdictional category of a civil dispute, it is also amenable to proceedings in the disciplinary jurisdiction, because it is part of an architect's professional responsibilities.

1. On 18 April 2013, Ms Tassell lodged a complaint with the Board. On 6 November 2013, the Board gave Mr McSteen notice that it had decided to hold an enquiry into his fitness to practise as an architect and into his professional conduct. It appointed a Tribunal to conduct an inquiry for the Board under s 19.
2. In April 2014, that Tribunal determined a preliminary issue raised by Mr McSteen. It determined that it did have power to conduct an enquiry even though there had been a resolution at VCAT of the dispute between Mr McSteen and Ms Tassell relating to the retainer. It rejected arguments based on the effect of the release signed by the parties, the nature of these disciplinary proceedings, natural justice, and Anshun estoppel. (For the most part, those matters were not revisited on behalf of Mr McSteen in the VCAT hearing.)
3. That Tribunal then conducted a hearing into the allegations between 29 September and 8 December 2014. In total, there were five hearing days, plus the hearing on the preliminary question. On 19 January 2015 the Tribunal handed down its final decision. It found Mr McSteen guilty of all eight allegations. It imposed a fine of $1,000 in relation to each pair of allegations, save that a fine of $1,500 was imposed for charges 3 and 4. So the total fines imposed amounted to $4,500.
4. On 27 January 2015, Mr McSteen commenced this review proceeding at VCAT. VCAT has conducted a full de novo hearing, considering the matters afresh. This VCAT review has run for five hearing days including a no case submission, which was not successful, which occupied most of day 2.

1. The Tribunal was presented with a very substantial volume of evidence. Both Ms Tassell and Mr McSteen produced multiple witness statements, with numerous attachments. The oral evidence of Ms Tassell took approximately a day, and that of Mr McSteen about a day and a half.
2. As part of Mr McSteen's case, witness statements were also received from the following:
   • Alan Lorenzini - building surveyor, initially engaged on this project
   • Anthony John Corrigan - client of Mr McSteen
   • Christopher Naylor - client of Mr McSteen
   • Geoff Woolcock - building surveyor
   • John Bertocchi - client of Mr McSteen
   • Kim Tan - architect and colleague of Mr McSteen
   • Regina Bron - architect
   • Richard Featherstone - architect
   • Robert Caufield - architect
   • Terrence Nott - architect.
3. Of these persons, only Mr Lorenzini, Mr Woolcock and Mr Caufield gave oral evidence. The statements of the remaining witnesses were accepted into evidence, although the Board contended they were not relevant. The evidence of those remaining witnesses received little if any attention in the hearing and in submissions.

CIRCUMSTANCES IN WHICH THE ALLEGED CONDUCT OCCURRED

1. Ms Tassell engaged Mr McSteen in 2005 in relation to an extension she wished to carry out at her single fronted terrace house in North Fitzroy. Ms Tassell wanted to achieve a similar result to a renovation she had seen of a terrace house in Elgin Street, Carlton which Mr McSteen had designed. The design comprised a back extension and addition of a first floor bedroom, with ensuite, balcony and terrace.
2. Following a meeting between Ms Tassell and Mr McSteen, he produced a 'Design Report' dated 12 May 2005. The report considered the question 'Could the desired renovation be achieved for a budget of $170,000?'. The answer was no, it would cost in the $260,000 - $300,000 range. This was referred to as a 'low' to 'medium' price range. However, possible cost savings amounting to $54,000 were detailed. The report also set out indicative costs for architectural fees on either a partial service or a full service basis, with town planning requirements and consultant fees as extras.
3. Ms Tassell chose 'partial service'. On 2 September 2005 both parties signed a standard Royal Australian Institute of Architects (RAIA) 'Client and Architect Agreement'. This stated that the budget for the project was $250,000 approx' (on page 1). Similarly, it was stated to be based on a 'cost of building work of $250,000 (approx)' (page 4). The price for architectural services was $12,000 plus 10% GST = $13,200 in total.
4. The project was delayed from 2005 - 2009 while matters such as town planning approval and resolution of an adverse possession claim by Ms Tassell were dealt with.
5. Around August or September 2009, Ms Tassell and Mr McSteen verbally agreed to alter the contract for architectural services from 'partial service' to 'full service'. It was agreed that the fee would be 12.5% (including GST) of the build cost of the project. No new RAIA contract was prepared at this stage. There is a dispute about who initiated this change, but it is not necessary to resolve that for the purposes of this decision.
6. The variation was however referred to in tax invoice No. 8 dated 30 September 2009, which bore the words 'full service'. It stated that professional fees were 'based on an estimated project cost of $400,000'. It stated that the fees due at that point were '26.8% of an overall fee of 12.5% of a budget of $400,000 = $13,400'. Credit was given for $4,400 already received for architectural services, leaving a total due of $9,000. This invoice specified 10 stages of the project. It indicated that work had been done to the end of stage 4, amounting to 26.8% of the project. The first four stages were stated to be:
   1. Preliminary design drawings
   2. Estimates
   3. Preliminary working drawings
   4. Estimates.
7. On 3 October 2009 Mr McSteen sent a letter to Ms Tassell stating that his estimate of $260,000 - $300,500 in 2005 (considering a low to medium price band) would now have changed to $340,000 - $440,000. A rough breakdown of these figures was provided. It listed estimated amounts for demolition, additions (this was the major item - figures of $220,000 - $275,000 were given, based on 88 sq m), fitouts (ensuite, robe area and bathroom), balcony and fitouts (kitchen/laundry and stair). In addition, the letter stated that the inclusion of 'special' items such as feature commercial type glazed bi-fold doors, a feature staircase and laser cut screens may well have extended the budget further. While no price was put on these special items, the letter did put figures on three items over and above those comprising the $340,000 - $440,000 range. These were expressed as follows:

We previously considered that cost savings could be achieved in a number of ways:

- staging the work, consider fitting out the first floor en-suite at a later date,

- keeping all construction to timber framed construction only, ie. no brickwork, no concrete slab, no steelwork,

- reduce the overall size of the first floor, match the new ground floor area,

If we need to consider savings, some of the above may be useful approaches.

We are proceeding with the developed working drawings and I welcome your advice re the cost matters raised in this correspondence.

1. In response to receipt of the letter and the invoice, Ms Tassell rang Mr McSteen. She said her budget was '350K plus extras of stairs, steel laser cut, glass doors'. Mr McSteen said he would talk to a builder to work out a budget for the project.
2. On 23 December 2009, Ms Tassell had a meeting with Mr McSteen at his office. Amongst other things, they discussed ways in which cost savings might be able to be achieved.
3. Mr McSteen said that at this meeting he gave Ms Tassell a new RAIA 'Client and Architect Agreement', and asked her to read it, sign it and send it back to him. Ms Tassell denied that this occurred. She said the first time she received a copy of that agreement was at the VCAT mediation on 15 February 2013 - in the course of the dispute which subsequently arose between her and Mr McSteen.
4. In any event, it was agreed that a quantity surveyor would be contracted to provide a costs assessment based on drawings and a scope of work provided by Mr McSteen. These had been provided to Mr Chris Humble of Cost Control (Victoria) Pty Ltd, by Mr McSteen on 1 February 2010 and 12 February 2010 respectively. Mr Humble's estimate was provided on 19 February 2010. The estimate was $374,500. This excluded certain specific items, most relevantly, 'works to existing house excluding floor repairs & re-painting'. In forwarding this report to Ms Tassell, Mr McSteen made a comment to the effect that he felt the builder's margin of $33,000.00 specified by Mr Humble should perhaps be increased from 10% to 15% or 20% (that is, from $33,000 to $49,500 or $66,000). Otherwise, he said, it provides useful guidance.
5. On 10 May 2010, Mr McSteen sent Ms Tassell invoice No. 9. This specified an 'Actual fee due' of '75% of an overall fee of 12.5% of a budget of $375,000 = $35,156.25'. This referred to 75% of the total architect's services on the project having been performed by this stage. That is, fees were said now to be due on stages 5, 6, 7 and 8. These stages were:
   1. Material selection
   2. Permit drawings
   3. Tender drawings
   4. Construction drawings.

This tax invoice also stated that the fees were 'based on an estimated project cost of $375,000'.

1. In actual fact, invoice 9 was only for the amount of $11,756.25, taking the total billed to $25,156.25.
2. On 3 December 2010 Mr McSteen sent invoice No. 10 to Ms Tassell. This was for the amount of $10,000, taking the total billed to $35,156.25 (ie the full 75% of $375,000). Mr McSteen said this was because by 3 December 2010, the drawings were completed and charged for fully. This invoice again referred to $375,000 as the 'probable budget' and also as 'an estimated project cost'.
3. Both invoices 9 and 10 were paid promptly by Ms Tassell.
4. For financial reasons, Ms Tassell deferred the commencement of the project proper until around May 2012. It was however arranged for the rear outside toilet to be demolished in mid-2011, so that the latest possible commencement date for works under the town planning permit was complied with.
5. Mr McSteen said that during the period 2009 - 2012, Ms Tassell requested changes to her existing house. In a document prepared later on, for the purposes of the inquiry into Mr McSteen's conduct, Mr McSteen listed these, and estimated that they would cost $76,300. These included a balcony over the living room ($20,000), painting ($20,500) and a front fence ($12,000).
6. Mr McSteen also said that between 2010 and 2012 Ms Tassell sought various changes to be made to the plans and specifications, which added significantly to the cost of the project. In a document which was again prepared for the purposes of the inquiry, Mr McSteen listed these, totalling $113,700. During his evidence, Mr McSteen very frequently stated that Ms Tassell was seeking high end finishes, well in excess of what her budget could afford.
7. It appears that around May 2012 Ms Tassell was ready to proceed to obtain tenders.
8. On 24 May 2012, she emailed Mr McSteen stating she would like to go down the path of just getting the shell done at this stage, and later on doing the internal fit-out, 'given my budget will only be about $250K maximum at the moment'.
9. On 24 May 2012, Ms Tassell also requested a copy of the specifications Mr McSteen was sending out to the builders for tendering, as she wanted a friend of hers to quote on the job.
10. On 20 June 2012 Mr McSteen sent revised specifications for the project to Ms Tassell, to enable her to pass these on to her builder friend, Mr Glen Johnston. This document specified two stages for the work. Stage 1 was work to lock-up stage. Stage 2 was 'completion works' including cabinetry, bathroom fittings, paving, rear pergola, bi-fold lane gates and front fence.
11. It appears the same documents went out to the other tenderers as well. These were architectural plans dated June 2010, specifications dated June 2012 and 'addendum/clarification notes to specification' dated 17 July 2012.
12. On 16 July 2012, Mr McSteen had a meeting with Ms Tassell, in his words, 'to discuss the revised specifications and she confirmed that she wanted all the high end finishes and extras she has previously specified'.[4] Ms Tassell's position, in contrast, was that while she was interested in pursuing whatever 'high end' finishes she could, that was subject to her budget. She said it was up for discussion. She wanted to know what could be achieved. She wanted to work through the specifications together, to get down to a budget of $400,000. But this did not occur. She said he did not discuss the specifications with her before he prepared them.
13. On 30 July 2012, Mr McSteen sent invoice No. 11 to Ms Tassell. This was expressed as being 'based on an estimated project cost of approx. $400,000'. The invoice was for the amount of $4,843.75. This was expressed as being '80% of an overall fee of 12.5% of a probable budget of $400,000 = $40,000'. The increase from 75% to 80% of the total architect's work on the project appears from the configuration of the invoice to relate to stage 9 which was described as 'On-site administration'.
14. On 6 August 2012, Ms Tassell sent an email to Mr McSteen which noted the increase in the probable budget to $400,000, compared to the last invoice ($375,000). The email also stated:

Given that $375 - $400 is an unrealistic budget for me, given the last few years with the GFC, $275 to $300 is more likely.

How does the billing work? do you reimburse me if it say comes in at $280,00.

1. Mr McSteen responded by email on 13 August 2012 as follows:

In relation to the cost assessment that is used for assessing an architectural claim, I tend to keep the probable budget figure below what I believe to be the actual cost, so that you are not in the position of paying above the cost of the project.

I adjusted the $375,000 figure to $400,000 as a rough adjustment for the project since we started it several years ago. I'd expect the actual cost to be above this.

We'll have some real costs this Wednesday, so just leave the account until that time and we can then discuss in more detail where we go with the project.

1. On 15 August 2012, Ms Tassell met Mr McSteen at his office. They discussed the builder's quotations which had been received by Mr McSteen. He produced a document which summarised the quotes from three builders for both stages 1 and 2 as ranging from $660,000 to $772,512.
2. A fourth builder, Ms Tassell's friend Glen Johnston, quoted $334,000 on 20 August 2012. This quote was for stage 1, but not for stage 2.
3. Around this time, Ms Tassell decided she wished to retain Mr Johnston as her builder.
4. Around 13 September 2012 Mr Johnston's quote was increased to $347,000 (still for stage 1, and not for stage 2) after Mr McSteen drew attention to certain omissions. Both these quotes were for stage 1, but not for stage 2.
5. Mr McSteen was aware Ms Tassell intended to use Mr Johnston, and the three of them met around 18 September 2012 to discuss his quote and specifications (for stage 1), 'the actual budget' (Ms Tassell's expression) and how the project could be achieved. Ms Tassell said in evidence that Mr McSteen was going to have to do site visits - so it was important he got along with Mr Johnston.
6. On 20 September 2012, Mr Alan Lorenzini, building surveyor, provided a quotation for providing certification services in relation to an approximate scope of works of up to $350,000.00. Mr McSteen advised Ms Tassell to accept this quote, which she did, on the same day. In his email to Ms Tassell, Mr McSteen said:

In relation to the works, the building surveyor has advised that the builder would take out the permit up to 'lock up' and that you would take out the permit as an owner builder, from 'lock up to completion'.

1. As late as 28 September 2012, Mr McSteen was corresponding with Ms Tassell by email for the purpose of assisting her to ensure that the works Mr Johnston intended to carry out accorded with her requirements.
2. It appears clear that the relationship between Ms Tassell and Mr McSteen soured around early October 2012, however. He formed the view she was seeking to avoid paying the fees to which he was entitled.
3. On 9 October 2012 he sent invoice No. 12 to Ms Tassell. It was this invoice which precipitated the termination of Mr McSteen's retainer by Ms Tassell (on 16 October 2012). The 'actual fee due' was stated to be '80% of an overall fee of 12.5% of a budget of $555,660 = $55,566.00'.[5] This left $20,409.75 outstanding (including $4,843.75 for invoice No. 11).
4. That is, the build cost, on which Mr McSteen's fee was based, and gone up from the amount shown on the previous invoice No. 11 by $155,000 (from $400,000 to $555,660). And so Mr McSteen's overall fee for the job to that point (80% complete) had increased by $15,566 (from $40,000 to $55,566).
5. The way in which this figure of $555,660 was calculated for the build price was explained in Mr McSteen's letter to Ms Tassell of 9 October 2012 as follows: The 'medium' range figure specified in the letter of 3 October 2009 of $440,000 was taken as a starting point. To this was added specialised commercial type glazing ($15,000) and heating/cooling ($25,000.00). This brought the 'total medium building cost' to $480,000. This was uplifted by 5% for three successive years 2010, 2011 and 2012, to provide for increases in costs, yielding the total of $555,660.

1. The 9 October 2012 letter also stated that if Ms Tassell was planning to use Mr McSteen's services for 'On-Site Administration', his fee would be '$347,000 x 12.5% x 20% = $8,675 over six months or $1,500 per month'. The basis on which those figures were used by Mr McSteen is not clear.
2. The 9 October 2012 covering letter also set out Mr McSteen's projection as to what Mr Johnston's price for stage 2 was likely to be, to enable comparison with the other builders' prices. He came up with the figure of $186,500 for the building of stage 2 by Mr Johnston, making a total of $533,500 for stages 1 and 2.[6]
3. On 12 October 2012, Ms Tassell emailed Mr McSteen. She said she had never indicated a budget in the mid-$500,000 range. She said:

I received your invoice in the mail last night and was quiet [sic] distressed to say the least.

My understanding of how your fees are charged is 12.5% on the overall construction cost, charged in stages. I appreciate that an estimate is used until the final tender price is determined. In this case a $375,000 to $400,000 estimate had been used consistently throughout the process.

When I signed the client/Architect Agreement back in 2005 my budget was approx. $250k, and a partial service was required, we then changed to a full service in Sep 2009, and the budget was assessed more realistically at $340K to $440K. A formal amendment to the contact was never signed, but stated in your invoice No 8 Sep 2009, budget $400,000.

I have never indicated that my budget would be in the mid $500, on numerous occasions I have stressed that my budget was reduced to approx. $350K after the GFC. On that note we proceeded to cut costs by eliminating items I could live with-out, i.e. upstairs bathroom fit out, part kitchen fit out, pergola etc.

Bottom line, I simply cannot afford to pay you an extra $20,000 plus, I believe my payment of $35,000 up to date on the actual building cost of $347,000 with Glenn represents 81% cost to date.

If you feel this is not the case, I will have to end the relationship now and deal directly with the builder, Council and Engineers and instruct you to send all documentation held in my file out to me.

I appreciate your work up to date, but the cost is just excessive given I still have not even started building and it is coming up to 7 years.

Current costs expenses to date including VCAT, JSC, T Brezzi, McSteen Tan approx. $67,000.

1. In response, on the same day, Mr McSteen emailed Ms Tassell back. He said:

I'm very happy to re-visit things re the budget and our fees and I'm upset that you are offended by the current account.

I fully understand that you wish to reduce costs where ever possible, however, I'm not sure that we were looking to do so when we carried out our documentation. As recent as last year we were instructed by you to add additional cabinets into the kitchen north wall, to allow for travertine finishes, to add in rusted metal cladding, etc. - none of these things being a cost cutting exercise.

Certainly, for some time we have been waiting for a better economic climate for you to proceed with the project and we have looked at staging the project to spread your spend.

Our fees can't just be based on the current stage 1 'lock up' work that Glen is planning to carry out, because we have fully documented the project beyond Glen's proposed stage.

In our correspondence to you, 3.10.2009, we stated that a Medium build spend would be $480,000. We then continued, from your instructions, to add in items that attract High end costs.

So, I'm happy to discuss where we are with you. Would you like to come in for a discussion, how would you like to proceed?

In other words, Mr McSteen was saying he was entitled to fees based on the build price for the whole project - stages 1 and 2 - even if Ms Tassell only proceeded with stage 1 now.

1. On 15 October 2012 Mr McSteen wrote to Ms Tassell, further explaining the basis for the increase in the figure he had allocated for build costs. He referred to the 'medium build cost' of $440,000 referred to in the 3 October 2009 letter plus the three quantified additional items amounting to $65,000 (namely commercial glazing, heating, cooling and landscaping). He then listed the additional items and/or increases in specifications which had arisen out of his discussions with Ms Tassell on 23 December 2009, 27 January 2010 and 18 January 2011. He said in view of her concerns about his account, he could consider reducing the build price utilised for the purposes of calculating his fees to $500,000. That would result in an overall fee of $50,000 (for 80% of the job) with $14,843.75 owing (allowing credit for the sum of $35,156.25 already paid).
2. On 16 October 2012, Ms Tassell wrote to Mr McSteen terminating his services. She stated that the probable build cost of $374,500 (the figure determined by the quantity surveyors) was the figure they had been working around, and her budget was never in the $500,000 range. She said, '... it has always been stretched to a max of $400K.' She said he had a duty of care and responsibility as an architect to keep the budget in check.
3. In response, on 16 October 2012, Mr McSteen emailed Ms Tassell stating that he did not believe she was entitled to use his documentation. He would obtain legal advice and revert.
4. On 25 October 2012, Ms Tassell wrote to Mr McSteen, without prejudice, having obtained independent advice from an RAIA senior fellow, Brian Miller. She challenged both the build price, and the percentage of the overall task completed, which were relied upon by Mr McSteen in his recent correspondence. She proposed a final payment based on 75% of 12.5% of $400,000. Adding GST and subtracting payments previously made, this came to a proposed final payment of $2,578. Ms Tassell also sought written approval to the use of the documents and provision of drawings in CAD format.
5. On 31 October 2012, Mr McSteen's solicitors, A.E. Natoli Pty Ltd wrote, claiming an amount due of $25,156.25 and refusing permission to use the drawings.
6. On 9 November 2012, Ms Tassell's solicitors, Neil McPhee and Associates, offered to pay $5,000.00.
7. The matter was not resolved and Mr McSteen lodged a claim in VCAT seeking payment of the sum of $21,361.50 (calculated on a different basis to those previously relied upon by Mr McSteen). On 15 February 2013 the VCAT dispute in relation to Mr McSteen's fees was resolved by negotiation. Ms Tassell paid Mr McSteen the sum of $13,000.
8. The thing that precipitated Ms Tassell's complaint to the Board, however, was not Mr McSteen's demands for fees, but rather his refusal to co-operate with her attempts to obtain plans in a form which would attain building approval, including his refusal to provide drawings in CAD (that is, in electronically alterable) form.
9. In February 2013, Ms Tassell engaged a different building surveyor to the one Mr McSteen had engaged. Mr McSteen had engaged Mr Alan Lorenzini, a building surveyor he was accustomed to dealing with. Mr Lorenzini had obtained a building permit for demolition of the rear toilet (as a means of satisfying the requirement to commence works within two years of the grant of a planning permit).
10. Ms Tassell said she initially sought to utilise the services of Mr Lorenzini but ultimately, in February 2013, she retained Approved Building Surveyors Pty Ltd (ABS). On 19 February 2013 ABS provided Ms Tassell with a list of items that required attention before building approval could be obtained. Ms Tassell then engaged in email correspondence with Mr McSteen's office between 5 and 22 March 2013, mostly with Mr Brett Hudson, who worked in Mr McSteen's office. She requested the CAD file of Mr McSteen's architectural drawings to enable slight modifications to be made. This request was refused. Although Mr McSteen accepted that he was obliged to provide the plans to Ms Tassell following the settlement, his position was, in effect, that he was not obliged to provide them in electronically alterable form. It was also said it was unfortunate that she had chosen a new building surveyor. Different building surveyors take different views, and Mr McSteen had been confident he would be able to work the issue through with Mr Lorenzini.
11. Ms Tassell spoke to Mr Lorenzini again, and he agreed that a minor modification to the plans, or else an 'alternative solution' was required before building approval could be given. Mr McSteen ultimately refused to assist Ms Tassell to obtain building approval.
12. This is what provoked her to complain to the Board. She regarded it as Mr McSteen's responsibility following the resolution of their dispute at VCAT, to provide her with plans in a form which would obtain building approval. This view proceeded on the basis that the fees the subject of the dispute were for work up to and including the completion of stage 8. That is, including the preparation of 'construction drawings', with the only tasks not having been done being '9. On Site Construction' and '10. Contract accounting'. Ms Tassell lodged her complaint with the Board on 18 April 2013.
13. On the same day, Ms Tassell signed a contract with Mr Glen Johnston. The price (including GST) was $400,000. Although Ms Tassell said this covered both stages 1 and 2, of the project, it excluded a number of items including: landscaping, timber fencing, split systems, external and internal painting, kitchen joinery work - stone tops, all plumbing fittings, including toilets, basins and tapware, flooring/tiling in the kitchen area, timber decking works.
14. In April 2013 Ms Tassell instructed ABS to prepare an application to the Building Appeals Board (BAB) for a modification of the relevant building regulations. This application cost $764.81. The application related to compliance with fire separation requirements concerning three separate parts of the project:
    1. the rear balcony
    2. the terrace/balcony at the front of the extension,
    3. the proposed canopy roof over the first floor of the extension.
15. On 27 June 2013, the BAB refused the application in relation to all three aspects.
16. In response, Ms Tassell acted on the advice of ABS to engage a fire engineer to prepare an 'alternative solution'. She engaged Mr Robert Mariscovetere, for the sum of $1,650. Mr Mariscovetere provided a report which satisfied the requirements for obtaining building approval.
17. Additionally, Ms Tassell stated she was required to employ a draftsman in May 2013 to make manual modifications to the plans. She said he had to use tracing paper to do this. This was in the light of the fact that Mr McSteen had refused to provide the drawings in CAD (ie electronically alterable format). This cost her $900.
18. The project took some time to complete. The final inspection by the building surveyor was on 25 May 2015. Ms Tassell said the project was completed to her satisfaction for $465,000 - $470,000, including 'some higher end finishes' which she did not expect, but was ultimately able to afford as she came into some more money.

1. On behalf of Mr McSteen, it was contended that Ms Tassell's credit as a witness was impaired in cross-examination, in 12 instances, as a result of particular responses she gave to questions.
2. The first two of these related to what was referred to as the 'forgery' of the quotation provided by Mr Johnston to Ms Tassell for the project. In her complaint to the Board of 18 April 2013, Ms Tassell stated that she accepted a quotation from Mr Johnston of $400,000. In the course of the investigation of the matter, Ms Tassell was apparently asked by the Board's solicitors in May 2014 to provide this quotation for $400,000. Ms Tassell emailed Andrea Johnston on 29 May 2014 as follows:

Could you send me in the revised quote for $400K, I only have the $347K on email, need to send to the solicitor.

1. The quotation document produced was dated 13 September 2012. That appears to be a later version of the document, dated 20 August 2012, which was used in the discussion at the meeting between Mr McSteen, Mr Johnston and Ms Tassell, on or about 18 September, before Mr McSteen's retainer was terminated.
2. It was contended that this quotation included matters which must have post-dated the commencement of the works, suggesting that it was not a true document. It was contended that Ms Tassell had procured this document (which was a 'forgery') in order to bolster her complaint to the Board - to suggest that there was a $400,000 quotation in existence prior to the contract being signed between Ms Tassell and Mr Johnston on 18 April 2013, and in fact, prior to Mr McSteen sending account No. 12 on 9 October 2012.
3. Various draft versions of the quotation from Mr Johnston were relied on, in support of this contention. These had been obtained under subpoena from Mr Johnston (who was not called to give evidence). These various drafts contain handwritten changes to the specifications, the price, the list of excluded items and the date of the document itself. In relation to the specification of price, various of the versions show successively the initial price of $334,000, then the amended figure of $347,000, then that crossed out and replaced by the figure $400,000 in handwriting, then that figure of $400,000 incorporated into the typed version of the document itself.
4. The evidence led does not support the contention on behalf of Mr McSteen that Ms Tassell procured a forged document to bolster her complaint to the Board. Evidence was not called from the key person who was in the best position to shed light on this issue, Mr Glen Johnston, or his partner, Andrea. Also, arguments based on the suggestion that Ms Tassell had lied as to when certain emails might or might not have been deleted from her workplace email system, were not supported by sufficient evidence; they were no more than speculation.
5. Ms Tassell was clearly unfamiliar with the different versions when they were put to her during cross-examination. The evidence in relation to these left the matter unresolved and quite confused. It certainly does not form a sufficient basis on which it can be concluded that Ms Tassell acted dishonestly in regard to the provision of the quotation to the Board.[7]
6. In any event, I do not accept the narrative put forward by Mr McSteen, which purportedly explains why it would be in Ms Tassell's interests to mislead the Board in this way: it was contended the allegation by Ms Tassell that she had accepted a $400,000 quotation was 'of great interest' to the Board.
7. From all the material put before the Tribunal, it appears Ms Tassell was always quite open that the circumstances were that once she decided to use Mr Johnston (sometime around August 2012) she had not determined which stage 2 works would be included in the project initially, just that they must not take the budget beyond $400.000.
8. A related matter is the fact that in her complaint letter to the Board of 18 April 2013, Ms Tassell stated:

In Aug/Sept 2012 tenders were received varying between $400K to $772K. I accepted the quote from builder Glen Johnston that came in total [sic] of $400K, including $347K for stage one and $53K for stage two, which includes the total fit out.

1. In fact, the tender from Mr Johnston received at that time was for $347,000 for stage 1 only. It was not until around February 2013 that she agreed with Mr Johnston that selected stage 2 works at a cost of no more than $53,000 would also be part of the contract. Ms Tassell acknowledged this inaccuracy in giving her evidence.
2. Also, it was clear from Ms Tassell's evidence that she worked with Mr Johnston to achieve a combination of stage 2 works which did not exceed $53,000, so her overall budget of $400,000 was met, and that this excluded a number of items from the stage 2 specification prepared by Mr McSteen. So it did not include 'total fit out' in that sense. However, on the same day as Ms Tassell wrote her letter of complaint, she had signed the contract for $400,000 with Mr Johnston. She was happy that she was getting the best combination of stage 2 items she could for the sum of $53,000. While 'total fit out' appears not to be a correct description of the position, again, as stated, Ms Tassell was open about the circumstances of her contracting with Mr Johnston. It is of course a matter for the Board to gather evidence for the purposes of its investigation into an architect, and it was in a position to do so, including obtaining the contract signed on 18 April 2013, which listed a number of items which were excluded for the $400,000 price. Hence, I do not regard this paragraph in her complaint as impairing her credibility.
3. The third basis on which it was contended Ms Tassell's credibility was impaired was that she had given an incomplete answer to a question about what items of work she had done to the existing house (as opposed to the extension). The applicant referred to her answer which mentioned only two new archways, a doorway in the second bedroom, new heating that ran throughout the house and polishing of the floorboards.
4. I find that Ms Tassell's credibility is not impaired in this regard for several reasons. First, the way the questions were put did not invite her to list the works comprehensively. It was not made clear she was required to list them all. In any event, this would have been difficult for her without fuller references to documents being given to her.
5. Also, Ms Tassell's responses reflect her view that some works were outside the scope of her retainer with Mr McSteen, and so should not be counted in the calculation of his fee. For example, certain works to the roof, which she said were not anticipated. They came up later, as a result of leaks occurring. She said they were quite separate from the retainer with Mr McSteen. This reflects a difference of view between Ms Tassell and Mr McSteen, not dishonesty on her part.
6. Fourth, it was said that Ms Tassell's credibility was impaired because she said her budget was around $350,000.
7. A fair summary of Ms Tassell's position throughout the life of the retainer with Mr McSteen was that her stated budget fluctuated, but never exceeded $400,000. While some indications were given to her that it could be difficult for her to complete various aspects of the project for less than $400,000 overall, her position was quite consistent throughout, that she had to stick to her budget. She wanted to have discussions with Mr McSteen, and the builder about how this could be achieved. There was also disagreement between Ms Tassell and Mr McSteen about what items should properly be included in the budget. For example, she said landscaping (for which Mr McSteen tentatively allowed $25,000) was never part of the works the subject of the retainer.[8]
8. Her credibility is not impaired in this regard.
9. Fifth, Ms Tassell's statement that she did give Mr McSteen notice before terminating his retainer, was referred to. He contends she did not. This reflects a difference of opinion between the two. It does not impair her credibility.
10. Sixth, it was contended that Ms Tassell was dishonest in stating she told Mr Johnston to base his quotation on the same specifications as the other builders. It was clear Mr Johnston quoted for the overall job on a different basis to the other builders. He quoted separately for stage 2, later, and included fewer items - after discussion with Ms Tassell - in order to bring the cost down to $400,000. When her evidence is looked at overall, it is clear Ms Tassell was not contending that Mr Johnston's price included all the items which the other builders' did. Ms Tassell's credit is not impaired in this regard.
11. Seventh, it was contended Ms Tassell's statement she ultimately spent $465,000 - $470,000 on the project was false. This was alleged on the basis of Mr McSteen's best estimate of the total spent on the property from 2013 onwards - from invoices, bank statements, contract variations and other documents subpoenaed from Ms Tassell and Mr Johnston. Mr McSteen contended the figure was at least $541,000.
12. This is clearly an estimate however, calculated on incomplete evidence, based on unverified assumptions, and including some works Ms Tassell contends were separate from those the subject of Mr McSteen's retainer.
13. Again, this is a difference of opinion and it does not impair Ms Tassell's credibility.
14. Eighth, it was suggested that her response to a question about variations 10 and 11 to her contact with Mr Johnston was disingenuous. Mr Gillespe-Jones said these variations could not be located amongst the documents subpoenaed from Ms Tassell and Mr Johnston. Asked about this, Ms Tassell said she could not say, Mr Johnston was doing jobs for her parents and another friend, and that he had a book in which he numbered his contract variations from 1 to 100. This seems unusual. However, no evidence was led from Mr Johnston about this. Ms Tassell's answer was speculative in any event. This does not undermine her credibility.

1. Ninth, it was suggested that Ms Tassell's stance that she expected the architect's drawings provided by Mr McSteen to comply with the Building Code when she settled the matter at VCAT, was disingenuous. It was contended that no reasonable person could have an expectation in the circumstances that the plans would be ready for a final building permit at that stage.
2. This statement by Ms Tassell was an articulation of her contractual expectation from Mr McSteen. She said she had paid a lot of money for the plans, and she expected them to be compliant. It is quite understandable that a lay client such as Ms Tassell would adopt this position. Her credit is not impaired by her having taken that stance.
3. Tenth, it was said Ms Tassell's statement at one point that she had never seen the amended plans prepared by her draughtsman on which the building permit had been issued, was false.
4. In fact, Ms Tassell's answer to the relevant question indicated that she probably had the plans at home, she did not know, they were not relevant.
5. This is largely an issue of recollection, and the questioner and answerer being at cross-purposes. Further, the issue it relates to was not demonstrated to be of any real significance. Ms Tassell's credibility is not undermined in this regard.
6. Eleventh, Ms Tassell was criticised for her statement that the specifications provided by Mr McSteen were very general and did not go into brands or finishes. In actual fact, the specifications were detailed and ran to 34 pages. Some detailed specifications of brands and finishes were provided.
7. However, Ms Tassell's statement is correct to the extent she was referring to the stage 2 items (which she was more focussed on) in relation to which her description is accurate. Her credibility in this regard is not diminished.
8. The twelfth matter was Ms Tassell's statement that it was agreed at the VCAT mediation that the architect would supply his CAD file.
9. This refers to a difference between Ms Tassell and Mr McSteen as to what his obligations were following on from the VCAT settlement of the dispute over his fees. It is dealt with in relation to allegations 7 and 8 below. The fact that Ms Tassell took a view which differed from Mr McSteen's does not impair her credibility.
10. Additionally, my assessment of Ms Tassell as a witness overall is that she was honest, and did her best to answer questions put to her, which were often confusing, to the best of her ability. She made concessions where appropriate. Her answers were generally consistent with the documents, and the overall narrative of her position.

1. Ms Tassell was obviously unhappy with the way Mr McSteen handled her retainer. She believed he produced specifications (without consulting specifically on them with her) for obtaining quotations from builders, which were excessive. He chose a number of builders who provided quotations which came out well in excess of her budget bottom line of $400,000.[9] She felt he had preferred his own interests over hers in this regard, since the higher the build price, the higher his fee would be. It is also apparent that Ms Tassell believed certain items should be excluded from the basis on which Mr McSteen's fees were calculated.
2. None of this detracted from her honesty and reliability as a witness, however.
3. In my view, the submissions on behalf of Mr McSteen at times misguidedly tended to equate Ms Tassell having a different view of the circumstances to that which Mr McSteen held, with dishonesty. A similar tendency was apparent in relation to the later submissions that the Board had 'misled' the Tribunal in its written submissions. Again, in general, the matters referred to were not instances of the Tribunal being misled, but rather, differences of opinion, or differences as to the way in which the evidence should be interpreted, on which competing submissions were made by the applicant and respondent.
4. I do accept the submission on behalf of Mr McSteen, that Ms Tassell, who worked as a financial adviser in merchant banking, was financially savvy and comparatively well-equipped, for an inexperienced lay person (in terms of building projects) to achieve the outcome she desired, for the lowest cost she could. She was determined to drive an outcome which was as favourable to her as possible. She was aware of the broad brush estimates Mr McSteen had given in October 2009, of $340,000 - $440,000, plus $65,000 for additional items (albeit that she did not agree that all the components were properly to be included within the calculation for the purposes of determining his fees). But she sought to enlist him in her quest to achieve an outcome which included as many as possible of the items she liked, within her budget of $375,000 - $400,000. She was disappointed he did not engage with her, or work hard enough, in her view, towards that goal, and was unduly influenced by the fact that if the build price went up, so did his fees. Ms Tassell was not going to be a meek client who accepted without question the estimates she was given. She was prepared to use lateral means to achieve her goal.
5. This was reflected in her concerns that Mr McSteen allowed inflated amounts in the specifications which went out to tender. She said she did not receive details of suggested finishes until she received the specifications in June 2012.[10] For example, she said that the specification included a number of PC (prime cost) items totalling $31,000, on which she ultimately spent only $10,158. She also said the 'Cabinetry allowance' of $55,000 was never discussed with her, and she regarded it as excessive, given her limited budget.

1. Mr McSteen's evidence, and indeed the whole presentation of his case, was strongly infused with his sense of grievance, arising out of what were bluntly described as her attempt to 'defraud' him of the fees to which he was rightly entitled. Much of Mr McSteen's concern results from actions which Ms Tassell took after the periods the subject of the allegations in this case.
2. It was apparent from hearing Mr McSteen's evidence that he had rehearsed many times in his own mind his version of events, and his view that Ms Tassell was unreasonable and dishonest. I do not find that he was dishonest, but I prefer Ms Tassell's evidence in relation to the question of whether the 2009 agreement was handed to her on 23 December 2009, and also, in terms of extent to which she had conveyed to him that she wanted the 'higher end finishes' regardless of the effect it had on her budget.

1. The evidence of Mr Lorenzini and Mr Woolcock largely related to the process which Ms Tassell went through to obtain final building approval after she had terminated Mr McSteen's services, namely the unsuccessful application to the BAB, and ultimately, the adoption of an 'alternative solution'.

1. Mr Robert Caulfield is an experienced and high-profile architect. He was the founder of Archicentre and is a former national president of the RAIA. In 1988 Mr McSteen joined Archicentre as a consultant, and Mr Caulfield has known him since then. Mr Caulfield gave examples of the way in which he, or other architects in his experience, dealt with changing a retainer from a fixed price to a percentage basis, and also about situations where he, and the client had different views about what the likely build cost of a project would be. His answers tended to relate to the commercial realm, however.

Allegation One - breach of section 32 (c) of the Architects Act 1991

In or about October 2009 you were guilty of unprofessional conduct, within the meaning of paragraph 32(c) of the Architects Act 1991 in that, in relation to the design of additions and alterations to [address] North Fitzroy (Site), you failed, as soon as practicable after a change to the terms, conditions and/or scope of your engagement with Lucinda Tassell (Client), to set out in writing the change and to supply a copy of that document to the Client, in breach of regulation 14 of the Architects Regulations 2004 (Regulations) and pursuant to regulation 16 of those Regulations you were therefore guilty of unprofessional conduct.

1. In or around July 2005 the Client engaged you to provide architectural services for alterations and additions at the Site.
2. In or around August or September 2009 the scope of your engagement was changed to include full architectural assistance for alterations and additions at the Site.
3. You did not set out in writing a change of scope to your services, and/or you did not provide the Client with a copy of the document evidencing the agreement.

Allegation Two - breach of section 32(a) of the Architects Act 1991

In the alternative to allegation one above, in or about October 2009, you were careless or incompetent, in your practice as an architect, in relation to the design of additions and alterations to [address], North Fitzroy (Site) within the meaning of paragraph 32(a) of the Architects Act 1991 in that you failed, as soon as practicable after a change to the terms, conditions and/or scope of your engagement with Lucinda Tassell (Client), to set out in writing the change and to supply a copy of that document to your Client.

i. Refer to the particulars to allegation one above.

1. It was common ground between Mr McSteen and Ms Tassell that in August or September 2009 they verbally agreed to change the scope of services to be provided by Mr McSteen from a partial service (for a fixed fee of $12,500) to a full service (for a fee of 12.5% of the build cost).
2. The issue for determination in relation to allegation 1 is whether Mr McSteen had set out in writing, the description, terms and conditions of the engagement or the change in those terms and conditions, and supplied a copy of that document to the client, as required by reg 14. The issue for determination in relation to allegation 2 is similar, namely, whether Mr McSteen was careless or incompetent, contrary to s 32(a) of the Act, in relation to the same alleged conduct.
3. There are two aspects to the case concerning allegations 1 and 2. First, whether Mr McSteen had given a fresh RAIA contract to Ms Tassell to sign at their meeting on 23 December 2009. Mr McSteen said he had. Ms Tassell said that did not occur - the first time she saw this document was 38 months later, at the VCAT mediation on 15 February 2013.

1. Second, it was argued that even if the fresh contract had not been provided to Ms Tassell, other documents provided by Mr McSteen to Ms Tassell, in particular invoice no. 8 of 30 September 2009 and the letter of 3 October 2009 (in combination with the earlier explanation in the letter of 12 May 2005 as to what was comprised by 'full service') were sufficient to overcome the contention that reg 14 or s 32(a) had been breached.

Was the contract produced to Ms Tassell on or around 23 December 2009?

1. In considering proof I am required to bear in mind the seriousness of the matter alleged. While it is important that architects properly document the terms and conditions on which they are providing services to clients, the alleged breach does not involve fraud or behaviour at the higher end of unprofessional conduct.
2. I am satisfied, to the applicable Briginshaw standard, that the effect of the evidence overall is that Mr McSteen did not provide the new RAIA contract to Ms Tassell on or around 23 December 2009. In my view, the evidence very strongly points to this conclusion, for the following reasons.
3. I note there was no covering letter or file note produced by Mr McSteen to support his contention that the document was handed to Ms Tassell on 23 December 2009.
4. The alleged agreement was not referred to in any of the correspondence or other communications which passed between Ms Tassell and Mr McSteen for the whole of the period from 23 December 2009 to October 2012. Nor was it referred to in any file notes or other internal documentation of Mr McSteen's which was produced. It was first referred to in the letter from Mr McSteen's solicitors to Ms Tasssell dated 31 October 2012.
5. In particular:
   • There was no follow up by Mr McSteen at all, over the 33 months from December 2009, requesting her to return the signed contract to him.
   • There was no reference to this document by Mr McSteen in his response to Ms Tassell's email of 6 August 2012 querying how the billing works.
   • In her email of 12 October 2012, Ms Tassell stated that a formal amendment to the contract was never signed. Yet Mr McSteen did not in his reply mention that he was relying on the 23 December 2009 document.
   • There was no reference to this agreement having been provided to her in Mr McSteen's letter of 15 October 2012 listing the meetings he and Ms Tassell had had, and listing the changes and enhancements she had requested to the scope of works, and responding to her concerns about his fees.
   • In Ms Tassell's without prejudice letter of 25 October 2012 she stated

The current situation is ... that we have an agreement, which excludes documentation services and percentage fees. Subsequently we agreed to the 12.5% fee for full services but no information was supplied to me as to how this would be applied and what services it would include or exclude.

• Ms Tassell was advised for the first time that Mr McSteen contended that a new agreement had been provided in December 2009, in a letter from Mr McSteen's solicitors of 31 October 2012. Her response to that, through her solicitors' letter of 9 November 2012, was that she had never been provided with such a document.

1. Ms Tassell's actions between 2009 and 2012 were all consistent with her having not received that agreement.
2. Mr McSteen's position in giving his evidence was that Ms Tassell's statement that she did not receive the 23 December 2009 contract was 'another lie' by her. However, nothing about the content of Ms Tassell's evidence, or her demeanour or the circumstances surrounding these events leads me to conclude that she was lying. I reject that contention made by Mr McSteen in the witness box. Mr McSteen said 'why else would I have had a copy of the contract in my file?' In my view there are other explanations, which, on the evidence, are much more likely. For example, Mr McSteen may have inadvertently omitted to hand Ms Tassell a copy of the new contract at the 23 December 2009 meeting and forgotten to follow the matter up, but subsequently, during the course of the complaint process and the two sets of hearings, formed the firm belief in his own mind that he must have handed it to her. Mr McSteen's assessment of Ms Tassell as being dishonest is, I believe, influenced by his belief that she was seeking to 'defraud' him (as his counsel said) of the architect's fees to which he was properly entitled.
3. Relevant to my finding on this aspect is my conclusion above that Ms Tassell's credit was not impaired in any of the ways contended by the applicant, and that she was an honest witness. In relation to this question, I prefer her evidence to Mr McSteen's.
4. It was argued on behalf of Mr McSteen that a particular statement by Ms Tassell in her email of 12 October 2012 indicated that she had seen the 2009 contract, but not signed it. This was in reference to italicised words in the following paragraph:

When I signed the client/Architect Agreement back in 2005 my budget was approx. $250K, and a partial service was required, we then changed to service Sep 2009, and the budget was assessed more realistically $340K to $440K. A formal amendment to the contract was never signed, but stated in your invoice No 8 Sep 2009, budget $400,000.

1. I do not agree with that submission. These words are quite consistent with Ms Tassell's position that she had never received the 2009 contract. And that is consistent with her other actions and statements, referred to above.

Additional argument - The process for signing of the 2005 Agreement

1. In support of his contention that the agreement was provided to Ms Tassell on 23 December 2009, Mr McSteen referred to the process which had taken place when the first agreement had been signed in 2005. There was a disagreement between Mr McSteen's evidence and Ms Tassell's evidence about the circumstances in which the first agreement was signed. Ms Tassell said that there was a meeting on 2 September 2005 at which she was handed the document and asked to sign it on the spot. It was not provided to her for perusal ahead of time. On the other hand, Mr McSteen said that the meeting was on 1 September 2005. In his reply statement he referred to a letter of 1 September 2005 from him to Ms Tassell which he had located amongst the documents subpoenaed from her. This contained a statement that he had prepared a Client Architect Proposal Form for her to consider and sign, and that he looked forward to explaining this to her at their meeting 'today'. Mr McSteen contended that the fact that the first agreement was dated 2 September 2005 confirms that it was signed the day after his meeting with Ms Tassell.
2. Mr McSteen contends that the evidence shows that Ms Tassell was demonstrably wrong in relation to the procedure for the signing of the 2005 agreement, and that this undermines her evidence about the process carried out in relation to the 2009 agreement. Mr McSteen says these matters support his contention that the same procedure was followed for the signing of both agreements, namely, that Ms Tassell was given the agreement to take away and read, before signing and returning it. He suggests this supports his contention that that is what occurred with the 2009 agreement.
3. In my view, it is not possible to draw definitive conclusions as to what the process was for the signing of the 2005 agreement. Mr McSteen said in his evidence that the letters 'encl' underneath his signature at the foot of the letter dated 1 September 2005 may have referred to the agreement being enclosed, or may have referred to something else. Nor was any diary entry or file note produced to indicate what day the meeting was held on. Nor was there any email coversheet produced to confirm that the letter referred to above was correctly dated 1 September 2005.
4. In any event, I would not regard the procedure adopted for the signing of the 2005 agreement as being particularly probative in relation to the question as to whether Mr McSteen did in fact give the agreement to Ms Tassell on 23 December 2009, over four years later.
5. I regard the other aspects of the evidence listed above as being much more probative as to the question whether Mr McSteen gave Ms Tassell the agreement in 2009.
6. I am satisfied that the Board has discharged its onus of proving to the requisite standard that Mr McSteen failed to provide the new contract to his client. I am comfortably satisfied that the agreement was not provided to Ms Tassell on 23 December 2009, or on any day prior to 15 February 2013.

If the contract was not provided to Ms Tassell, did the other documents nevertheless sufficiently set out the changes to the terms and conditions upon which Mr McSteen would act?

1. Mr McSteen's alternative argument was that in the event the Tribunal finds he did not provide the new agreement to Ms Tassell on 23 December 2009, the other documentation provided to her was in any event sufficient to satisfy his professional obligations, and reg 14.
2. The documentation relied on (other than the 2009 agreement) was:
   • The initial letter from Mr McSteen to Ms Tassell of 12 May 2005, setting out the terms of the partial service and full service options.
   • The RAIA agreement signed by Ms Tassell on 2 September 2005.
   • The conference in 'about August/September 2009' in which it was agreed that the agreement would be changed to 'full service'.
   • Invoice No 8 of 30 September 2009, and the covering letter of 3 October 2009.
3. It is significant that the action of Mr McSteen himself, in drawing up the 2009 document, indicated he regarded a fresh agreement as necessary. Indeed, Mr McSteen's solicitors, in their letter to Ms Tassell dated 31 October 2012 stated, 'the fees due to our client have nothing to do with ... The Client/Architect agreement dated 2nd September 2005 ...'. Also, the VCAT Points of Claim filed on behalf of Mr McSteen on 14 January 2013 stated:

On 23rd December 2009, the Applicant informed the respondent the first agreement was not applicable to the provision of further architectural services as the cost of the building work and the scope of the work on the domestic building project had changed from what had been agreed in the first agreement.

1. This was obviously a very significant change to the previous arrangement. Mr McSteen's total fee would increase from $12,500 to four times that figure (assuming a final build price of $400,000).
2. There were significant differences between the 2005 contractual arrangement and that which Mr McSteen alleged applied from 2009. In the 2009 document, the budget is stated at the bottom of page 1 as being $400,000 (up from $250,000 in the 2005 agreement). Tasks crossed out in the earlier agreement are not crossed out in the latter.

1. This included the key part of the RAIA Client and Architect Agreement relied on by Mr McSteen headed 'Percentage fee' (quoted below). This, of course, had not been completed on the 2005 agreement - it had been crossed out, as that was a 'partial service', fixed price agreement.
2. There are also differences between the terms set out in the 2009 agreement - which Mr McSteen said applied - and the invoices. On page 4 of the 2009 document, the architect's fee was quantified and said to be payable as follows:

(Based on a cost of building work of $400,000 approx) Percentage fees shall be assessed on the final building cost which is defined as the total cost of the works excluding GST but including the cost of any approved, but later, abandoned work.

The fee shall be 12.5% including GST (1/11th) of the cost of building work and shall be assessed as follows:

1. These percentage figures do not tally with invoices 8 - 10 which specify the final two stages of the architect's work as being:
   1. On Site Administration - 12.5%
   2. Contract accounting - 12.5%.

The two final stages together comprised the last 25% of the full architect's service - with completion of the tasks at stages 1 - 8 as satisfying the first 75% of the architect's contractual obligations.

1. The position in relation to invoices 11 and 12 is slightly differently expressed, but still not easily reconciled with the terms of the 2009 document in relation to payment for the final stages of the architect's work. Also, the hourly rates specified (to apply in the event any work was done which would be charged on that basis) were uplifted in the 2009 document, from those specified in the 2005 document.
2. Mr McSteen also referred to the 3 October 2009 covering letter as part of the material which explained the new terms in 2009. That letter does not contain anything which assists in clarifying the contractual position.
3. Thus, the invoices, even when taken in conjunction with the earlier correspondence, in particular, the letters of 3 October 2009 and the initial explanatory letter of 12 May 2005, did not properly explain to the client the contractual basis on which the work was being done. Although it was accepted the parties had agreed in 2009 that the retainer would be changed to full service, for a fee of 12.5% of the build cost, the actual position in relation to many of the details of the contract was left in a confused state. The arrangements set out in a formal RAIA agreement dated 2005 were very substantially altered. In circumstances where no new RAIA agreement was provided to Ms Tassell, the various subsidiary documents pointed to by Mr McSteen were not a satisfactory substitute, in terms of clarifying what the new contractual position was.
4. Mr Caufield gave evidence that in the profession generally, in his experience, there was no single accepted method of changing contractual arrangements between an architect and a client. It could be done by new agreement, letter, email, minutes of a meeting, or a revised fee could be stated in the next account sent out to a client. It might be the case that in particular circumstances, such a method might be sufficient (although architects do need to be very careful in light of the specific prescription in reg 14). But here, for the reasons set out above, the other documents supplied to Ms Tassell did not sufficiently set out the change in the terms and conditions of his engagement in 2009.

1. The failure in 2009 to provide a replacement RAIA contract for that provided in 2005 left the contractual position confused. This was not remedied by the other documents sent by Mr McSteen to Ms Tassell. I find that these acts and omissions by Mr McSteen comprised a breach of reg 14.
2. Regulation 14 imposes requirements more specific than those imposed by the law of contract and general consumer protection law as it relates to the providers of services. It imposes a specific requirement that as soon as practicable after any change to the terms and conditions of his or her engagement, an architect set these out in writing, and supply a copy of 'that document' to the client.[11] This recognises the knowledge imbalance between architects and clients, in particular domestic clients.
3. The regulations go further, and provide that non-compliance with this requirement comprises unprofessional conduct. This reflects the importance which the legislature places on transparency of contractual relations between architects and their clients. Obligations generally of this nature are placed on other professionals as well, such as lawyers.
4. A finding of breach of the reg 14 disclosure obligations necessarily entails a finding of unprofessional conduct (due to the operation of reg 16) and so I find allegation 1 proved.
5. Allegation 2 alleges that the same conduct shows the architect was careless or incompetent in his practice, contrary to s 32(a) of the Act. Given the requirement to provide disclosure which is enshrined in reg 14 constitutes an important duty of an architect, I find that Mr McSteen's failure to do so constitutes careless or incompetent conduct in his practice. So allegation 2 is proved also. However, as it is co-extensive with allegation 1, no additional penalty will apply.

Allegation Three - breach of section 32 (c) of the Architects Act 1991

Between August 2009 and October 2012 you were guilty of unprofessional conduct within the meaning of paragraph 32(c) of the Architects Act 1991 in that, in relation to the design of additions and alterations to [address] North Fitzroy (Site), you failed to perform your work in a competent manner and to a professional standard contrary to regulation 6 of the Architects Regulations 2004.

1. In or around August and/or September 2009 the owner of the Site (Client) engaged you to provide full architectural assistance for alterations and additions at the Site.
2. At the time of your engagement in 2009 your fee for the work was agreed to be 12.5% of the cost of building work based upon your estimate of the cost of building work of approximately $400,000.00.
3. By invoice dated 9 October 2012 you claimed professional fees of 12.5% based on a building cost of $555,660.00.
4. Between September 2009 and October 2012 you failed to adequately inform or consult with the Client regarding the reasons and/or basis for the increase in the estimated cost of the building work from $400,000.00 to $555,660.00.

Allegation Four - breach of section 32(a) of the Architects Act 1991

In the alternative to allegation three above, between August 2009 and October 2012 you were careless or incompetent in your practice as an architect in relation to the design of additions and alterations to [address] North Fitzroy (Site) within the meaning of paragraph 32(a) of the Architects Act 1991.

1. Refer to the particulars to allegation three above.

1. Particulars i, and iii are clearly satisfied. In relation to Particular ii, as noted, the 2009 RAIA agreement document relied on by Mr McSteen, states on page 1 that the budget for the project was $400,000 approx. and on page 4 that it was based on a cost of building work of $400,000 approx. Although I have found that this document was not provided to Ms Tassell, that was the figure which Mr McSteen specified in invoice No. 8, dated 30 September 2009. As noted, that invoice set out the calculation of the fees due at that stage, based on 12.5% of $400,000. A major subject of debate in this hearing was the effect of the letter of 3 October 2009, which referred to a 'low' cost assessment of $340,000, and a 'medium' cost assessment of $440,000, as well as referring to additional items which would further increase the cost. However, that debate concerns Particular iv. It is clear that in its terms, Particular ii is satisfied, in that the agreement in 2009 was based on an estimate of building cost of approximately $400,000.
2. The key issue arises in relation to Particular iv. This alleges that Mr McSteen failed:

Ms Tassell regarding the reasons and/or bases for the increase in the estimated cost used to calculate the amount of his fees due on 9 October 2012.

1. Allegations 3 and 4 do not allege that Mr McSteen rendered a bill for an amount in excess of what he was entitled to charge at that time. Rather, they are directed towards the adequacy of the information given to his client, and the adequacy of his consultation with her, prior to sending invoice No 12 to her. These allegations are of a different nature, and in my view, are a degree less serious than one of rendering a bill in excess of the amount he was entitled to charge at the time. However, they are clearly framed on the basis that better information and consultation was required to be given by Mr McSteen up to the point when he sent invoice No. 12, since it was based on a much higher building cost. The sending of invoice No 12 gives significance to the omissions which are the subject of allegations 3 and 4. So the sending of the invoice is an integral part of the series of events which needs to be considered as part of the analysis of allegations 3 and 4. If Mr McSteen was justified in sending the invoice, then it is highly unlikely that he failed adequately to inform or consult with Ms Tassell about it.
2. The Board emphasised that over a period of about three years (albeit that the project was on hold for financial reasons during some of this period) Mr McSteen led his client to understand that his fees for the project would be based on a build cost of approximately $400,000, which she was determined to achieve, when in actual fact his belief was that it would be significantly in excess of that (at least $550,000).
3. The Board submitted that Mr McSteen was under a continuing obligation to keep Ms Tassell informed when his estimate of the build cost, upon which their fees are based, increased. I accept that proposition. This relates to a fundamental aspect of the role of an architect, namely, to assist the client to come up with a design for a project which is within the client's budget (albeit that the budget might change). The importance of this duty is underlined by the inherent conflict between, on the one hand, the interests of the architect in there being a higher build price, and therefore a higher fee, and on the other hand, the interests of the client, in achieving the lowest possible build price. Further, regardless of the precise contractual position which existed between Mr McSteen and Ms Tassell, it is clear the obligations in clauses 1.3, 1.7, 1.8 and 1.10 of the RAIA Client and Architect Agreement, requiring Mr McSteen to keep his client updated on changes to the anticipated cost of the project, applied here.
4. Mr McSteen's case, in summary, was that he had on a number of occasions made Ms Tassell aware that her budget of no more than $400,000 was unrealistic, in particular, in his 3 October 2009 letter. He referred to subsequent meetings or telephone conversations on 23 December 2009, 27 January 2010 and 18 January 2011, during which he said Ms Tassell had specified additional items or enhancements, all or most of which would increase the price. He said, in effect, she was determined to achieve a 'high end' extension/renovation.
5. When asked why he continued to send invoices up until 30 July 2012 based on a budget of either $375,000 or $400,000, he said he wished to be fair to his client, and not to overcharge her, in the sense of seeking fees in running on the basis of an estimated build cost which turned out to be too high (and hence receiving overpayment of fees).
6. In actual fact, however, he said he did not believe Ms Tassell's budget ever was as low as $375,000/$400,000. Rather, he believed that she was seeking to have that estimated build cost applied to his bills to her, so as to reduce the overall amount of fees he would receive.
7. A great deal of Mr McSteen's case was devoted to analysis and criticism of Ms Tassell's conduct after 9 October 2012. Mr McSteen is firmly convinced Ms Tassell was seeking to deprive him of the fees properly due to him, and that events after the termination of the retainer demonstrated this.
8. However, allegations 3 and 4 relate to the circumstances leading up to 9 October 2012, when invoice No. 12 was despatched, not beyond that. The only relevance to allegations 3 and 4 of Ms Tassell's conduct after that is the extent to which it affects her credit. I have found above that it does not.

1. After the quotes came in, in August 2012, it is clear that differences emerged between Ms Tassell and Mr McSteen. Ms Tassell became concerned that Mr McSteen had not been careful enough to draft the plans and specifications in a way which would produce quotes within, or reasonably close to, her budget of no more than approximately $400,000. Shortly after, she decided to use Mr Glen Johnston, the partner of a good friend of hers, Andrea Johnston, as the builder for the project.
2. Given that Mr Johnston had quoted $347,000 for stage 1, this entailed completing stage 2 or as much of it as possible, and to a standard acceptable to Ms Tassell, for $53,000.
3. Mr McSteen believed this was unrealistic. It was an unusual situation for a client to complete stage 2 of a project as an owner builder in this way. Mr McSteen became suspicious that Ms Tassell was going to spend more than $53,000 on stage 2, but to have those additional works done under the guise of separate contractual arrangements, thus depriving him of his 12.5% fee on any component above $400,000.

1. Mr McSteen's response to this was to send invoice No. 12 on 9 October 2012, based on what he said was his conservative estimate of the likely final build cost, $550,660.
2. The effect of this was to invoice the client for the fee he estimated would turn out to be payable once the final build cost was known (to the stage of 80% completion of the retainer). He sought payment of an extra $15,566 from Ms Tassell over and above what the fee would have been if an estimated build price of $400,000 had continued to be used. In effect, he was rejecting her desire to continue to try to achieve as much of the project as possible for $400,000, and instead imposed his own estimate, rather than wait until the final build price became known.
3. Mr McSteen justified this, in effect, on the basis that the relationship was ended at the point where his work was 75% or 80% completed and a negotiation would need to be conducted, to determine what fees he would finally receive. The problem with this is that the relationship had not ended at that point. Indeed, while there were signs that the relationship was deteriorating, it was the dispatch of invoice No. 12 by Mr McSteen which precipitated the termination of his retainer. Mr McSteen suggested that the nature of the relationship with Ms Tassell was such that by sending the invoice to her, he was not demanding that she 'pay now'. But that is exactly the effect the invoice had. He did not send a draft invoice. As he acknowledged on the final day of the hearing when it resumed part heard, in hindsight, it could have been handled better.
4. During cross examination, Mr McSteen contended that his dispatch of the 9 October 2012 invoice was a response to a request from Ms Tassell to be told what the position was as regards billing. However, no specific evidence was given of any request, after Ms Tassell's email of 6 August 2012. I am satisfied that Ms Tassell was not properly informed about the billing arrangements. No updated RAIA agreement had been provided in 2009. Nor had Mr McSteen advised her that he intended to bill her on the basis of a build price in the vicinity of $550,000 - when she clearly anticipated paying on the basis of a build price of $400,000.
5. Also, to the extent the disagreement as to the likely final build price was caused by Ms Tassell having a different understanding of what items Mr McSteen was entitled to include in the calculation of the build cost of stage 2, Mr McSteen's position is weakened by his failure to clarify the altered contractual position in 2009.
6. Clearly the client had a different view of the range within which the final build price would fall, yet Mr McSteen purported unilaterally to impose his own estimate at that point, rather than wait until it was known.
7. In terms of the conflict between an architect's interest in a higher build price, and a client's interest in a lower one, Mr McSteen's conduct in sending invoice No 12 indicated that he was favouring his own interests above those of his client.
8. In my view, Mr McSteen was not justified in sending invoice No. 12 to Ms Tassell.

Adequacy of the information and consultation provided

1. As indicated, however, while the analysis of Mr McSteen's action in sending out invoice No 12 is necessary as part of consideration of the circumstances overall, and of the cases put by the parties, the key question for the Tribunal in dealing with allegations 3 and 4 is as to the adequacy of the information provided and consultation with Ms Tassell between August 2009 and October 2012 about the likely build cost. In relation to this, Mr McSteen did engage to some extent. But in the context of his dispatch of invoice No. 12 on 9 October 2012, this was inadequate.
2. The communications relied on by Mr McSteen were as follows:
   • (Most significantly) he provided the information in his letter of 3 October 2009 that a 'low' to 'medium' build price would be $340,000 to $440,000. On top of this, specialised commercial type glazing and heating/cooling would cost an additional $40,000, bringing the total to $380,000, or $480,000. Additionally, he had also referred to landscaping costs of $25,000. This would yield an estimate of $405,000, or $505,000. These figures were not, however, based on detailed analysis. Also, as stated, Ms Tassell disputed that some components, for example, landscaping, should be included in the calculation.
   • In meetings on 23 December 2009 and 18 January 2011 and a telephone conversation on 27 January 2010, references were made in general terms to some features which Ms Tassell would have liked to have included in the project being likely to increase the cost.
   • Ms Tassell received further information from Mr McSteen about the build cost when the tenders came in (in August 2012). However, this was not until the end of the period covered by allegations 3 and 4, which is August 2009 - October 2012.
   • In his email of 13 August 2012, in response to Ms Tassell's query why he had based his invoice No. 11 on $400,000 rather than $375,000 as the previous two invoices had been, Mr McSteen said he expected the actual cost to be above $400,000. However, this statement was non-specific and once again, made late in the applicable period.
3. Mr McSteen contended that 'Between 2010 and 2012 various changes were made to the plans and specifications upon Ms Tassell's instructions which added significantly to the cost of the project.'[12] Ms Tassell denied this. She said that the discussions she had with Mr McSteen during this period were general in nature. She did not receive details of the suggested finishes until she received the specifications in June 2012. She said she did not request 'higher grade finishes'. The only specific material she wanted was Travertine tiles. At all times, any reference by her to particular items was subject to the rider that her overall budget was a maximum of $400,000. She was working on the basis that the specifications and finishes used for the purposes of the quantity surveyor's estimate in early 2010 of $375,000 (which she said she did not receive at that time - she only received such information in June 2012) would have been similar to those used for obtaining builders' quotes in June - August 2012.
4. Mr McSteen produced a summary of the various meetings he said he had with Ms Tassell over the life of the project. Little detail was provided, and the form of the summary was consistent with Ms Tassell's statement that such discussions were only general in nature. Mr McSteen also produced a list of the 'high grade finishes' he said were requested by Ms Tassell. This included amounts by which these requests were said to increase the costs over and above those allowed for quantity surveyor's report of February 2010. The total additional cost was $113,700.
5. Ms Tassell's response was that she did not ever discuss specific brands with Mr McSteen, and disputed the amounts he allowed for various items on that summary. She kept a scrapbook of items from magazines, etc, depicting features she might be interested in. She said not all the pictures produced by Mr McSteen as examples of the type of quality finishes she required, had in fact come from her. Some of them she had not seen before the hearing. Again, she said that the type of finish for any one item would be dependent upon whether or not the total build cost could remain within the agreed project estimate of $400,000. She also noted that the actual CPI figure for the period January 2010 to September 2012 relied on by Mr McSteen was 8%, and not 13.3%. This latter assertion was not challenged during the hearing.
6. These two summaries prepared by Mr McSteen do not significantly advance his case. They provide comparatively little detail, and as such, tend to support Ms Tassell's contention that the discussions from which they were derived were only general in nature. Significantly, they were only created some time after those discussions took place.[13]
7. The contemporaneous notes and other documentation produced by Mr McSteen did not provide great support for the contention that Ms Tassell had specified high end finishes, regardless of the cost. Mr McSteen produced three file notes of discussions with Ms Tassell, dated 23 December 2009, 27 January 2010 and 18 January 2011. The notes did make reference to a number of items Mr McSteen said increased the price of the project. However, there was also reference to cost containment, and pushing items into stage 2, to spread the cost. This was consistent with Ms Tassell's position, in effect, that while she would like to include higher end components (and indeed would work hard and apply lateral approaches to achieve this as far as possible) these desires would have to be subject to her budget.
8. The indications given by Mr McSteen up to 9 October 2012 that his fees were going to be based on an estimated build price of $400,000 were much stronger than those to the contrary. The closest thing to a definitive statement of the estimated build price for the purposes of indicating what his fees would be was the amount specified on his invoices. As noted, this was:
   • $400,000 (invoice No. 8 - 30 September 2009)
   • $375,000 (invoice No. 9 - 10 May 2010)
   • $375,000 (invoice No. 10 - 3 December 2010)
   • $400,000 (invoice No. 11 - 30 August 2012)
   • $555,660 (invoice No. 12 - 9 October 2012)
9. I accept Ms Tassell's evidence from her contemporaneous note that on 7 October 2009, that when she queried the $400,000 used for the purposes of invoice No. 8, and said her budget was '350K plus extras of stairs, steel laser cut, glass doors', Mr McSteen replied he would talk to the builder of the Elgin Street project, and work out a budget. Mr McSteen said in evidence that this was 'another lie' by Ms Tassell. However, I accept her evidence on this matter, which was also backed up by her note made at the time.
10. After the quantity survey was done in February 2010, the figure of $375,000 was adopted by Mr McSteen (in accordance with that quantity survey) for invoices 9 and 10. This was despite the fact that the quantity surveyor included a number of items including works to the existing house excluding floor repairs and repainting and Mr McSteen's view that the builder's margin might be $17,500 or $33,000 higher than the quantity surveyor allowed.
11. Mr McSteen produced an amended form of the quantity surveyor's report. This showed an estimated build price of $409,500. Although it was dated 22 February 2010 (in contrast to the $374,500 estimate dated 19 February 2010) Mr McSteen said it was not in fact obtained until 2014. He accepted that the first time Ms Tassell saw it was when it was attached to his witness statement of 24 August 2015. The additional $35,000 was accounted for by a single item in the estimate - an increase builder's margin from $33,000 to $68,000. If this was a figure the quantity surveyor was prepared to adopt in February 2010, it is unfortunate that information was not conveyed to Ms Tassell at that time.
12. I accept Ms Tassell's evidence to the effect that there was inadequate communication with her prior to the specifications for stage 2 items, in particular, being drawn up, and sent out to tenderers, without her input being obtained. This includes the inclusion of prime cost items totalling $31,000, on which she ultimately spent only $10,158, and the 'cabinetry allowance' of $55,000, which she said was excessive, given her budget. Further, I accept Ms Tassell's evidence that she was not given the opportunity to sit down and go through the quotes received from builders. She only received the quotes from the three builders identified by Mr McSteen shortly before the VCAT hearing in October 2015. The fact that she was not provided with copies of these further supports the conclusion that she was not given sufficient information, nor consulted sufficiently.
13. The figure of $350,000 was referred to, rather than some higher figure, in the quote Mr McSteen procured from the building surveyor, Mr Lorenzini. This was dated 22 September 2012. Mr McSteen passed it on to Ms Tassell that day, with advice that it be accepted.
14. Further, Mr McSteen said he deliberately chose a low figure to base his invoices on, to be fair to his client, that is, so was to avoid overbilling. This approach, however, led to the situation where on 9 October 2012, without prior notice, the client received an invoice indicating that his fee would be based on a 39%/45% higher estimated build cost than the figures of $400,000/$375,000 referred to in the communications referred to in the above six paragraphs, purportedly entitling him to receive an extra $15,566 immediately.
15. It was clear the increased figure for Ms Tassell's budget of $550,660, in invoice No 12 on 9 October 2102, was a shock to her. I accept that Ms Tassell's budget was, as she said, never in the range of $550,000. Yet the effect invoice No 12 was to purport to impose a significantly higher budget on her, without having consulted to attempt to seek her agreement to the higher figure.

1. For the reasons stated above, I find that between August 2009 and October 2012, Mr McSteen did fail adequately to inform or consult with Ms Tassell regarding the reasons and/or basis for the increase in the estimated cost of the building work from $400,000 - $555,660.
2. There are some factors which render this failure less serious than it might have been in other circumstances. These are as follows.
3. First, the project was not under active consideration for the whole of that almost three year period. The effect of the effluxion of time is not so significant as would have been the case had the project been under active consideration for the whole of that period.
4. Second, Mr McSteen had given some indications to Ms Tassell that he believed the build price would be higher, albeit inadequate as a basis for dispatching invoice No 12 on 9 October 2012.
5. Third, Ms Tassell was not an unsophisticated or naive client.
6. Fourth, Ms Tassell had given varying indications as to her budget over time - albeit never in excess of $400,000.

1. I find that Mr McSteen's failure to inform or consult with Ms Tassell regarding the reasons and/or basis for the increase in the estimated cost of the building work from $400,000 - $555,660 prior to sending her invoice No 12 on 9 October 2012 was conduct which was not 'to a professional standard' under reg 6. Hence, pursuant to reg 16, it is unprofessional conduct.
2. Mr McSteen's actions in failing to inform, and particularly, failing to consult with Ms Tassell before precipitously sending an account for a fee at least 39% higher than that had been utilised for the prior three years, demonstrated poor communication with his client. His failure to clarify the terms of the new agreement in 2009 left her unclear as to the extent the 2005 agreement, or some amended version of it, still applied, even though the fee structure had significantly altered, such that the fees were now four times what they had been before. Then, for three years from 2009, his invoices referred to an estimated build price of between three $375,000 and $400,000. Despite Ms Tassell's regular statements during this period that her budget was no higher than $400,000, he failed to inform her of his intention to charge her according to a build price in the vicinity of $555,660. Not surprisingly, when she did become aware of this, she was dissatisfied and lost confidence in him. Shortly after, she terminated his retainer. This left her without the option of having the architect who had drawn the plans, and been involved with the project since 2005, supervising the project. As stated, what occurred after that, in terms of actions by Ms Tassell which Mr McSteen perceived as vindicating his view that she had been seeking to avoid paying him the full amount to which he was entitled, are not relevant to allegations 3 and 4.
3. Despite the mitigating circumstances referred to above, which render the conduct less serious than it otherwise would have been, it nevertheless reduces the reputation of the profession in the eyes of the public, and in the particular circumstances of this case, is conduct in dealing with a client, which does not satisfy the 'professional standard' required by reg 6.
4. I do not regard this as a matter which requires expert evidence to be proved. The conduct here does not raise technical questions about the exercise of architectural skill in drawing plans, making measurements, calculations or the like. It concerns the manner in which the architect has chosen to deal with his client.
5. I find allegation 3 proved.

1. Turning to allegation 4, the question for consideration is whether Mr McSteen's failure adequately to inform and consult comprises carelessness or incompetence in his practice. Allegation 4 was expressed as an alternative to allegation 3. In my view, allegation 4 is to be regarded as being directed towards matters akin to negligence in carrying out architectural functions. That is not what the focus of the case against Mr McSteen has been. It has concerned the actions he has chosen to take in his dealings with his client relating to billing, the provision of information and consultation, rather than technical questions about alleged mistakes in drawing plans and specifications, etc. I am also conscious that 'mere professional incompetence' is not enough to constitute a basis for disciplinary action - there must be something more, for example, gross negligence.[14]
2. I find allegation 4 not proved.

Allegation Five - breach of section 32(c) of the Architects Act 1991

Between on or about August 2009 and October 2012 you were guilty of unprofessional conduct within the meaning of paragraph 32 (c) of the Architects Act 1991 in that, in relation to the design of additions and alterations to [address] North Fitzroy (Site), you failed to perform your work in a competent manner and to a professional standard contrary to regulation 6 of the Architects Regulations 2004.

1. In about August or September 2009 you were engaged by the owner of the Site to perform architectural services being the provision of drawings including plans, elevations and sections, together with other details and schedules to enable the project to be tendered and so that the documents could be submitted for building approval in relation to the design at the Site.
2. The drawings prepared by you did not comply with the Building Regulations 2005 and the National Construction Code such that a building permit could not be issued in relation to the project.
3. The drawings did not comply as follows:

1. The proposed balcony at the rear of the extension did not comply with the fire separation requirements as defined by clause 3.7.1.7 of volume 2 of NCC 2013. 2. The proposed open terrace/balcony at the front of the extension did not comply with the fire separation requirements as defined by clause 3.7.1.7 of volume 2 of NCC 2013.

1. The proposed canopy roof on the first floor of the extension did not comply with the fire separation requirements as defined by clause 3.7.1.7 of volume 2 of NCC 2013.

Allegation Six - breach of section 32(a) of the Architects Act 1991

In the alternative to allegation 5 above, between August 2009 and October 2012 you were careless or incompetent, in your practice as an architect in relation to the design of additions and alterations to [address] North Fitzroy (Site) within the meaning of paragraph 32(a) of the Architects Act 1991.

i. Refer to the particulars to allegation five above.

1. Allegations 5 and 6 are stated to relate to conduct between August 2009 and October 2012. They allege, respectively, breach of reg 6 (work not done to a competent manner or to a professional standard) and s 32(a) (architect is careless or incompetent in his practice).
2. In each case, there was alleged to be a minor non-compliance with fire separation requirements. Although he did not concede non-compliance in relation to the first and second of these, Mr McSteen did in relation to the third, concerning the canopy roof.
3. This of course became an issue for Ms Tassell to grapple with after she terminated Mr McSteen's retainer in October 2012. But Mr McSteen (who had been aware of this issue since approximately 2011) did not inform her. She only became aware of it in February 2013 when advised by her new building surveyor.
4. There was ample evidence to the effect that this is the kind of minor issue which occurs on virtually every project, especially one on a tight inner-suburban site with irregular shaped boundaries such as this.

1. I am satisfied that the fact that the drawings prepared by Mr McSteen did not attract full building approval without further steps being required to be taken, does not constitute careless or incompetent or unprofessional conduct.
2. The Board's real concern in relation to these matters was that Ms Tassell was put to such inconvenience and expense as a result of Mr McSteen's response to her requests for assistance to rectify them - after he had invoiced her to the stage of having completed construction drawings.
3. These requests occurred in the context of Ms Tassell having sacked Mr McSteen in October 2012. He had then sued her for his fees. The matter was resolved by negotiation at VCAT on 15 February 2013. It was after this that Ms Tassell demanded that Mr McSteen rectify the plans, such that building approval could be obtained. As described above, he refused to do so. Ms Tassell then went through the process of an unsuccessful BAB application, followed by the adoption of an 'alternative solution' which was approved by a person with appropriate fire engineering qualifications. She also had to hire a draftsman to make manual modifications to the plans. This resulted in frustration, delay and expense for Ms Tassell.
4. However, the allegations as drafted do not refer to that subsequent conduct. They only make the allegation that non-compliant drawings were produced. As stated, that does not comprise careless, incompetent or unprofessional conduct.
5. Accordingly, I find allegations 5 and 6 not proved.

ALLEGATIONS 7 AND 8 - REFUSAL TO PROVIDE PLANS IN A FORM IN WHICH THEY COULD BE DIGITALLY MODIFIED

Allegation Seven - breach of section 32(c) of the Architects Act 1991

In March 2013 you were guilty of unprofessional conduct within the meaning of paragraph 32 (c) of the Architects Act 1991 in that, in relation to the design of additions and alterations to [address] North Fitzroy (Site), you failed to perform your work in a competent manner and to a professional standard contrary to regulation 6 of the Architects Regulations 2004.

1. The drawings prepared by you and provided to the owner of the Site for the purpose of applying for building permit approval did not comply with the Building Regulations 2006 nor the National Construction Code.
2. In or around 6 March 2013, the owner of the Site requested the drawings in a format in which they could be digitally modified in order to make modifications to them as required to be made to comply with the fire rating provisions of the NCC and the Building Regulations 2006.
3. On or about 6 March 2013, you refused to provide drawings, in a format in which they could be digitally modified, to the owner of the site.

Allegation Eight - breach of section 32(a) of the Architects Act 1991

In the alternative to allegation seven above, in March 2013 you were careless or incompetent in your practice as an architect in relation to the design of additions and alterations to [address] North Fitzroy (Site) within the meaning of paragraph 32(a) of the Architects Act 1991.

Refer to the particulars to allegation seven above.

1. In contrast to allegations 5 and 6, allegations 7 and 8 relate to Mr McSteen's later conduct - in March 2013. They are directed towards his refusal, on or about 6 March 2013, to provide to Ms Tassell drawings in a format which could be digitally modified.
2. The gravamen of allegations 7 and 8 is that notwithstanding the resolution of the VCAT proceedings, Mr McSteen remained under a duty to Ms Tassell to provide her with plans in electronically alterable form, which would enable her to obtain building approval. In this regard, the Board noted that Ms Tassell had paid Mr McSteen's fees (the amount of these having been determined by negotiation in the VCAT proceedings) up to the stage of preparation of completed plans, and it was clearly implicit that to be complete, these plans would have two be in a form which attained building approval. The Board also noted that Mr McSteen had been aware since at least 2011 that the plans were non-compliant.
3. A number of contentions were put during the course of Mr McSteen's evidence, and in submissions made on his behalf. It was first contended that 'The matter had been settled and there was no further responsibility that Mr McSteen owed to Ms Tassell in his "work as an architect"'.[15]
4. This contention was not explicitly put on the basis that any and all of Mr McSteen's obligations were brought to an end by the release at clause 5 of the terms of settlement signed by Mr McSteen and Ms Tassell at VCAT on 15 February 2015. In any event, in my view, that is not a basis on which allegations 7 and 8 would be defeated. Those terms of settlement were in the standard form provided by the VCAT Domestic Building List (as it was). They contain a mutual release clause whereby each party discharges the other from all claims, etc, arising out of or connected with the subject matter of the dispute.

1. Despite the release in the terms of settlement, Mr McSteen accepted that he was under an obligation to provide additional material to Ms Tassell after the matter was settled. In his witness statement of 24 August 2015, Mr McSteen said 'I did provided [sic] CAD drawings to Tassell which was what she requested and what was agreed to when my claim against her was settled at VCAT'.[16] Further on, he said 'the settlement agreement at VCAT was to supply working drawings to Tassell'.[17]
2. The statement by Ms Tassell's solicitor in the 1 March 2013 email to Ms Tassell's lawyers, 'we look forward to receipt of the drawings once our client's settlement cheque has cleared' is also consistent with the existence of this obligation. It is clear that the basis on which the parties proceeded was that Ms Tassell would continue with her project, utilising Mr McSteen's plans. This would obviously entail the making of any alterations to them as became necessary as the project proceeded.
3. Rather than relying explicitly on the release, however, the submission on behalf of Mr McSteen that he owed 'no further responsibility' to Ms Tassell after their dispute had settled, was made on the basis that he did have obligations to provide plans to Ms Tassell in March 2013, and that he had complied with them.
4. It was argued that Ms Tassell's request made through her lawyers was properly interpreted as seeking plans in non-electronically alterable form, rather than in electronically alterable form. This was in reference to the wording of the above quoted request by Ms Tassell's lawyers of 1 March 2013, in particular the statement that they looked forward to receipt of the 'drawings'.
5. There was much discussion during the hearing about the difference between different terms such as 'drawings', 'working drawings', 'CAD drawings' and 'CAD files'.
6. In fact, these terms were used without precision in correspondence by or on behalf of both parties.[18]
7. It was also contended by Mr McSteen that 'The request for the CAD file was made for the first time on the 6 March 2013.' [19] This is not correct. Ms Tassell had already asked him for 'copies of the drawings in CAD format for use on the project' in her without prejudice letter of 25 October 2012. That was clearly a request for the file in electronically alterable form.
8. I find that regardless of the language used in the email of 12 March 2013 to Ms Tassell's lawyers, or otherwise, it was quite clear to Mr McSteen what Ms Tassell required. She already had the drawings in non-electronically alterable form, and he knew she did, because he had provided them to her.
9. Mr McSteen also said he 'never releases' his CAD files 'because the file could then be altered on someone else's computer and this would infringe the architect's copyright and the architect could be held responsible for inappropriate changes'.[20] In relation to the first of these statements, obviously use of plans with the architect's permission would not involve infringement of copyright. Also, the case on behalf of Mr McSteen ultimately did not rely on the law of copyright. It was said to be irrelevant. In relation to potential liability, an architect will obviously not be liable for changes made to architectural plans by another person after his or her involvement with them has ceased.
10. In any event, in the present case, where the architect/client relationship has ceased prior to the completion of the project, and the client is proceeding with the project utilising the plans that architect has drawn, it is obviously implicit that whatever steps are necessary to finish the project will be taken, including, potentially, changes being made to the plans by persons other than Mr McSteen.
11. I find that as part of the settlement arrangements for the ending of the architect/client relationship, Mr McSteen was obliged to provide Ms Tassell with the plans in electronically alterable form. He refused to do so. The question comes down to whether this constituted a breach of reg. 6 or s 32(a) of the Act.
12. In relation to allegation 7, the key question is whether Mr McSteen failed to perform his 'work' 'to a professional standard', contrary to the second limb of reg 6, by refusing to provide the plans to Ms Tassell in electronically alterable form on or about 6 March 2013.[21]
13. In my view it is clear that in taking the final residual steps required as a result of the settlement, Mr McSteen was still performing 'work' as an architect.
14. It was suggested in effect that by this stage, Mr McSteen's actions in the aftermath of litigation between himself and his client, are not matters for disciplinary action. Certainly, it is not the role of disciplinary proceedings to prosecute or enforce civil remedies against architects on behalf of clients. Here, Ms Tassell took no such enforcement action. It would not have been worth the effort and expense. She went through the process of obtaining a building permit through 'alternative solution'. She also paid a draughtsman $900 to redraw the plans manually. It might be argued that in the circumstances, Mr McSteen was justified in using the leverage he had, following a commercial dispute, to make life more difficult for Ms Tassell.
15. In my view, Mr McSteen's actions are amenable to disciplinary action. As stated, he was still engaged in 'work' for Ms Tassell, when dealing with her request for plans in electronically alterable form. Carrying out work 'to a professional standard' encompasses the manner in which an architect treats clients. Mr McSteen said in evidence that having received the plans in non-electronically alterable form, she could have them altered manually, which is the way in which all drawings were altered prior to the introduction of CAD technology, not so many years ago. This statement by Mr McSteen perhaps exemplified his attitude towards Ms Tassell. It does him no credit. He was seeking to make life more difficult for her.
16. In summary, Mr McSteen agreed that following on from the mediation at VCAT, he was obliged to provide Ms Tassell with a version of the plans. The effect of the case he put was that he and Ms Tassell had agreed at the mediation that he would provide her with something which she already had (and therefore was of no use to her) namely, the plans in non-electronically alterable form. However, that would make no sense, and I have found his obligation was to provide the plans in electronic form, so she could proceed with her project.
17. Mr McSteen was in effect forcing Ms Tassell to go to the expense and inconvenience of having the plans amended manually. Some of the frustrations, delays and additional expenses which Ms Tassell incurred as a result terminating Mr McSteen's services cannot be laid at the door of Mr McSteen. However, those resulting from his refusal to provide plans in electronically alterable form were. Mr McSteen's refusal has the appearance of being spiteful.
18. In my view, such conduct does diminish the reputation of the profession. It was an unwarranted abuse of power he held over Ms Tassell. However, although it clearly falls into the category of professional conduct amenable to disciplinary action (as opposed to conduct legitimately taken in furtherance of his interests in a civil dispute) I do not regard it as being at the serious end of the scale of unprofessional conduct.
19. I find allegation 7 proved.
20. Allegation 8 alleges that Mr McSteen was 'careless or incompetent' in his practice, contrary to s 32(a).[22] Similarly to allegation 4, this is not what the focus of the case against Mr McSteen has been. Again, it has concerned the deliberate actions he has taken in dealing with his client, in relation to the (non) provision of his drawings in electronically alterable form, rather than technical questions about alleged mistakes in drawing plans and specifications, etc.
21. Accordingly, I find allegation 8 not proved.

1. I have found charges 1, 2, 3 and 7 proved. I have found charges 4, 5, 6 and 8 not proved.
2. This matter is to be set down for a further hearing to consider the question of determinations which should be made in light of the above findings.

[1] Given it is not a defined term in the Act.

[2] [1927] SAStRp 9; (1927) SASR 58 at 60 - 61.

[3] In my view, this common law definition is more relevant to architects than cases in the health practitioners' jurisdiction, for example, since 'unprofessional conduct' is given its own particular definition in that jurisdiction.

[4] Mr McSteen's witness statement of 24 August 2015, at [22].

[5] Invoice No. 12 did also state, further down the page, that it was 'Based on an estimated project cost of approx. $400,000'. However, it appears this was an error caused by Mr McSteen failing to amend that figure from the previous invoice. Clearly, the figure relied upon was $555,660.

[6] This appears to be an update from an earlier figure of $525,300 specified in an undated, apparently earlier, document, which was based on a stage 1 cost of $338,800.

[7] In my view, the position is similar to that in relation to the second quantity surveyor's report (see [202] below) which was also misdated, namely that inadvertence is a much more likely explanation for discrepancies in dates, than an intention to deceive.

[8] It is noted that in the specification, 'Landscaping' was listed together with 'window furnishings' as 'items to be supplied by the client'.

[9] In this regard, Mr McSteen pointed out that the other builder suggested by Ms Tassell (apart from Mr Johnston) namely, Mr Hewish, also came out well above her budget, at $424,956 (stage 1) plus $179,579 (stage 2) totalling $604,535.

[10] Witness statement Tassell, 18 September 2015, at [14].

[11] Even if 'that document' could encompass more than one document, I have found the combination of documents relied on was insufficient to satisfy reg 14.

[12] Witness statement by Mr McSteen, 24 August 2015 at [17].

[13] In her second witness statement, dated 18 September 2015 (at [15]) Ms Tassell said these two summaries were prepared on 8 September 2014. This was not contradicted by Mr McSteen.

[14] Pillai v Messiter (No 2) (1989) 16 NSWLR 197 per Samuels JA.

[15] Submission on behalf of Mr McSteen dated 27 November 2015, at [31].

[18] For example, in his witness statement of 24 August 2015, Mr McSteen distinguished 'CAD drawings' from the 'CAD file'. He contended that by providing the 'CAD drawings' (that is, the plans in a format which could not be altered electronically) to Ms Tassell on 5 March 2013, he had satisfied his obligation arising out of the settlement of his dispute with Ms Tassell. Yet in an email on 5 March 2013, his employee, Brett Hudson, said 'We don't release our CAD drawings at any stage regardless of our employment status with our client'. Mr Hudson was clearly referring to the electronically alterable version of the drawings.

[19] Submission on behalf of Mr McSteen dated 27 November 2015, at [30].

[20] Witness statement by Mr McSteen dated 24 August 2015, at [39(iv)].

[21] Noting that Mr McSteen in fact never did provide the plans in electronically alterable form to Ms Tassell.

[22] Similarly to first limb of allegation 7 (which invokes not performing work 'in a competent manner' under reg 6).