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[1999] FCA 60
Federal Court of Australia
1999-02-05
Lindgren J
Original judgment source is linked above.
INTRODUCTION 1 The second named applicant ("Fraser") is a director of the first named applicant ("VFA"). Fraser and his wife are the only directors and members of VFA. Fraser is a distinguished architect. He has practised as an architect since 1963 and is a member of the Royal Australian Institute of Architects ("RAIA"). He has won eight RAIA design awards including the Sir John Sulman Medal and the RAIA National President's Medal for the well known redevelopment of Wharves 4 and 5 at Walsh Bay, Sydney occupied by the Sydney Theatre Company. Fraser has lectured and published journal articles on aspects of design. He established his present practice in 1975, having previously been a director of Ancher, Mortlock, Murray and Woolley. 2 The first respondent ("Shipton") has been a builder and property developer for some thirty-seven years and has been a member of the Master Builders' Association of New South Wales since 1967. The second respondent ("Vega") has been a property developer since 1976. Shipton and Vega are directors of the third respondent ("W-D"). At all material times, Shipton was also a director of a company called Wedderlight Pty Limited ("Wedderlight") and Vega was also a director of a company called Delmo Pty Limited ("Delmo"). W-D is a joint venture company which was formed by Shipton and Vega for the purpose of tendering for, and if successful undertaking, the development project with which the present proceeding is concerned. 3 W-D successfully tendered to become the lessee and developer in respect of a project for the restoration and redevelopment of the Finger Wharf and nearby Wharf No. 11 Woolloomooloo ("the Wharves"). At times this project has been loosely referred to by various names such as the "Finger Wharf redevelopment project" and the "Woolloomooloo Wharf development project" ("the Project"). W-D's tender was for a redevelopment comprising a hotel, residential, commercial, retail and sports resort complex. 4 VFA can be regarded as the alter ego of Fraser. Generally I will not distinguish between them and will speak simply of "Fraser". Fraser provided extensive services in connection with W-D's successful tender. He was initially retained by Shipton and Vega or their respective companies, Wedderlight and Delmo, in December 1991/January 1992. There were ongoing discussions between Shipton, Vega and Fraser over a long period. Fraser expended considerable time and energy in the interests of W-D, not only in creating the winning design for the Project, but in explaining it to, and securing its acceptance by, politicians, bureaucrats and interested groups. His activity continued down to the time when W-D's tender was accepted by the Maritime Services Board of New South Wales ("MSB") on or about 22 March 1993, that is, over a period of some sixteen months, and subsequently. 5 Fraser contends that it was a term of his contractual arrangement that if W-D should win the right to carry out the Project, he was to be the "project architect". His case is that he kept his initial design and drawing fees low on the basis that he was later to be remunerated as project architect if W-D's tender should be accepted. He says that while he was prepared to run the risk that W-D might not win the opportunity to undertake the Project at all, he did not take the risk that he would not be project architect if W-D's tender should succeed. And Fraser had reasons to be confident that W-D's tender would succeed. Not only did he have confidence in his design (he had designed "The Wharf" project at Walsh Bay which had involved heritage considerations similar to those touching the Project), but he also understood that he and his work were looked upon favourably by at least some of the persons who might be influential in the decision-making process. 6 The respondents say that Fraser was only ever retained to do design work and to prepare "presentation drawings", and that the considerable further work which he did, admittedly in the interests of W-D, he did as a business risk, in the hope, certainly, but without any assurance from the respondents that he would be appointed as project architect if W-D's tender should be accepted. The respondents say that in fact, in view of Fraser's efforts, they gave him more than a reasonable opportunity to be appointed as project architect, and were even prepared on that account to agree to something "above market" project architect fees in his case. They say, however, that ultimately he proved intransigent over his fees, which were so much higher than those quoted by the large architectural firm, Peddle Thorp, that the only sensible commercial decision which W-D could take was to retain that firm, rather than Fraser, as project architect. THE PLEADINGS 7 The following is a summary of the third further amendment statement of claim filed in Court on 21 April 1998. What follows, therefore, involves no finding of fact. The applicants plead a case in contract (pars 1-26); misleading and deceptive conduct by W-D in contravention of s 52 (supported by s 51A) of the Trade Practices Act 1974 (Cth) ("the TP Act") and by Shipton and Vega in contravention of s 42 (supported by s 41) of the Fair Trading Act 1987 (NSW) ("the FT Act") (pars 27-35); estoppel (pars 28-36); unjust enrichment (pars 45-47); and quantum meruit (pars 48-50) (the former pars 37-44 were deleted). Contract claim (pars 1-26) 8 In November/December 1991, an agreement was made between the applicants and Shipton on his own behalf and for Wedderlight and Vega on his own behalf and for Delmo, by which Fraser or VFA was engaged as the project architect for the Project ("the Retainer"). The engagement was conditional on Shipton, Vega or one of their companies obtaining the right to lease and redevelop the Wharves from the New South Wales Government or the MSB or both. That condition was satisfied in due course. It was a term of the Retainer that reasonable fees would be paid and that negotiations would take place in good faith to fix the amount of those fees. 9 On or about Tuesday 21 January 1992, the applicants agreed to accept $70,000 as the fee for the design and drawing work up to the Development Application submission stage ("design and presentation drawing work"). That sum was less than the minimum recommended by the RAIA, which was the minimum fee that the applicants usually charged for such work, and was also less than the "reasonable value" of the work. The scale recommended by the RAIA "Standard Conditions of Engagement" for design and presentation drawing work was 12 per cent of 6.75 per cent of the cost of construction. Assuming a total building cost of $106,200,000, the fee for the design and presentation drawing work at the RAIA scale rate would therefore have been $860,220. On the basis of the same construction cost of $106,200,000, the "reasonable value" of that work would have been $656,279 according to the applicants' expert, Douglas Lawrence Gilling ("Gilling"). 10 The applicants' agreement to do the design and presentation drawing work at a reduced rate was either in consideration of Fraser or VFA being formally engaged as project architect and receiving reasonable fees as such if the Project was won, or, alternatively, on the condition that in fact one of them was so engaged and received such reasonable fees. (The ultimate failure of that condition would have the effect that the agreement to do the work at the reduced rate ceased to be binding and freed Fraser and VFA to sue for reasonable remuneration.) 11 On or about 10 February 1992, there was a novation of the Retainer, by which W-D was substituted as proposed developer in place of Wedderlight and Delmo. At or by that time, it was also agreed that VFA was or would be project architect rather than Fraser. 12 Pursuant to the Retainer, VFA designed the Project and produced drawings for it. In further performance of the Retainer, Fraser did numerous other things. For example, he met with politicians to promote the proposal; he liaised with heritage and local action groups; he addressed public meetings about his design, with particular reference to restoration and heritage aspects; he assisted W-D in drafting press releases; he commented on letters proposed to be sent out by W-D concerning the Project; and he liaised with Concrete Construction Group Pty Ltd ("Concretes"), the construction manager for the Project, with Ove Arup Pty Ltd, ("Ove Arup") structural engineers, and with Bachy, a company with expertise relevant to the repiling and repair of the Wharves. These other activities took about 130 hours of Fraser's time. According to Gilling, their reasonable value was $100 per hour, giving a total of $13,000. (Gilling's affidavit shows that this amount of $13,000 was in fact included in the figure of $656,279 mentioned earlier). 13 In September 1992, the MSB invited tenders. On or about 12 October 1992, Fraser agreed for a fee of $15,000 to perform further design and drawing work in connection with the preparation of W-D's tender to the MSB. The amount of $15,000 was less than the minimum rate recommended by the RAIA and was below the amount that VFA usually charged for such work. VFA's agreement to do this further work at the reduced rate was also either in consideration of its being formally engaged as project architect and paid such fees as it should reasonably demand as project architect for the whole of the work, once W-D's tender was accepted, or, alternatively, on condition that in fact it was so formally engaged as project architect and paid such fees. It was a term of the agreement of 12 October 1992 or of the Retainer or of both, that in consideration of VFA's performing the work in connection with preparation of the tender documents for the reduced fee of $15,000, its full fee as project architect, reasonably demanded, would be agreed to by W-D. 14 On 4 December 1992, Fraser, "in the capacity of project architect", attended a presentation by W-D to the MSB. On or about 22 March 1993, the MSB accepted W-D's tender, and W-D commenced negotiations with the MSB for a lease of the Wharves. W-D and the MSB subsequently concluded a lease agreement. 15 The reasonable value of all the work rendered by VFA from and including the design and presentation drawings down to Fraser's attendance at W-D's presentation to the MSB on 4 December 1992 was $656,279. 16 On 29 March 1993 and 27 April 1993, VFA put to W-D fee proposals. The proposed fee was 5.42 per cent of building cost, then estimated at $104,500,000, giving VFA a fee of $5,670,350 "which was understated [by VFA] as $5,669,000 by error" (sic - 5.42 per cent of $104,500,000 is $5,663,900 which is less than both amounts mentioned in the pleading). VFA's fee proposal was fair and reasonable and was substantially below the minimum scale fee recommended by the RAIA, which was in fact a lump sum fee of 6.75 per cent of construction cost (6.75 per cent of $104,500,000 is $7,053,750). 17 On 22 June 1993, W-D accepted VFA's proposed fee of $5,669,000. In the alternative, on 24 September 1993, W-D, in breach of contract or of the terms of the Retainer or of both, refused in bad faith to negotiate for, or to accept, the fee proposed by VFA. W-D wrongfully and in breach of the agreements pleaded, refused to engage VFA formally as the project architect and engaged Peddle Thorp instead. 18 Had VFA received its proposed fee or a reasonable fee as project architect, it would have earned a profit of $2,546,012, or, alternatively, $2,032,514, and Fraser would have benefited as a shareholder of VFA. The amount of $2,564,012 is the net profit from the proposed fee of $5,670,350 as described in a report of the applicants' accounting expert, Brian Patrick Woodward ("Woodward"). The amount of $2,032,514 is the net profit from a "reasonable fee" of $5,156,852 as described in the evidence of Woodward and Gilling.
Misleading and deceptive conduct (pars 27-35) 19 From the initial concept of the Project until 24 September 1993, each respondent stated, represented or promised to VFA and Fraser, that VFA or Fraser was or would be the project architect. Further, or alternatively, on 12 October 1992, each respondent "stated, represented, guaranteed and promised" that VFA's full fee as project architect, reasonably demanded, would be accepted once W-D won the tender. In reliance on these statements, representations, promises and guarantee, Fraser and VFA performed design work and provided other services to W-D in the belief that VFA was or would be project architect and would earn its reasonable fee as such if the Project proceeded with W-D as developer. They would not have done so but for the respondents' conduct mentioned. Further, the work was done by VFA at a reduced fee, and but for the statements, representations and guarantee, Fraser and VFA would have charged the reasonable value of such work. In further reliance on the statements, representations and guarantee, Fraser and VFA deflected enquiries from other potential clients, did not pursue other work, and geared up to undertake the work as project architect for the Project by taking a lease of larger offices at 63 William Street, East Sydney, and by negotiating with three architects to work on the Project. 20 Each of the statements, representations, promises and guarantee was made by W-D in trade and commerce and was false and misleading or likely to be so in contravention of the TP Act. When making them, W-D did not intend to honour them in good faith. Further, each of the representations, promises and guarantee was made by Shipton and Vega in trade or commerce and was misleading or deceptive or likely to be so in contravention of the FT Act. When making them, they did not intend to honour them in good faith. As a result, Fraser and VFA have suffered loss and damage and are entitled to compensation from each respondent. The compensation is the amount of the profit VFA would have earned as project architect, alternatively the amount of the reasonable value of the work done by VFA. Fraser suffered loss of dividends payable to him as a shareholder in VFA.
Estoppel (pars 28-36) 21 By reason of the matters referred to above under "Misleading and Deceptive Conduct", W-D is estopped from denying that VFA is the project architect for the Project and is estopped from denying that it is entitled to act as such and to earn its reasonable fee as such.
Unjust enrichment (pars 45-47) 22 Alternatively, W-D has been unjustly enriched to the extent of the difference between VFA's usual fee for design and presentation drawing work and the fees which VFA agreed to accept, the difference being $755,000. VFA's usual fee was $840,000 but it agreed to accept only $85,000. W-D's profit on the project has been correspondingly increased by the difference of $755,000. 23 Alternatively, W-D has been unjustly enriched to the extent of the difference between VFA's reasonable fee for the design and presentation drawing work and the fees which VFA agreed to accept, the difference being $571,279. VFA's reasonable fee was $656,279 but it accepted only $85,000. W-D's profit has been correspondingly increased by the difference of $571,279. 24 Alternatively, W-D has saved the fee it would otherwise have had to pay another architect for the work done by VFA and has been unjustly enriched to the same extent. Assuming that another architect would have charged at least the RAIA scale, the saving was at least $755,000, or alternatively $571,279, with a corresponding increase in W-D's profit. 25 W-D is liable to "disgorge" the amount by which it has been unjustly enriched ($755,000 or $571,279) and to pay that amount to the applicants.
Quantum meruit (pars 48-50) 26 Further, or alternatively, VFA has done design work and provided services to W-D of a reasonable value of $656,279. VFA allows $85,000 for payment received. The agreement or variation to the Retainer evidenced by the letter dated 21 January 1992 is liable to be set aside by the Court by reason of the misrepresentation of W-D, or, alternatively, by reason of the determination of that agreement or variation for failure of condition. Accordingly, VFA is entitled to set aside that agreement or variation to the Retainer and to recover on a quantum meruit the reasonable value of its work, namely, $656,279, against which VFA allows credit for $85,000 received, leaving a balance of $571,279. THE FACTS 27 Prior to the commencement of discussions between Fraser, Shipton and Vega about the Project in late 1991, the three men already knew each other. Fraser had known Shipton for many years and had done architectural work for him or companies with which he was associated. In particular, he had done architectural work on "The Maltings", a Sheraton Hotel project at Mittagong, for Wedderlight and Delmo, through which he had also become acquainted with Vega. 28 In November 1991, Shipton telephoned Fraser and said that he had been speaking with Vega about the possibility of their redeveloping of the Wharves which were derelict and the subject of a Government policy of demolition. Shipton told Fraser that he and Vega were contemplating a redevelopment incorporating a hotel, residential and commercial elements. 29 Shortly afterwards the three men together inspected the Finger Wharf. They later met at the offices of Shipton and Vega at Paddington. Fraser, who had previously undertaken work in connection with the Wharves for other clients, made some general observations about the Project based on his previous work. 30 On or about 28 November, Fraser received from Shipton's office a copy of a letter dated 28 November from ITT Sheraton ("Sheraton") to Shipton and Vega. The writer on behalf of Sheraton was Bill Edwards ("Edwards") with whom Shipton and Vega had developed a relationship in connection with "The Maltings". Shipton and Vega had spoken and written to Edwards about Sheraton's participation in the proposed redevelopment of the Finger Wharf. The letter expressed interest and included this paragraph: "I and my staff are available at any time to assist in the initial planning and space management planning for the facility. As indicated during our meeting on 25 November I will arrange for our Director of Technical Services to be in Sydney on 9 December to commence this process with the Project Architect, Vivian Fraser." (emphasis supplied) 31 Shipton states that he had told Edwards only that he and Vega had spoken to Fraser about their idea for the Finger Wharf and that he (Fraser) was "interested". 32 At about the same time Fraser received from Shipton's office draft letters addressed to the Honourable Nick Greiner, Premier of New South Wales, and the Honourable Michael Yabsley, Minister for Tourism and State Development. On 29 November, Fraser responded in writing suggesting that Shipton include in his letters to Messrs Greiner and Yabsley the following: "We have accordingly selected an experienced project team which will work with the various heritage bodies and interest groups in developing the detailed design." (emphasis supplied) 33 On 3 December, Wedderlight and Delmo, through their respective managing directors, Shipton and Vega, wrote to Mr Greiner and Mr Yabsley identical letters outlining their proposal. The letters included the following: "A Project Team is in place ready to commence work on the project immediately the Lease Agreement is signed. The Architect will be Vivian Fraser, who has undertaken a number of different Historical projects and has won seven Royal Australian Institute of Architects' Design Awards, six of which have been for restoration projects. The projects include the Sydney Theatre Company at The Wharf (Sulman Medal and Presidents Medal), the Australia Council Headquarters and the Sydney Dance Company Headquarters. The piling Consultant Engineer will be Ove Arup. This Consultant has undertaken an extensive examination of the Wharf and will continue to be associated with the Project. We have entered into an agreement in principle with a major multi national piling Contractor, Bachy, who are ready to commence work immediately upon instruction." (emphasis supplied) 34 Shipton gave Fraser copies of the letters at a meeting. Fraser states that upon reading the paragraph relating to him, he assumed that he was or would be the project architect. Shipton and Vega say that they had not engaged Ove Arup or Bachy, or, for that matter, entered into a contract with Sheraton (which was also mentioned in the letters). They say that their purpose was to assure Messrs Greiner and Yabsley that they were in contact with knowledgeable people in the industry. 35 It is appropriate to interrupt the chronological account of events here to note that any redevelopment of the Finger Wharf would inevitably have to overcome certain difficulties. The Wharf was an old dilapidated timber structure. A particular challenge would be to make the pilings safe and to provide a sound and stable weight-bearing base over water. In addition, the structure is long and thin. Finally, because of the site's prominence and historical interest, heritage considerations could be expected to be influential and to make the Project politically sensitive. In the circumstances, it would be a distinct benefit to a developer undertaking the Project to have Fraser as its architect in view of his having been the multi-award winning designer of the redevelopment of Wharves 4 and 5 at Walsh Bay. 36 According to an affidavit by Fraser sworn on 14 April 1998, only six days before the hearing, in reply to the affidavits in chief of Shipton and Vega, he had meetings with Shipton and Vega on Thursday 12 and Tuesday 17 December 1991, on which he came to rely heavily for his cause of action in contract. He states that on 12 December, after a meeting with the Hon Bruce Baird and the Hon Clover Moore in Parliament House, he, Shipton and Vega went to a coffee shop in Macquarie Street opposite Parliament House, where a conversation to the following effect occurred: Shipton: "We are all going to have to put in our time for this to get anywhere. It may not get off the ground but if it does, it is going to be a great development for all of us. What sort of fee will you need to do the work?" Fraser: "I can't answer that here. I'll look at what has to be done and work out a charge to cover office costs. I'll do it on the same arrangement as 'the Maltings' … I will charge now to cover costs and overheads, and adjust my payments as part of my full fees when the project goes ahead." Vega: "That sounds OK to me." Shipton: "Fine, will you prepare a proposal and get it to us quickly. Keep it low." Fraser: "Sure Bill." (emphasis supplied) 37 (The applicants do not seek to make a case that the parties made a contract which, by reference to "The Maltings" project at Mittagong, imported aspects of that arrangement as terms of the new contract - rather, they rely on the evidence touching The Maltings contract on issues of credit.) 38 Asked about this alleged conversation in the witness box, Shipton and Vega said that the conversation did not occur and that they could not remember the coffee shop meeting at all. 39 According to Fraser's original affidavit sworn 12 February 1996, at a meeting on Friday 13 December (the day after the alleged coffee shop meeting) he and Shipton conversed as follows: Shipton: "Right, we are going to go for this scheme. We're serious. We're going to produce sketches. We believe we're going to get an inside run with the Government. We know you've done previous schemes for the wharf, so that will help you prepare presentation drawings. Now we're all in this together. This is a terrific project. If it works, we'll all make a lot of money out of it. But for now can you keep your costs down as much as possible, to as low as possible? Can you use the drawings that you've done for the other people?" Fraser: "No I can't of course. What I do have though are the base drawings for the building and the thing that will help you and me is my knowledge of the existing wharf, the structure of the wharf and its dimensions." Shipton: "We have limited resources for this stage, but when the project is won, the money will be in place as well." Fraser: "Then I will keep my time down as much as possible and charge you only for my time and for office time until then.I won't charge you the scale rate at this stage." Shipton: "OK." (emphasis supplied) 40 Fraser states that he also said, "I will put a fee proposal to you." 41 Shipton denies saying the words in the passages emphasised in the first passage attributed to him; agrees that Fraser said he would keep his time down as much as possible and charge only for his time and his office time until the Project was won; and denies that Fraser said "I won't charge you the scale rate at this stage." He states, but Fraser denies, that he asked Fraser to give "a competitive price for the work." He states that by saying "OK", he intended only to acknowledge that he and Fraser had not reached agreement, not that they had agreed that he would later agree to a "scale" rate. He states that in his experience "it is common practice within the industry for architects and other consultants to speculate time in the early stages of a proposed project". 42 Vega states that he has "no specific recollection" of Shipton's making the statements attributed to Shipton by Fraser. He states that he recalls Shipton or himself asking Fraser to submit a fee proposal for a full set of presentation drawings describing the proposed scheme "in accordance with the brief provided by Shipton and [himself] and including Sheraton's technical department brief". He states that Fraser did not say that he could not use earlier drawings; that Fraser did not refer to the RAIA scale; and that his reason for asking Fraser for a fee proposal was that he thought that Fraser "would be able to recycle drawings that he had developed for a previous scheme". 43 Later the same day (13 December), Fraser faxed to Shipton a: "[fee] proposal for design & presentation sketches for development of finger wharf and wharf 11 as 250 room resort hotel, with max. no. of serviced apartments, with some retail & commercial space, car parking on the finger wharf and 2 level car park & sporting facilities on wharf 11, with landscape extension from gardens." 44 The document went on to list seven "presentation drawings" followed by a statement that the "level of presentation" was to be "sufficient for discussions with government, hotelier, financiers, the press, and for first costing". The document concluded with the following paragraph: "Fee for the above $70,000.00 Work could commence on 15 Jan'92 First alternative layouts with numbers after 2 weeks Full completion of presentation would take 5 to 6 weeks." 45 There is no suggestion in the document that the proposal of a fee of $70,000 for the work described was conditional or qualified. It will also be noted that the design and preparation of sketch drawings were to be completed by the end of February 1992. 46 The second conversation deposed to for the first time in Fraser's affidavit of 14 April 1998 is said to have occurred the following Tuesday 17 December. Fraser states that on that day he met with Shipton and Vega in Shipton's office when they conversed to the following effect: Shipton: "Viv, you understand there is no guarantee we'll get this. We're taking a punt. If it does work we'll all benefit - but for the time being is there any way you can reduce this submission [a reference to Fraser's proposed fee of $70,000]." Fraser: "Bill, I understand the position. That's why I have agreed to just cover my bare costs for the time being to do the work necessary to produce a scheme to get us the job. The deal is exactly what is working for 'the Maltings'. I simply can't reduce my fee any further." Vega: "Vivian, I am sure you understand our position. We are not asking you to be out of pocket and you must feel comfortable with what is agreed. Our arrangement has worked well on the Maltings and we've now got our DA. I am sure we'll work equally well together on this." 47 Asked about this alleged conversation in the witness box, Vega and Shipton each said that the conversation did not take place and that they did not remember the meeting. 48 Fraser annexes to his affidavit a copy of the RAIA "Fee Guide" which was issued in March 1988. It provides for scales of fees according to "costs of works", the "classification" of the building in question according to the level of architectural work involved, and the "stage" of the work being charged for. The three classifications are as follows: "Classification I Buildings of conventional character. Classification II Buildings involving special or prolonged study or calculation, or requiring the application of special skills and experience or where the architect's work is increased as a result of the nature of the building. Classification III Buildings where the degree of study or calculation, or a requirement for special skills, is reduced by significant consultant input, or where the architect's work is reduced as a result of the nature of the building." 49 Fraser states that the Project fell within Classification II. The percentages were higher as the cost of works fell. Thus, for a Classification II building having a cost of works of $1,000,000, the range appears (from a graph) to have been from 7.7 per cent to 9.75 per cent of project cost, whereas for a building having a cost of works of $60,000,000 in the same classification, the range was from 5.7 per cent to 6.75 per cent of project cost. The "stages" referred to and the percentages for them were: "Schematic design stage 12% Design development stage 13% Contract document stage 40% Contract administration stage 35%" 50 According to Fraser's affidavit, it was his practice to use the RAIA scale as a basis for charging for architectural work. He states that on the basis of a total building cost of $103,700,000 (including re-piling and fitouts), his normal fee for the schematic design stage would have been 12 per cent x 6.75 per cent x $103,700,000, that is about $840,000 (actually $839,970). Fraser states that if "instead of using the RAIA scale of 6.75 per cent of costs of construction", one were to use 5.42 per cent (a percentage to which he was ultimately to come down in his negotiations with W-D), one would arrive at a fee for the schematic design stage of $584,500 which he describes as "a most reasonable fee". In fact this arithmetic in Fraser's affidavit is wrong: the resultant figure is $674,465. But on any reckoning, the fee of $70,000 was very low by reference to the amount resulting from simple application of the RAIA scale to the total project cost. (Annexed to Gilling's affidavit was a new edition of the RAIA fee guide published in October 1991 which differed in relevant respects in minor ways from the earlier edition annexed to Fraser's affidavit but the differences are not of present importance.) 51 Shipton or Vega or both state, in substance, that the RAIA scale was not mentioned, let alone agreed to; that in the period 1991-1993 the building industry was in recession and architects were competing for work and paying little attention to the RAIA recommended scale; and that, in any event, their "budget to complete the project" was only some $60m to $80m. 52 Fraser says that he would not have undertaken the work described in his fax of 13 December for only $70,000 if he had known that he would not be appointed as project architect, or if he had known that Shipton and Vega would not later agree to a fee within the RAIA range. He says that he undertook the design and presentation drawing work for only $70,000, rather than say $584,500 or $840,000, only because he believed from what Shipton and Vega said to him that he would be appointed project architect if they secured the right to redevelop the Wharves, "provided of course that the project fee he requested was not unreasonable". 53 Fraser states that on the basis of what Shipton and Vega had already said to him and on the basis of his having been given copies of the two letters dated 3 December 1991 to Messrs Greiner and Yabsley, he had no doubt whatsoever that he would be Shipton's and Vega's project architect if their development went ahead. Indeed, he states that at the time he believed that he was already "their architect" for the Project. 54 Fraser states that he started to do preparatory work in about December 1991, locating and consulting relevant sketches he had prepared for previous clients and generally applying his mind to the Project. He was ultimately to complete the design drawing and presentation work in about November 1992. The work consisted of, or at least resulted in, the production of ten plans or drawings or sets of plans or drawings. He was assisted by two employees, Paul Demaine and Sharon Fraser, who is Fraser's daughter. Fraser states, based on his thirty-two years of practice as an architect, that $840,000 was a reasonable fee for the schematic design stage; that it was the minimum fee recommended at the time by the RAIA; and that it was the fee which other architects of equivalent standing were charging for similar work. 55 He states that from December 1991 he devoted about ninety percent of his time to the Project and describes the numerous "promotional" activities in which he engaged in W-D's interests. At one stage his evidence was that neither he nor his employees undertook any other work throughout the many months that he was working on the Project, but in the witness box he conceded that this overstated the position. 56 He states that he met with various politicians including the Honourable John Hewson, then Leader of the Federal Opposition; the Honourable Clover Moore, Member for Bligh in the New South Wales State Parliament; the Honourable Bruce Baird, then Minister for Transport in the New South Wales State Government; and the Honourable Michael Yabsley, then Minister for Tourism and State Development in that Government. He states that his purpose was to try to persuade them to "lobby" the New South Wales State Government to change its policy that the existing improvements be demolished and to secure for his clients, Shipton and Vega, the right to redevelop the Wharves. As well, he states that after December 1991 he had meetings and generally liaised with various heritage and local action groups to promote his clients' redevelopment proposal, including the RAIA, the Woolloomooloo Bay Protection Society, the Residents of Woolloomooloo, the National Trust of Australia, and the Friends of the Finger Wharf. He also met with and addressed the New South Wales Trades and Labour Council, and spoke at various public meetings, mostly at the request of Clover Moore or the Friends of the Finger Wharf. He generally spoke or wrote about his design, with particular reference to restoration and heritage aspects. He also corresponded with some of the people, groups and societies mentioned. He estimates that he spent about twelve hours a week doing all these things and engaging in public relations work to promote the Project. He states that he would not have undertaken any of the tasks mentioned if he had not been firmly of the understanding, based on what Shipton and Vega had told him, that he was their project architect and would be formally appointed as such at a reasonable fee if they obtained the right to redevelop the Wharves. 57 In addition, he assisted Shipton and Vega in other respects. He assisted them to draft press releases and he drafted some himself; he commented on letters proposed to be sent out by them about the Project; he liaised with Concretes, Ove Arup and Bachy; and he undertook many other tasks which would normally be undertaken by a "project architect" in relation to a development project of the size and kind in question. 58 The respondents do not dispute that Fraser undertook a considerable amount of work of the general nature described by him over and above the design and drawing work. But Shipton states that work of the kind described is ordinarily "expected of an architect in the initial stage of a project of such a sensitive nature". Fraser disagrees, stating that while "it is not unusual for an architect to liaise with local action groups (but not politicians), the volume of meetings and the intensity of the discussions in which [he] participated for this project were far in excess of what [he] would regard as normal, even for a sensitive project". I think that Fraser's evidence is probably a more accurate description of the true position. The Project was an exceptional one in terms of its prominence in Sydney and its heritage aspects as well as in the architectural challenges it presented, and Fraser was, at a personal and professional level, centrally involved in it. 59 I return to the chronological account of the facts. Fraser, Shipton and Vega met on Tuesday 21 January 1992, when, according to Shipton, he said to Fraser: "Look, I believe that the market rate for the architectural component is about 2% to 3%." 60 According to Shipton, Fraser did not reply. 61 On the same day, 21 January, Fraser wrote to Wedderlight and Delmo referring to recent conversations and meetings with Clover Moore and Bruce Baird. The letter recorded that it appeared to Fraser that the State Government would call for expressions of interest in the redevelopment of the Wharves. The letter emphasised the need for a "fully developed and properly presented scheme" for inclusion in any submission, listed the same seven drawings which Fraser said he would prepare in conjunction with W-D and Sheraton, and concluded: "Production of the above would take approximately 6 weeks. My fee for the work (excluding the model) would be $70,000. Payment of this fee would be for $50,000 to be paid progressively during my production time, with the final payment of $20,000 being made on 01 June 1992. I await your instructions." 62 The respondents rely on the terms of this letter which, like those of the facsimile transmission of 13 December, specified $70,000 as the fee for the design and presentation drawings without qualification or elaboration. 63 Shipton deposes to a meeting the next day, 22 January, at which he said to Fraser: "Now, this fee of $70,000 includes any work which you have done to date. If the project does not proceed or we cannot agree on your fees for the rest of the project, no further fees are due to you." 64 Fraser seems to accept that a meeting took place on 22 January, but is clear that Shipton did not make any such statement. He states: "I am quite certain that Mr Shipton did not say those words to me at the meeting on 22 January 1992 or at any other time." 65 Be this as it may, on 22 January, Wedderlight and Delmo wrote to Fraser: "We have agreed in principle to accept your offer for the design of our proposed redevelopment of the Fingerwharf and acknowledge that the documents you prepare will be up to development application stage. We accept your fee proposal and understand that you will proceed immediately with the work. However, at this stage your work is not to exceed the fee of $10,000.00 until you have our confirmation that we have Bank approval for the funding to cover the balance of your fees. In addition, we request you to arrange a meeting as soon as possible with the model maker. We look forward to working with you on this exciting project." 66 Fraser states that he understood from the last sentence that he "was or would certainly be the project architect if the development went ahead". It suffices to say that this sentence is reasonably capable of referring to the work for which Fraser was engaged by virtue of the acceptance contained in the letter and that I think that on the face of the letter this is its more obvious meaning. The respondents say that the exchange of letters on 21 and 22 January 1992 represents the whole contractual arrangement for fees for the schematic design stage until a variation involving payment of a further sum of $15,000 was agreed to in October 1992 . Shipton and Vega state that the "public relations" work in which Fraser engaged was of a kind commonly carried out by an architect retained to do design and drawing work for a "sensitive" project of the kind in question; that Fraser's "contacts," particularly his contact with Clover Moore, although useful, were not essential; and that by the last sentence in their letter of acceptance, they intended to refer to Fraser's work of schematic design and production of presentation drawings the subject of his fee proposal of 21 January. 67 On 4 February, Fraser wrote to Wedderlight and Delmo purportedly confirming advice that he had come to the point where his office costs had reached the $10,000 level. The letter noted Fraser's understanding that Shipton and Vega would not be meeting with their bankers until the following week "regarding the balance of [Fraser's] fee proposal for the balance of the presentation work". The reference to "the balance" was clearly to $60,000, representing the balance of the sum of $70,000. The letter confirmed meetings arranged with Sheraton and Clover Moore, and Fraser's understanding that he was to continue work so that drawings would be as far advanced as possible for those two appointments. He enclosed an account for $10,000 for "Completion of Stage 1 as agreed". 68 On 10 February, Wedderlight and Delmo wrote to Fraser enclosing payment of $10,000 and asking to be informed when the next $10,000 worth of work was reached. The letter confirmed that Shipton and Vega would be meeting with their bankers later in the week. Finally, the letter stated: "Please note that the company who has engaged you for this project is Wedderlight-Delmo Pty Limited ACN No 055 074 130 and all correspondence should be refered [sic] to this company." (emphasis supplied) 69 Fraser states that he understood the words emphasised to refer to the whole of the Project. Shipton states that when writing the letter, he intended the words "this Project" to refer only to the design and presentation drawing work which had been referred to in Fraser's fee proposal of 21 January. It suffices to say here that I think the latter construction a reasonable one. 70 On or about 12 February 1992, Peter Reid of Concretes supplied to Fraser a document which had been prepared as a discussion paper prior to some meetings with politicians. It included the following: "1. The team is established and ready to proceed: Project Developer - WJ Shipton/J de la Vega Project Architect - Vivian Fraser Development Consultant - Robert C West Construction Manager - Concrete Constructions Piling Contractor - Bachy Hotel Operator - ITT Sheraton 2. The project team is well balanced with experience, financial strength, technical knowledge and proven history in such developments. 3. The architect and developer are experienced in heritage projects. 4. Project design is conceptually complete." (emphasis supplied) 71 On 14 February, Fraser wrote to W-D a letter headed "Woolloomooloo Finger Wharf" which purported to confirm verbal advice that he was "to proceed with the full services on the above which were set out in [his] letter … dated 21 January 1992". The letter enclosed a second interim fee note for $10,000. The fee note stated particulars of the work done for which the charge was made as: "Taking instructions, attending meetings, preparation of sketch design drawings." 72 On or about 19 February, Fraser received a copy of a letter from W-D to the Honourable Bruce Baird, Minister for Transport. Under the heading "The Project Team," the letter described "the full team" including "Project Developer" as W-D and "Project Architects" as "Vivian Fraser". In oral evidence, Vega said that of the six persons and companies listed in the letter as members of the project team, only Fraser had any contract at all at that time. Under the heading "Design Development", the letter stated: "The conceptual design for refurbishment of the Wharf is complete and the architect is well advanced in preparing more detailed drawings. Solutions for the piling and refurbishment of the existing structure of the Wharf are complete and will enable work to commence in October 1992." 73 In oral evidence, Vega said that he could not recall what he had been referring to when advising Mr Baird that the architect was "well advanced in preparing more detailed drawings". Again, Fraser states that he understood the reference to him as Project Architect to confirm that he was already or would be project architect if the redevelopment by W-D went ahead. Again, Shipton and Vega state that they had meant only that Fraser was the architect who was involved at the time and with whom they were in contact. 74 On 21 February, Fraser wrote to W-D enclosing a cumulative account for $35,000 for work done. Again the memo particularised the additional work ($15,000) covered by the memo as: "Taking instructions, attending meetings, preparation of sketch design drawings." 75 According to the memo, only the first of the two interim memos for $10,000 had been paid, so that $25,000 was shown as outstanding, made up of the $15,000 for the additional work done and the second of the two earlier memos for $10,000. Shipton states that the balance outstanding was only the new $15,000 which was paid on 2 March. Fraser insists that the amount of $25,000 was correct. Nothing turns on this conflict. 76 On 11 March, Fraser billed for a further $15,000 and recorded $35,000 as having been paid. These two amounts ($35,000 previously paid and $15,000 for additional work done and now charged for) total $50,000 - the amount that was, according to Fraser's memo of 21 January, to be "paid progressively during ... production time". Accordingly, it seems that the work of production of the presentation sketches was completed on or about 11 March. This is a little, but not much, later than expiry of the period of "approximately six weeks" that Fraser had estimated in his letter of 21 January. By about 11 March therefore, Fraser had completed the work called for by the contract which had been concluded (subject to the novation on 10 February) on 22 January. 77 Also on 11 March, Mr Baird wrote to Shipton advising that the Government had decided that it would be reasonable to reconsider demolition of the Finger Wharf by seeking expressions of interest for redevelopment of the Wharves and their environs. The Minister indicated that he envisaged that the expressions of interest would be called for within a month. Shipton's office sent a copy of the letter to Fraser. Fraser states that after receiving the copy, he intensified his public appearances promoting W-D's proposal because he believed he would be the project architect. For example, on 31 March he attended a public meeting in Woolloomooloo at the invitation of Clover Moore; spoke about his background and his experience on "The Wharf" redevelopment project at Wharves 4 and 5, Walsh Bay; and said that he had been engaged by a developer and had developed a scheme for the Finger Wharf. Vega says that it overstates the position for Fraser to say that he (Fraser) developed the scheme, because he (Vega), Shipton, Concretes, Sheraton, Ove Arup, Bachy and others also contributed. But there can be no serious dispute that Fraser was at the heart of the key designing work. 78 Fraser assisted Shipton and Vega and other persons on their "development team" in preparation of a document called "A Registration of Interest by Wedderlight-Delmo Pty Limited" dated 30 April 1992. Fraser wrote the executive summary for that document, supplied his curriculum vitae for inclusion in it, and provided most of the material in the "Development Proposal" section, including the whole of the "Description of the Development". At Shipton's request, Fraser also supplied a description of the proposal to assist W-D obtain finance. 79 Again, Shipton and Vega say that Fraser overstates his contribution to the Registration of Interest document. They say that all the "consultants" referred to in the document supplied curricula vitae for inclusion in it, and that Fraser's authorial contribution was no more than that which architects with the limited retainer he had at the time ordinarily made to such a document. Fraser disputes this view. He says that his contribution was not only more than what would ordinarily be expected, but that Shipton and Vega required more assistance from him in putting the document together than any other client for whom he had worked on a comparable project. Perhaps the truth lies somewhere between the two assessments, but I think that Fraser's is not far wide of the mark. Unlike other consultants, he was responsible for the overall design. Moreover, there is no suggestion that they engaged in promotional activity with politicians and others as he did. 80 On or about 21 April, Fraser received from Shipton part of a document entitled "Project Costs". It was a "preliminary project cost feasibility" which had been prepared by Concretes. The document gave a total project cost, exclusive of the cost of borrowing, of $131,290,000. Fraser was to use the figures in the document later as the basis for calculating his "project architect's fee." Shipton states that at the time W-D's "construction budget" for the Project was only $80,000,000; that he knew W-D would have to go to competitive tender; and that he believed there were ways in which the amount of $131,290,000 could be reduced. 81 On or about 30 April, Fraser received a copy of parts of column 1 of W-D's Registration of Interest document. It contained numerous references to Fraser or VFA as the architect on the development team. Concretes provided the document to Fraser in draft for checking before completion. He checked it. He states that when he read it, he believed he was certainly going to be the project architect if W-D should be the successful tenderer. He further states that he would not have done the further work which he in fact did if he had known that he was not to be appointed, or, alternatively, that a reasonable fee proposal by him was not to be accepted. 82 On 20 May, Fraser wrote to W-D recommending the consultants to be engaged for the Project, and on 27 May he wrote to the Friends of the Finger Wharf to allay certain concerns of theirs which had apparently been raised at a meeting at the MSB the preceding day. 83 Fraser attended a presentation meeting at the MSB on 26 May and a further meeting with it on 29 May to answer questions, after which he did much further work. Believing that W-D was very likely to succeed, in June 1992 he made calculations of his fees. Based on a project cost of $107,000,000, he chose a rate of 5.75 per cent, being a percentage lying within the RAIA's band for Classification II projects. Using a project cost figure of $95,000,000 he calculated his fee at $5,500,000. He made numerous hand-written notes in contemplation of preparing a fee proposal. However, he did not submit a proposal to W-D yet. He was doing work on the design and presentation drawings (the nature of and reasons for which are not revealed by the evidence) and other things in the interests of W-D. For example, in late June, he suggested amendments to a draft press release prepared by Vega. 84 On or about 20 July, Fraser received from W-D a copy of a letter of that date from W‑D to Clover Moore and read the following paragraph in it: "i The Architect for this project won the Sulman and Presidents medals for his recycling of the Finger Wharf's sister building, Wharf 4/5 at Walsh Bay." (emphasis supplied) 85 The letter was signed by Shipton and Vega, who were clearly exploiting to their advantage Fraser's past achievements and peer recognition. Fraser states that the letter confirmed him in his belief that he "was already for all practical purposes the project architect and that [he] would be doing all of the project work". Shipton and Vega state that their understanding was that he was only "the architect for the project at that stage", that is, for the stage in respect of which there was in place a fee agreement, and not for any further stage. 86 On 29 July, Fraser made some notes for his own purposes. These reveal his thinking about fees at the time. The notes begin as follows: "Woolloomooloo Finger Wharf 29.7.92 MSB program/Heads of Agreement end Dec'92 VF estimate end Nov'92 [therefore] aim at lodge DA docs at end Nov 92 Assume Govt announcement 1 Aug [therefore] 4 to 5 months work to DA" 87 A period of four months would expire at the end of November 1992 and a period of five months would expire at the end of December 1992. Fraser's notes went on to list payments which he would require to be made to him in August, September, October and November totalling "$700,000 in advance of heads of agreement". He then listed amounts to be paid in respect of an environmental impact statement, a heritage report and "social planner" totalling $190,000, giving "say $900,000" to be paid by W-D by the end of November. His notes then recorded the following calculations: "Total fee on $103.7m 6% (11% reduction) = 6 225 000 12% fee now due = 747 000
124 "BUILDING PERCENTAGE VF FEE VF FEE VALUE FEE ON ON BUILDING ON BLDG COST RAIA SCALE COST + FIT-OUT
CONTRACT The applicants' case in contract generally 196 In order to succeed in the case in contract, the applicants must establish that the parties intended to make a binding agreement to the effect of one of those pleaded. In my opinion, the applicants have failed to do so. 197 I will turn later to the particular contracts alleged. In the meanwhile, I will make some general observations touching all of them. 198 First, Fraser's understanding was that the reaching of an agreement as to his fee as project architect was a pre-requisite to his being engaged as such. He made many concessions to this effect in the witness box, including the following: "…Now Mr Fraser, you agree with me there was a risk Wedderlight- Delmo would not accept your fee proposal?---Oh yes. You agree with me there was a risk that if that happened they would have to appoint another architect---Yes. You knew that they were risks that you had been running since November or December 1991 right up until September 1993?---As on any other project. In addition to that, there were risks that Wedderlight-Delmo might not actually get permission to develop the Finger Wharf---Yes, that was clearly discussed at the start too." 199 In this passage, Fraser accepted that there were two conditions precedent to his being project architect: success of W-D's tender and the reaching of agreement on his fee as project architect. 200 Second, Fraser knew or should have known from as early as February 1992 that W-D would not reach agreement on his or anyone else's fees as project architect until it obtained finance and knew the amount available to pay him. 201 Third, it is inherently unlikely in the case of a project of the size, complexity, duration and cost of the Project that a developer would intend to be bound at the early stage claimed by the applicants, to contractual terms of such a general nature as those on which they rely. No estimate of his fees as project architect was provided by Fraser to W-D until 29 March 1993, some sixteen months after the original contract is said to have been made. It is inherently unlikely that a developer would, at such an early stage, commit itself contractually, even to an architect of such high repute as Fraser, to pay his "usual" fee or a "reasonable" fee on such an unusual project. 202 Fourth, Fraser understood that he was not bound contractually to W-D. A telling passage is the following from Fraser's cross-examination: "You also knew that there was a risk that if your proposed fee for the entire project given at a later date was not acceptable to Wedderlight & Delmo then they could engage another architect?---Oh, yes, you - that could work both ways, yes, that always is there." (emphasis supplied) In my view, Fraser did not intend to be contractually bound until the amount of his fee was agreed to. 203 Fifth, after submitting his first fee proposal on 29 March 1993, Fraser recorded in numerous documents his understanding that he lacked an engagement by W-D. I will note some examples. On 14 April 1993, he recorded in his diary: "how can [Shipton] expect anyone to proceed without even a sign of our engagement?" 204 On 27 April, Fraser wrote to W-D requesting immediate confirmation of his engagement as project architect. On 29 April, he wrote to W-D stating that before he undertook extra work he wanted a "clear understanding" from W-D about his "position on the project", and requesting a firm letter of engagement to make his position clear. On 7 May, he wrote to W-D, stating that if Sharpe's proposal as to a fee of 4.5 per cent was serious: "I would have to believe that my engagement as your Architect is not going to continue beyond the schematic design stage now reached." 205 On 4 June, Fraser threatened that unless W-D immediately appointed him as project architect, he would not attend the then forthcoming meeting with Clover Moore. (His diary records Shipton as saying that W-D was not in a position to appoint consultants and records Fraser as saying that he understood this and wanted only a verbal indication.) On 10 June, Fraser wrote to W-D advising: "What I have asked is your verbal assurance that if the project proceeds, that I will be your architect." 206 On 23 June, Fraser concluded his letter to W-D setting out his fee proposal by stating that he trusted that the clarifications in the letter would "allow us to reach agreement on my position". 207 (W-D also relies on Fraser's letter of 27 September 1993 in which he stated that he had been willing to "punt" his services, but, as noted earlier, I am not persuaded to accept that the reference to "punting" in this letter was a reference to anything more than the risk that W‑D would not be the successful tenderer.) 208 It can be suggested of all this evidence that Fraser was merely seeking confirmation of what he understood to be an existing contractual arrangement arising from conduct and the spoken word, or that he was seeking agreement merely as to the amount of that "usual" or "reasonable" fee to which an existing contract between the parties referred. But I think that the preferable view is that Fraser was seeking initial appointment in a situation in which he understood that he was at risk because he had no more than an expectation of appointment. 209 Sixth, in April 1993, Fraser recognised that he was at liberty, if W-D did not accept his fee proposal, to withdraw, that is, not to be project architect. He said so on 14 and 20 April 1993. It may be suggested that what he meant was that he was entitled to withdraw in response to a wrongful repudiation by W-D of an existing contract. This is an arguable view but it perhaps highlights the difficulty of readily accepting that W-D had committed itself to agree to pay Fraser's "usual" fee or a "reasonable" fee within the relevant RAIA band nominated by Fraser. 210 Seventh, I accept the evidence of David Burton Martin ("Martin"), the respondents' expert architect, that in the period 1991 to 1993 there was a recession in property development in Sydney; that there was keen competition between architects in Sydney for retainers of the kind in question here; that developers and architects negotiated over fees; that the chief concern of developers was the lump sum payable, as distinct from how an architect arrived at it or allocated it as between the various stages of architectural work; and that the scales set out in the RAIA Fee Guide had ceased to be a standard to which architects looked and which influenced the amounts charged by them. The approach taken by W-D in the present case is consistent with this evidence. Against this background, it is unlikely that W-D would have intended to contract to pay a "usual" fee or a "reasonable" fee and it would be unreasonable, in the absence of clear evidence, to find that it intended to do so. The first contract - November 1991 to 10 February 1992 The principal claim in contract advanced by the applicants is based on an agreement said to have been concluded between Fraser on the one hand and Shipton and Vega as individuals on the other in December 1991, by which, subject to their obtaining the right to undertake the Project, Shipton and Vega retained Fraser or VFA as project architect for the Project at a reasonable fee. It is said to have been an implied term of the contract that Shipton and Vega "would do all things reasonably necessary to bring about agreement on Fraser's fee" and would negotiate in good faith with Fraser to reach agreement with him. According to the applicants' submissions, it was an express oral term (not pleaded) of the contract that the fee was to be determined according to certain criteria; that it would not exceed the "scale" published by the RAIA; that it would be expressed as a percentage of construction cost; and that it would involve a low initial payment which would cover only Fraser's costs and overheads, and that the full fee would be paid when the project was won. The applicants submit that that there was a novation on 10 February 1992, when W-D was substituted for Shipton and Vega as the client. 211 For their part, the respondents submit that Fraser was engaged to perform architectural services under two contracts. The first was a contract constituted by an offer by Fraser contained in a letter dated 21 January 1992 and accepted by a letter from Shipton dated 22 January 1992. (Although the letter of acceptance was signed by Shipton alone and was on the letterhead of the "WJ Shipton Group", it referred to a meeting between Fraser on the one hand and Shipton and Vegaon the other and said "[w]e accept your fee proposal".) Fraser's letter had identified particular drawings which he undertook to prepare within approximately six weeks for a fee of $70,000. 212 Fraser claims that the first contract, at least prior to any variation of it and prior to the novation on 10 February 1992, was made at meetings between himself, Shipton and Vega on Thursday 12, Friday 13 and Tuesday 17 December 1991. I recounted the parties' evidence in this respect earlier. 213 The propounded first contract involved, relevantly, three elements: that Fraser or VFA was to be project architect for the Project; that the project architect's fees would be the amount "usually" charged by Fraser or alternatively "reasonable" in amount; and that Shipton and Vega or their company (in the event W-D) would negotiate in good faith with Fraser or VFA, as the case might be, to fix the amount. 214 In my view, the background facts make it improbable that Fraser on the one hand, and Shipton and Vega on the other, would have intended at the time to make binding mutual commitments to such an effect. I have earlier referred to the background facts in general. In November 1991 - January 1992, in particular, the Project was an unidentified redevelopment of the old and derelict timber Finger Wharf. This would inevitably be a large, complex, lengthy, costly and politically sensitive undertaking. 215 The Project was "special" and, depending on how precisely it is defined, "unique". Shipton and Vega would be most unlikely to agree to pay Fraser's "usual" fee for such a project, whatever that notion may signify in the present context. The precise nature of the redevelopment, and therefore of the architectural services required, was unknown. Very different views might reasonably be held as to what was "reasonable" remuneration for a project architect on such a project. Different views might be held, for example, as to the extent of architectural involvement in different elements of the Project. Indeed, this was a feature of the present case: Fraser would apply the one rate (he would not come below 5.42 per cent) to all parts of the Project cost, while Peddle Thorp applied 1 per cent to the piling and FF & E elements and 4.8 per cent to the remainder. Again, there might reasonably be a difference of view according to the extent to which an award winning architect like Fraser would be personally involved in providing the services in question. Finally, there might reasonably be a difference of view as to whether a "premium" should be payable for the name and involvement of an architect highly regarded for his achievement in a generally similar project characterised by heritage considerations. 216 The evidence of the expert architects, Gilling and Martin, was that what was a reasonable fee could not be derived simply by application of RAIA Guide. (Gilling was influenced to some extent by the Guide and Martin was not). Both experts approached the matter by addressing the contemporary competitive market in which architects were tendering for projects. There was a wide range of fee levels that might arguably be "reasonable" for a project of the kind in question. 217 The considerations to which I have just referred, together with those identified earlier, create a disposition against finding, in effect, that in November 1991 - January 1992, Shipton and Vega intended to become bound to pay whatever amount a court might find was either the "usual" fee charged by VFA in respect of such a project, or a "reasonable" fee for it to charge for the Project. I think that Shipton and Vega would have wanted to retain control over the amount of the fee for which liability was to be incurred and that Fraser should have understood that they wanted to do so. 218 Against the above background, I turn to consider the evidence on which the applicants rely and of which I gave a detailed account earlier. The three men were enthusiastic about the Project. For Fraser it no doubt posed a particular challenge and professional opportunity: to repeat his widely praised achievement on Wharves 4/5, Walsh Bay. Fraser was the only architect involved and he was heavily involved. Obviously, he would have the "inside running" in relation to the opportunity to be appointed as project architect. Fraser expected to be appointed. It is difficult to identify with confidence the state of mind of Shipton and Vega on the subject. They knew that a process of negotiation with Fraser would be involved - something to which Fraser does not appear to have given much thought until he was forced to do so. I think that in so far as they thought about the matter at all Shipton and Vega hoped to appoint Fraser and thought that he would be flexible over the amount of his fee and would be appointed. 219 Shipton and Vega were anxious to keep the fee for the design and presentation drawings for which liability had, inevitably, to be incurred immediately, down to a minimum. Indeed, from start to finish, they attempted to cut costs. In my opinion, they would not have agreed, in November 1991 - January 1992, to pay a "reasonable" amount for even the design and presentation drawing stage for reasons of the same kind mentioned above in relation to the "project architect's fee". It could not be known as early as November 1991 - January 1992 how much developer's profit there would be in the Project and therefore how much Shipton and Vega could sensibly agree to pay Fraser for design and presentation drawing work over and above the sum of $70,000. 220 In my view, if Fraser had said to Shipton and Vega that he would undertake the design and presentation drawing work for $70,000 only on the basis that if they were awarded the opportunity to undertake the Project, they would retain him as project architect at a fee of 5.42 per cent of project cost or, alternatively, that a fee of some $840,000 or $656,279 be paid to him for the design and presentation drawing work, in either case credit being given for the sum of $70,000 paid, Shipton and Vega would not have agreed. They would either have declined outright to deal with him further or would have set in train inquiries of the kind that were in fact ultimately made on their behalf. They would have found that they could do better than agree to pay a project architect's fee of 5.42 per cent of project cost. 221 I also accept Martin's evidence that for design and presentation drawing work alone, and as a stand alone service, the sum of $70,000 was not unreasonable. Martin gave evidence, which I accept, that at the time with which we are concerned: · developers who engaged architects for an entire project were concerned with the overall amount of the fee payable, not with how it had been arrived at and, in particular, not with the part of the total which the architect might have allocated to the schematic design stage (Martin accepted that some architects may well have allocated twelve per cent to seventeen per cent to that stage as the RAIA Guide did); and · that where architects were requested to undertake design and presentation drawing work without appointment as architect for the project as a whole, a variety of agreements were negotiated but that a charge of 12 per cent - 17 per cent of project cost was far above the market. Martin distinguished situations in which it might be agreed that if the project was won, the architect would definitely be appointed as project architect, but at a stipulated fee of which a stipulated sum or proportion would be for the design and presentation drawing work and would become payable on the winning of the tender, the (smaller) amount in fact paid in advance being treated as a payment on account. 222 I turn now to the alleged conversations on which the applicants rely. The first was that on Thursday 12 December 1991 in the Macquarie Street coffee shop. I doubt that this conversation took place in the terms deposed to by Fraser. And even if it did, in my opinion it does not do for the applicants the work that they suggest. Fraser said that he could not say how much his fee for the design and presentation drawing stage would be. When he said, "I will charge now to cover costs and overheads, and adjust my payments as part of my full fees when the project goes ahead" and Vega replied "[t]hat sounds OK to me", the parties did not intend to make a binding agreement but were merely engaging in a preliminary discussion. This is borne out by Shipton's statement, "[f]ine, will you prepare a proposal and get it to us quickly". In my view, Shipton and Vega were expecting the arrangement to be the subject of a written agreement. 223 It is not in dispute that a conversation occurred on Friday 13 December, but, as noted earlier, Shipton and Vega dispute some aspects of Fraser's version of it. The terms of the conversation suggest that the three men did not consider that they had concluded an agreement the preceding day (12 December) but were still engaged in negotiations precedent to the making of a written proposal by Fraser. Fraser states, but Shipton denies, that Shipton (a) said that the three men would "make a lot of money out of [the Project]" and (b) asked Fraser "for now" to keep his costs as low as possible. Even if Fraser is correct in both respects, his case is not advanced, in my opinion. I do not think that the prediction was somehow a contractual promise to Fraser. Nor, in my view, would the words "for now" signify that a further amount would be payable for the schematic design stage or that Fraser was or would be definitely appointed as architect for subsequent stages. Rather, all that would have been meant is that special strictures affected the schematic design stage arising from the possibility that that work might prove to have been wasted. Similarly, the statement "I won't charge you the scale rate at this stage" is consistent with the meaning that Fraser reserved the right, if engaged for later stages, to seek "the scale rate" in the negotiations. 224 Fraser's facsimile transmission dated Friday 13 December 1991 is important, not only for its qualified quoting of the fee of $70,000 for the design and presentation sketches, but also because of the period which it said the work would take to complete. This was five to six weeks commencing on 15 January 1992. A six week period from 15 January would expire on 26 February 1992. On its face, Fraser's offer of 13 December was to do design work and to prepare seven presentation sketches over some six weeks expiring at the end of February 1992 for $70,000. On the basis of a five day working week and an eight hour day, the rate would be $291.66 per hour. Fraser had working for him at the time his daughter and a draftsman. Nonetheless, the amount of $70,000 is not obviously unreasonably low. We know that at a later time, Fraser calculated a fee based on $150 per hour for himself. If he used the same rate in arriving at his figure of $70,000, on the basis of six five-day weeks of eight hours per day, $141.66 per hour would be charged for the other two employees. On the basis of a five-week, rather than a six-week period, the amount becomes $350 per hour in all, which might have comprised $150 per hour for Fraser and $100 per hour for each of the employees. The evidence does not reveal how Fraser arrived at the fee of $70,000; it suffices to say that in my view it is not shown to be unreasonably low for the work for which it was charged. 225 Fraser alleges, and Shipton and Vega deny, that there was a further conversation four days later on Tuesday 17 December in Shipton's office. I set out that alleged conversation earlier. According to Fraser, Shipton asked him whether he could reduce the sum of $70,000 and he (Fraser) said: "Bill, I understand the position. That's why I have agreed to just cover my bare costs for the time being to do the work necessary to produce a scheme to get us the job." 226 According to Fraser, Shipton replied that he and Vega were not expecting Fraser to be "out of pocket". 227 The alleged conversation is consistent with Fraser's undertaking the schematic design work for $70,000 and absence of a commitment to him for later stages. The reference to "bare costs" is consistent with the reference to "costs and overheads" in the alleged conversation on 12 December. According to the three conversations alleged by Fraser and the fax of 13 December, he informed Shipton and Vega that $70,000 would not see him out of pocket. 228 On 21 January 1992, Fraser again wrote to Shipton and Vega. By this time the three men had met with Mr Baird and Ms Moore and had some inkling of the procedure which the government might follow. In substance, Fraser's proposal of 21 January was the same as that described in the fax of 13 December. Fraser introduced mention of a "model" which he is careful to note is not covered by his fee of $70,000; the time for production of the drawings becomes "approximately six weeks" (apparently from the time of acceptance); and a time for payment is stipulated, namely, $50,000 during the production time and the remaining $20,000 on 1 June 1992. Since the work covered by the proposal would be completed once the presentation drawings were completed (within "approximately six weeks") it is not obvious why payment of the sum of $20,000 was to be delayed until 1 June. 229 By fax the next day, 22 January, Wedderlight and Delmo accepted Fraser's fee proposal. The terms of the fax were set out earlier. They were "formal" and manifested an intention to bring to a conclusion a contractual negotiation. They introduced a new term, however: that Fraser should not do work beyond a level of $10,000 until he had his clients' confirmation that they had bank approval for the funding to cover the balance ($60,000) of his fees. This new term apparently caused no difficulty for Fraser. It does have significance, however, in lending support to the view that Shipton and Vega did not intend, and Fraser could not reasonably have understood them to intend, to be committing themselves to engage him as project architect for whatever fee might be determined by someone other than themselves and their bank to be a reasonable fee. Shipton and Vega made it clear to Fraser that the amount they could outlay depended on the amount of bank finance available to pay it. 230 Throughout their negotiations down to 22 January 1992, Shipton and Vega had sought to confine their liability to Fraser: at the meeting on 13 December 1991, they had asked him whether they could use the drawings that he had done for earlier clients interested in developing the Finger Wharf and had asked him to keep his fees low; according to Fraser, on 17 December they asked him if he could reduce the amount of $70,000; and in the letter of 22 January they introduced the $10,000 stricture just described. Of course, Fraser's case is that this constrictive approach was temporary and was to be compensated for, if and when the Project was won. But I do not find this explanation satisfactory. Certainly Shipton and Vega did not want to waste money on a project that did not go ahead. But it appeared that even after the winning of the Project, their dependence on bank finance would continue. Fraser should have been on notice that they were not the kind of clients who were either disposed or able to be open-handed and easygoing on the question of his fees. 231 On 4 February, Fraser billed Wedderlight and Delmo for $10,000 by reference, implicitly, to their request of 22 January. On 10 February, they paid this first account for $10,000; asked to be informed when the next $10,000 was reached; confirmed that Shipton and Vega would be meeting with their bankers that week; and asked Fraser to note that W-D was now his client. The parties appear to have treated this novation as effective. 232 A period of "approximately six weeks" from 22 January expired about 4 March 1992. By 21 February 1992, Fraser had billed for half ($35,000) of the amount of his fee. In his covering letter, he stated that he was into the "fifth week of production" and that he was hoping "to have the full presentation drawings complete in the next 3 to 4 weeks". On 11 March, he billed for a further $15,000. In his account he referred to the "total agreed fee" as $50,000, no doubt because his letter of 21 January had stipulated that only $50,000 of the total of $70,000 was to be paid progressively during production time, the remaining $20,000 being payable on 1 June. He also referred to the amount already paid as being $35,000. It seems, therefore, that the production of the seven presentation drawings was completed on or about 11 March and that Fraser had, by that time, earned the whole $70,000 but had to wait until 1 June for payment of the remaining $20,000. 233 The various considerations which I have identified lead me to conclude that the parties did not intend to make a contractual commitment beyond that in respect of the design and presentation drawings and that their contract for that work was made in Fraser's letter of 21 January, and Shipton's reply on behalf of Wedderlight and Delmo dated 22 January, supplemented by the novation arrangement made on or about 10 February. 234 The question arises what is to be made of the numerous references which the respondents made to Fraser as their "architect" or "project architect" or as a part of their "team". There is no doubt that they sought to exploit to their advantage their association with Fraser and the high regard in which he was held. Are such statements to be construed as "admissions against interest" that Fraser had, indeed, been retained as architect for the entire Project? I think not. 235 In the present context (admissions against interest) the question is, what was the (subjective) intention of the maker of the statement? I do not think that the statements can be fairly understood as admissions that a contract of retainer had already been entered into. Such a construction of statements made so long before the Project had been won is, to my mind, an unrealistic and improbable one. Rather, I think that the statements were intended to convey to those to whom they were addressed that Fraser was the architect who was "on board" or "advising" at the time in relation to the Project. Similarly, the last paragraph of Shipton's letter dated 22 January to Fraser himself ("we look forward to working with you on this exciting project") is properly to be regarded as a general reference to the architectural work to be done, at that stage only the design and presentation drawing work. But even if that paragraph were properly understood to refer to the whole of the substantive Project, I do not think that a "looking forward to working with [Fraser] on this exciting project" is necessarily an admission that Fraser had already been engaged for the whole of the Project. As indicated earlier, I think that in so far as they may have thought about it at all, Shipton and Vega would have hoped in the period November 1991 to January 1992 that if they won, with Fraser's design, the right to undertake the Project, they would reach agreement with him for the retainer of him as project architect. 236 If, contrary to what I have said above, the respondents meant by the statements to convey to others that Fraser had been retained as the project architect for the entirety of the Project, the statements would have to be taken into account against the respondents as admissions by them. But they would not be determinative of the present issue. In fact, they would still not persuade me to conclude that Fraser had in fact been retained for the entirety of the Project. Rather, I would conclude that the statements were false. 237 It remains to consider three paragraphs of the third further amended statement of claim. The first is para 6 which is as follows: "6. It was a further term of the Retainer [the agreement made in November/December 1991] that the Developer [W-D] would negotiate with [the applicant which performed the work as project architect] in good faith to fix reasonable fees for the work." 238 There is still uncertainty surrounding the question whether an agreement to negotiate in good faith is enforceable at all (the literature on the question is voluminous: recent illustrations are J W Carter and M P Furmston, "Good Faith and Fairness in the Negotiation of Contracts" (1994) 8 JCL 1 and I B Stewart, "Good Faith in Contractual Performance and in Negotiation" (1998) 72 ALJ 370). The question is distinct from the question whether a duty of good faith in performing contractual obligations and exercising contractual rights may be imposed upon parties as part of their contract, as to which, see the helpful recent review of the law by Sheller JA in Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349 (CA) at 363-369. If an obligation to negotiate in good faith is enforceable, it must be "clear and part of an undoubted agreement between the parties": Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd (1991) 24 NSWLR 1 (CA) per Kirby P at 26 (Waddell A-JA agreeing). In this case, as I have said above, I do not think that there was "an undoubted agreement between the parties". The following caution, sounded by E A Farnsworth in a discussion of the American law in this area in "Pre-contractual Liability and Preliminary Agreements: Fair Dealing and Failed Negotiations" (1987) 87 Columbia L Rev 217 at 264, is apposite in my view: "A few courts have gone to considerable lengths in spelling out an obligation to negotiate from unclear language and suggestive circumstances. There have been intimations that such an obligation might be implied in law in the absence of any actual assent by the parties. One may doubt the wisdom of those courts that have strained to find an agreement to negotiate in the absence of a clear indication of assent, for if carried to an extreme this would enable courts to impose a general obligation of fair dealing." 239 While the author considered that courts should uphold "an explicit agreement to negotiate" which the parties clearly intend to be enforceable, I do not find such an agreement or intention here. 240 The second paragraph referred to is para 8 which, omitting particulars, is as follows: "8. The said fee for design and drawing work [$70,000] was at a reduced rate from the minimum rate recommended by the Royal Australian Institute of Architects ('RAIA'), which was the applicant's usual minimum fee for such work and was less than the reasonable value of such work." 241 The reference to the RAIA Scale deposed to by Fraser was allegedly made at the meeting on Friday 13 December 1991 as follows: Fraser: "Then I will keep my time down as much as possible and charge you only for my time and for office time until then. I won't charge you the scale rate at this stage." Shipton: "OK." (emphasis supplied) 242 Fraser says his reference to "the scale rate" was to the percentage scales which formed part of the RAIA Fee Guide. Shipton agrees that Fraser said the first sentence but denies that he (Fraser) said the second sentence in this passage. 243 Assuming that the conversation took place as deposed to by Fraser, I make two observations about it. First, it is consistent with Fraser's indicating that at the stage in question he would not charge by reference to the RAIA scale rate but that when the question of the making of agreements in the future arose, he would, or at least would reserve the right to, call in aid that rate. Second, I do not accept that Shipton's reply "OK" was intended to express his assent to Fraser's charging the RAIA scale rate in the future. Rather, it was, in my view, an assent to the proposition that Fraser would keep his fee as low as possible at that stage but reserved the right to seek a fee by reference to the RAIA scale once the Project was won, and, indeed, reserved the right to insist upon it, if he saw fit to do so, as a condition of his accepting an engagement at that stage. 244 The third paragraph of the third further amended statement of claim to which I referred is para 9 which is as follows: "9. The applicants' agreement to do this work at a reduced rate was in consideration of one of them being formally engaged as the project architect and receiving reasonable fees as project architect if the Project was won, or, alternatively, on the condition that these things occurred." 245 According to Fraser (but not Shipton or Vega) he said at the coffee shop meeting on Thursday 12 December 1991: "I will charge now to cover costs and overheads, and adjust my payments as part of my full fees when the project goes ahead", and Vega replied: "That sounds OK to me." 246 Fraser said, first, that he would charge at the initial stage of design and presentation drawing, only enough to cover his costs and overheads rather than, implicitly, an amount to cover his costs and overheads and some unidentified further amount for "profit". He said, second, that he would "adjust [his] payments as part of [his] full fees when the project [went] ahead". This seems to mean that if and when the Project went ahead, he would credit the payments he would by then have received off the full amount of his fees as project architect, which would include the previously omitted "profit" element on the design and presentation drawing work. 247 The applicants also rely on Fraser's reference at the meeting on 13 December 1991 to his not charging the scale rate "at this stage" and to Shipton's reference at this meeting to their all making a "lot of money" out of the Project "if it works". 248 I do not accept that these passages, if they were spoken, were intended by Shipton and Vega, or should reasonably have been understood by Fraser to have been intended by them, to be a binding promise either to engage him for the entire Project or to pay anything more than the amount on which they might (and were to) agree for the design and presentation drawing work. Fraser was, according to his version of the conversations, representing to Shipton and Vega that his present charge would cover his costs and overheads only and that he was content to rely on the chance of his being engaged as project architect to make his "profit". 249 In the result, Fraser has not shown that any contract as pleaded by him was formed in the period November 1991 - 10 February 1992. 250 There are two alternative grounds on which the applicants' claim in contract fails. The first is that by reason of the absence of agreement in November 1991 to 10 February 1992 (and, for that matter, on the occasion of the making of the second contract in October 1992) on the vital term of the amount of Fraser's fee for his services as project architect, any agreement for his retainer in that capacity was unenforceable: cf May & Butcher Ltd v R [1934] 2 KB 17n. The pleaded contract for the retainer of Fraser as project architect is one that was executory on both sides. It is therefore distinguishable from contracts of which there has been full or partial performance on one side where, as a result, the call of justice for the finding of an implied undertaking to pay a reasonable amount is strong: cf Foley v Classique Coaches Ltd [1934] 2 KB 1; Hillas & Co Ltd v Arcos Ltd (1932) 147 LT 503 and the discussion in Carter and Harland, Contract Law in Australia (3rd ed, 1996) at pars [268], [269]. 251 The second alternative ground on which the applicants' claim in contract fails is that I do not accept that the fee on which Fraser insisted (5.42 per cent of total project cost) was reasonable and that that which W-D offered him was unreasonable. The course of the parties' negotiation is discussed both above and below. Paragraph 18 of the third further amended statement of claim is to the effect that it was a term of the first contract or the second contract or both, that in consideration of VFA's performing the work for the tender documents "for the reduced fee" (of $70,000 and $15,000) VFA's "full fee (reasonably demanded) as the project architect would be accepted by [W-D] once the tender was won". The expression "full fee (reasonably demanded)" is problematical and highlights the difficulty confronted by the applicants. Clearly, the pleader did not intend to refer to the reasonableness of "the manner of demanding". Did the pleader intend to refer to "the full fee demanded" or "a reasonable fee" or "the full fee demanded provided it was within a reasonable range"? Probably the last. It is difficult, if not impossible, to say what is reasonable in the present respect other than by reference to the market at the time. Perhaps a developer would have been prepared to pay a "premium" above the lowest fee available in the market in order to have the benefit of Fraser's name and his ongoing personal attention. Whether it would have been reasonable to do so and, if so, how much would be a reasonable premium to pay are difficult, if not insoluble issues. 252 Gilling, Fraser's expert, considered that a reasonable fee "assessed on a commercial basis" would be 4.25 per cent of construction cost for the "conventional" buildings and 5.05 per cent of construction cost for the Finger Wharf section. Applying these percentages to a total construction cost of $106,200,000, he suggested that a reasonable fee would be $5,156,852 which amounts to 4.86 per cent of total construction cost. Fraser's proposed 5.42 per cent, however, on the basis of a construction cost of $106,200,000, would have given a fee of $5,756,040, nearly $600,000 or 11.6 per cent more than Gilling's reasonable fee. Moreover, while Gilling is a highly qualified and experienced architect, eminent in his profession, he did not, in my view, give adequate weight to the "fee bargaining" that had been a feature of the market for architectural services in the period 1991-1993, although he acknowledged that price competition between architects had become keen by that time. Martin supported the fee charged by Peddle Thorp as reasonable. That was a substantially lower level of fee which was the product of negotiation between a firm which enjoyed the economic efficiencies associated with size, and a client negotiating for the lowest price possible. 253 It is not necessary or appropriate for me to attempt to identify a particular amount as a reasonable fee for Fraser to be paid as project architect. It would be difficult if not impossible to do so. If Fraser had done the work on the basis that he was to be paid but without agreement on fees, a similar task would have been unavoidable. But that is not this case. 254 It suffices to say that I think that the figure supported by Gilling was itself above or at least at the upper end of a "reasonable range" and that in the circumstances, therefore, Fraser has not shown that the fee proposed by him was within a reasonable range. The period between completion on or about 11 March 1992 of performance of the first contract and the making of the second contract on 15 October 1992 255 According to the view I have formed as to the first contract, Fraser had fully performed it by about 11 March 1992. It is clear, however, that he continued to act in W-D's interest after that date. The first contract had not required him to "attend meetings" (except, no doubt, meetings with Shipton and Vega for the purpose of taking instructions from them) but his memos of fees dated 14 and 21 February and 11 March, though not his first memo of 4 February, were expressed to be for, inter alia, "attending meetings". Apparently these meetings were, indeed, with persons other than Shipton and Vega alone, since the three memos (and, indeed, the first dated 4 February) had expressly mentioned "taking instructions" as a separate item of work. 256 From completion of the seven presentation drawings on or about 11 March 1992 to the making of the second contract by the parties on or about 12 October 1992, Fraser continued to attend meetings, write letters and do the other things described earlier, all in the interests of W-D's winning the Project. He did not do so in performance of a contract. He did so, at least partly, in the expectation of one. I will say more of this later. Fraser's acts in this period were not all of a kind, however. While some were directed to assisting W-D to win the support of the authorities for its scheme, others, such as the calculation of fees which he would charge as project architect, he did in his own interests exclusively. 257 In this period, Shipton and Vega had no hesitation in calling on Fraser to provide services to advance their cause with those that mattered. 258 I will return to the question of these services when dealing with the applicants' "unjust enrichment" and "quantum meruit" claims. The second contract - 15 October 1992 259 In September 1992, the MSB issued an "invitation to tender" document and Shipton gave Fraser a copy. It was voluminous. It stipulated requirements which a tender by W-D would have to satisfy. As well, and independently of the MSB requirements, W-D had decided upon certain design changes. All this would call for amendment of the existing drawings. I will refer to all the architectural work required as "upgrading", without implying that the existing drawings were deficient by reference to the first contract pursuant to which Fraser had produced them. 260 There were negotiations between Fraser, Shipton and Vega over the related topics of the content of the upgrading work to be undertaken and Fraser's fee for undertaking it. It is common ground that agreement was reached on 12 October 1992 that Fraser would undertake the upgrading work finally agreed upon for $15,000. Fraser again pleads that the fee of $15,000 was less than the minimum rate recommended by the RAIA Fee Guide and "hence" below the fee usually charged by him for such work. Fraser again pleads that his agreement to do the upgrading work for such a "low" amount as $15,000 was in consideration of his being formally engaged as project architect and of his being paid such fees as he should reasonably demand as project architect for the whole of the Project, or, alternatively, that his agreement to do the upgrading work for that amount was "on condition that this would occur". (According to the alternative, the non-occurrence of the events mentioned has the effect that Fraser did not agree to accept "only" $15,000 for the upgrading work and he is free to recover for that work on a quantum meruit basis.) 261 In my opinion, Fraser has also failed to establish the case pleaded in relation to the second contract. The position is relatively straight-forward. On 24 September, Fraser wrote to W-D outlining "design changes" and the upgrading work called for by the MSB's "tender document requirements" and advising that the work would take about six weeks and that his fee was $25,000, payable as to 50 per cent after three weeks and the balance on completion. On 12 October, Shipton and Vega met with Fraser and said that they could not pay $25,000 and could spend only $15,000. They requested him to "try to contain" his fee to $15,000 accordingly. 262 On Thursday 15 October, Fraser wrote to W-D again advising that work of a reduced scope specified in the letter could be done by Friday 13 November, a reduced period of four weeks, for $15,000 payable as to 50 per cent after two weeks (by 29 October) and as to the remaining 50 per cent on completion (13 November). 263 Shipton accepted this offer by telephone. 264 Fraser billed $7,500 on 2 November and the remaining $7,500 on 19 November. Apparently, then, the upgrading work was completed on or about 19 November. On 23 November, W-D forwarded its tender to the MSB. 265 Fraser states that in fact he did all the upgrading work described in his letters of 24 September and 15 October in the belief that he would be appointed project architect and that his "full fee would be accepted". Whether he did more than the reduced scope of work that he contracted to perform, and if so, whether he did so by reason of his having the belief mentioned, is an irrelevancy. The contract was clear and self contained, in my view. The agreed scope of work was reduced in order to match the figure of $15,000. When giving the chronological account of the facts earlier, I gave my reasons for not accepting Fraser's evidence that if W-D won the tender, it would accept Fraser's full project fee without argument. If, however, Vega did say the words which Fraser attributes to him, the promise expressed in them would have been made otherwise than for valuable consideration and would be unenforceable for this reason. The second contract was for a reduced scope of work commensurate with a fee of $15,000. Fraser did not agree to confer a benefit on W-D or incur a detriment in return for the supposed promise by Shipton and Vega. If he did in fact subsequently perform services worth more than $15,000, the benefit (to the extent of the excess) gratuitously conferred by Fraser on W-D was not sought by Shipton and Vega as consideration for their supposed promise. 266 I do not find the contractual promise or the contractual condition relied on by the applicants in respect of the second contract. The period from completion of performance on or about 19 November 1992 of the second contract to 24 September 1993 267 In the period from completion on or about 19 November 1992 of performance of the second contract to the award of the Project to W-D on or about 22 March 1993, Fraser continued to do various acts in the interests of ensuring the success of W-D's tender. For example, on 4 December he played a significant role at the "presentation meeting" at the MSB described earlier. Also as noted earlier, W-D referred to VFA as its architect for the project and made much of Fraser's repute and experience in its tender. 268 From the award of the Project to W-D on or about 22 March 1993 down to 24 September 1993 when W-D wrote to Fraser finally rejecting his fee proposal, much, though not all, of Fraser's activity in connection with the Project related to the dispute over the amount of his proposed fee. However, he did further work also in this period in the interests of W-D. For example, at W-D's request he met with and spoke to Clover Moore on 10 June and 6 August 1993, attended a meeting of the local branch of the Liberal Party on 29 July 1993 with Vega and examined the consultant team's fee proposals and made recommendations in relation to them. Otherwise, understandably, Fraser was insisting that the issue of his retainer as project architect be resolved before he would do further work for W-D. Yet Shipton and Vega, who, unbeknown to Fraser, were having discussions with Peddle Thorp, accused him of reprehensible conduct when he declined to accompany them to the meeting with Clover Moore on Tuesday 8 June 1993! The third alleged contract - 22 June 1993 269 The applicants plead that on 22 June 1993, W-D accepted Fraser's proposal of a fee of $5,669,000 when Shipton said "Okay". In the course of the chronological account of the facts given earlier, I rejected this aspect of the applicants' case in contract for the reasons there given. MISLEADING OR DECEPTIVE CONDUCT 270 Fraser alleges that W-D, Shipton and Vega made numerous representations to him that he was already, or definitely would be, the project architect for the Project, subject only to W-D's winning the right to undertake it. Moreover, it is said that after 22 March 1993, when the tender was in fact won by W-D, such representations were repeated free of that condition. Fraser submits, however, that Shipton and Vega knew of his fee range from their previous dealings with him on "The Maltings" project and knew that they would never agree to a fee in that range. Fraser therefore submits that Shipton and Vega knew that he would never be appointed as project architect and that their representations to the contrary were misleading or deceptive. According to the claim, Shipton and Vega simply "led Fraser on" so that he would perform work at a reduced fee and act as their spokesman at public meetings and with members of Parliament and others whose support was important in W-D's winning the tender. 271 As explained earlier, in my view Fraser knew that his appointment was subject not only to W-D's winning the right to undertake the Project but also to the reaching of agreement on his fee. However, there were certainly indications that Fraser would be the project architect if agreement could be reached. Implicit in such a representation is a representation that Shipton and Vega did not believe that agreement on fees would not be reached, and therefore did not know of any reason why Fraser would not be engaged for the entire Project. 272 Representations to the effect that Fraser was the "project architect" or part of the "project team" were made almost from the beginning. The applicants particularise them in no less than twenty three paragraphs. For example, as early as 28 November 1991, Edwards of ITT Sheraton wrote to Shipton and Vega advising, inter alia, that he would arrange for Sheraton's Director of Technical Services to meet with "the Project Architect, Vivian Fraser" and Shipton sent a copy of that letter to Fraser shortly afterwards. Similarly, on 3 December 1991, Shipton and Vega sent letters to the Premier of New South Wales and the Minister for Tourism and State Development, advising "[a] Project Team is in place ready to commence work on the project immediately the Lease Agreement is signed … The Architect will be Vivian Fraser". Again, Shipton gave copies to Fraser. There are many other illustrations of the respondents' promoting the Project by stating, to their intended advantage, that Fraser was or would be the project architect for the Project, and of their causing Fraser to be aware of the making of the statements. Many, if not all, of the statements have been referred to in the chronological account of the facts given earlier. 273 The respondents submit that the numerous statements to which I have referred, properly construed, were true when they were made: that is, that at the time Fraser was the project architect in the sense that he was the only architect who had been engaged in relation to the Project, whether or not he would occupy that position for the whole life of the Project. 274 However, this understanding of the statements is not universally available. The letter dated 23 November 1992 from W-D to the Chief Executive of the MSB enclosing W-D's tender document contained the following sentence: "Should Wedderlight-Delmo be successful with their offer the same team will ensure the project is brought to a successful completion." (emphasis supplied) 275 I infer that Fraser received a copy of this letter from W-D's office soon after its date in accordance with the usual practice in relation to documents such as this relating to the Project. 276 Moreover, while such bare expressions as "project architect" and "member of the project team" can be read in the sense of "the architect working on the Project at the moment", doubt is sometimes cast on this interpretation by the context in which the expression in question was used. For example, in a letter from Shipton and Vega to The Hon Bruce Baird, Minister for Transport, dated 19 February 1992, a copy of which was faxed to Fraser, the "Project Team" was said to include Fraser as "Project Architect", and the "Project Programme" was said to involve construction over a period from October 1992 to July 1994. 277 In the present context (misleading or deceptive conduct) the question is, what meaning was conveyed to Fraser? On the view that I have taken, Fraser knew that he had not in fact been engaged as project architect for the entire Project. This creates insuperable difficulty for a cause of action based on a suggested construction to the effect that Fraser had already been appointed. 278 But the applicants rely on the pleaded representation that Fraser "would be" the project architect. This was a "representation with respect to [a] future matter" for the purposes of s 51A of the TP Act. Accordingly, and as a result of the operation of that section, W-D is liable if it did not have reasonable grounds for making the representation. W-D did adduce some evidence that it had reasonable grounds for making the representation. The case was argued therefore on the basis that the decisive issue was whether the applicants established that W-D did not have reasonable grounds for making the representation . Similar considerations to those just outlined apply to the case against Shipton and Vega under ss 41 and 42 of the FT Act. 279 Fraser submits that Shipton and Vega did know of a reason why he would not be engaged as project architect because they knew that he would insist on a fee by reference to the RAIA Fee Guide to which they knew they would not agree. 280 Vega conceded that he and Shipton were never going to agree to a fee as high as 5.42 per cent of construction cost which he said was "way too high". The issue then resolves itself into whether they knew from the start or at any time when one of the statements was made that Fraser would be proposing a fee of that order and would refuse to come down to a fee to which the respondents would agree. If so, they knew that Fraser would not be the project architect and misled him by representing that he would be. 281 In my view, the evidence falls short of showing that Shipton and Vega knew that agreement on fees would not be reached. The following exchange occurred in Shipton's cross-examination: "But if [Fraser's fees] were reasonable you had an obligation did you not to find them acceptable, is that how you understood it? --- No if they were reasonable and were in the scope of percentages that we were expecting, that was going around at the time, which was somewhere around 2 to 3 per cent, that was a sort of fee we had in the back of our minds that the job was worth." 282 A few lines later, Shipton said: "If we could agree on the fees he was going to be the architect." Although, with the benefit of hindsight, it seems that the parties were always unlikely to agree on fees (Fraser considered 4.5 per cent "arbitrary" and refused to move below 5.42 per cent), I think that Shipton and Vega did not believe this to be the case. They had managed to persuade Fraser to agree to what he perceived to be a low fee of $70,000 for the first contract and of $15,000 for the second contract. I think that in so far as they thought about the amount to be paid for project architect's fee if W-D won the Project, they assumed that they would be able to persuade Fraser to come down to an acceptable level as they had done on the first and second contracts. 283 The evidence relating to The Maltings project, even if it had been admitted as relevant to this substantive issue as well as to credit, would not have gone far enough for Fraser's purposes. It would have needed to show, but would not have shown, that Fraser would have preferred to forego appointment as project architect for the Project than to reduce his fee to a level acceptable to W-D. 284 In cross-examination, Vega conceded that his experience of fee agreements in the period 1991-1993 in relation to projects of the size of the Project was limited to The Maltings project in relation to which Fraser was in fact also the project architect. He agreed that it "would [have been] a good idea" when considering what level of fee could be expected in relation to the Finger Wharf to look at the fee agreement on which he had been negotiating with Fraser in relation to The Maltings. 285 Fraser's fee proposal on The Maltings had been contained in a letter dated 27 May 1991, six months prior to the commencement of discussions about the Finger Wharf, addressed to "Wedderlight Pty Ltd and Delmo Pty Ltd" and marked "Attention: Messrs WJ Shipton and J de la Vega". After setting out the work to be performed, the letter continued as follows: "Architectural Fees: For hotel work of this scale, and working within the existing buildings, the Royal Australian Institute of Architects fee is listed at 7.25% for full services. However, I am prepared to reduce this fee by 20% to 5.8%. The fee is divided into the following stages: a) Sketch design 13% of full fee b) Design development 12% of full fee c) Documentation 40% of full fee d) Contract Administration 35% of full fee The work to December this year would proceed to mid way through the documentation period, which would represent a fee of 45% of 5.8%, or 2.16% of the building cost. From this fee I would subtract the fees previously paid to me, in the amount of $60,000.00. The fees would be payable on a monthly basis." 286 Vega gave evidence that the sum of $60,000 was for design. In a letter dated 8 August 1991, addressed to "Wedderlight Pty Ltd and Delmo Pty Ltd - WJ Shipton Group" and marked to Shipton's attention only, Fraser discussed certain payments for preparing drawings and elevations and continued: "This interim stage of my work, which is basically to provide an updated set of presentation sketch documents to DA standard, forms part of the tasks as set out in my letter to you dated 27 May 1991, and the lump sum fee for this first step will be part of the percentage fee proposal as scheduled in that letter." 287 Fraser confirmed that his intention was to charge by reference to the RAIA Fee Guide in a letter dated 14 May 1992, addressed to "Wedderlight - Delmo Pty Ltd - C/- WJ Shipton" and marked "Attention: Messrs Shipton and de la Vega". Fraser discussed difficulties in obtaining Development Approval and continued: "The $93,000 paid to date is for 2 presentation sets of documents, and represents a specially reduced charge against the minimum RAIA fee which will be charged when the project proceeds. I pointed out in my letter dated 08 August 1991, that the interim fees will form part of the proper fee which was set out in detail to you on 27 May 1991." 288 From this evidence, it appears that Shipton and Vega might reasonably have expected that Fraser would seek to charge a fee above five per cent of construction cost. However, The Maltings project did not proceed and an agreement on Fraser's fee in respect of it was never reached. It is therefore not shown that Shipton and Vega should have known that Fraser would refuse to come down to a fee of the order of 4.5 per cent of construction cost on either The Maltings or the Project. Accordingly, the evidence does not establish that Shipton and Vega knew at all relevant times that they would not reach agreement on fees with Fraser and so misled him by the representations mentioned earlier. 289 It is arguable that the situation changed following 29 March and 27 April 1993 when Fraser put his original and revised fee proposals and, in particular, when, on 7 May 1993, he flatly rejected what he described as W-D's "arbitrary fee" of 4.5 per cent of the cost of construction of the building alone. Shipton's evidence is that Fraser had told him as early as 14 April that if he did not accept Fraser's fee proposal, Fraser would "walk away" and would not be his architect. 290 Fraser submits that the respondents continued to use his services from April to September 1993, despite knowing that they would in all probability accept the proposal from Peddle Thorp, their negotiations with whom they had hidden from Fraser. I do not accept the submission. 291 I do not find it necessary to seek to identify the time when Shipton and Fraser first formed the view that agreement would not be reached with Fraser, but note that they continued until the last to reconsider his position. The point is that Fraser ought to have known from the same time, no sooner and no later, that agreement was unlikely to be reached. This precludes a finding of detrimental reliance by the applicants after that time had arrived, whenever it was. 292 In the result, the claim of misleading or deceptive conduct also fails. ESTOPPEL 293 The applicants plead that as a result of the numerous statements referred to under the heading "Misleading or deceptive conduct" earlier in these Reasons to the effect that Fraser or VFA was or would be the project architect and that his or its full fee as project architect would be accepted by W-D if and when it won the Project, and Fraser's and VFA's acting to their detriment in reliance on the statements, W-D is estopped from denying that VFA is the project architect and entitled to act as such and to earn its reasonable fee as such. 294 I accept that Fraser was confident that he or his company would be appointed as project architect. I also accept that without that confidence he would not have provided all the time, energy and expertise which he undoubtedly gave in the pursuit of the interests of W-D. It is readily understandable that Fraser would have been bitterly disappointed at the ultimate turn of events. 295 In making the numerous statements that they made to Fraser at the times when they made them, Shipton and Vega were not, however, representing to him that he already was or certainly would be project architect. What they were representing to him is to be assessed against the background of what he and they knew on the subject of his retainer which was that there was no agreement on the fundamental matters of the content of the architectural work to be done in respect of the Project or the fee to be paid for it. What was represented to Fraser was largely the subject of the preceding section of these Reasons. 296 The representations, in so far as they were made to Fraser, can be formulated in one or more of various ways, such as, that Fraser was currently the architect who was providing services in connection with the Project; that the respondents were hoping to appoint Fraser as project architect for the entirety of the Project; that they had reasonable grounds for thinking that he would come to a fee level acceptable to them and so be appointed; that they did not know of any obstacle to their engaging him as project architect; that subject to agreement being reached on fees, their intentions were that he would be their project architect. But representations so formulated are not shown to have been false or falsified. In fact, representations so formulated were true. 297 An alternative way of resolving the present aspect of the applicants' case is to say that if, contrary to what I have said above, the respondents represented that Fraser was already or definitely would be their project architect, he did not rely on any representation so formulated. 298 For the above reasons, in my view W-D is not estopped from denying that VFA was the project architect for the Project and was entitled to act as such and to earn its reasonable fee as such. UNJUST ENRICHMENT 299 The case in unjust enrichment is pleaded on various bases. It is pleaded that W-D has been unjustly enriched to the extent of a difference between VFA's "usual fee" or "reasonable fee" for the design and drawing work and the sum of $85,000 which was in fact paid. On the "VFA's usual fee" basis, the amount claimed, by reference to the scales in the RAIA Fee Guide which Fraser said he usually used for the purpose of calculating his fees, is as follows: Usual fee $840,000 Amount Paid 85,000 Balance claimed $755,000 300 On the "reasonable fee" basis, the amount claimed, based on the evidence of the applicants' expert, Gilling, is as follows: Reasonable fee $656,279 Amount Paid 85,000 Balance claimed $571,279 301 Alternatively, it is pleaded that W-D has saved the fee which it would otherwise have had to pay to another architect for the work and has been unjustly enriched to the same extent. On this basis, the amount claimed is again $755,000, or, in the alternative, $571,279. 302 No material facts are pleaded establishing the basis of the "unjust enrichment". It does not constitute an unjust enrichment of A that A has been provided with services by B for which A has paid to B a sum less (even much less) than the fee that B usually charges for such services, or less (even much less) than the "reasonable" fee for the services provided the amount paid is, as it was in the present case, contractually agreed upon. 303 Moreover, I am not satisfied that the sum of $85,000 was less than a reasonable remuneration for the services the subject of the first and second contracts. QUANTUM MERUIT 304 The case for remuneration on a quantum meruit basis for the services the subject of the first and second contracts must overcome the obstacle presented by the existence of those contracts. The pleading seeks to set aside the first contract (November 1991 - 10 February 1992) which stipulated the fee of $70,000 for design and preparation of presentation drawings, but not the second contract (12 October 1992) which fixed a fee of $15,000 for upgrading of the presentation drawings to reflect design changes and to comply with the MSB tender requirements. The applicants plead that the first contract "is liable to be set aside by the Court for reason of the misrepresentation by [W-D]" or, alternatively, that the first contract "determined for failure of condition". 305 The misrepresentation is not pleaded but the "particulars" to the relevant paragraph say "As described under the heading 'False and Misleading Statements'". Thus, the representation in question is that Fraser or VFA "was or would be the project architect" and the "condition" in question is that Fraser or VFA "be formally engaged as project architect and receive reasonable fees as such". According to the pleading, the contract to be set aside is that evidenced by Fraser's letter dated 21 January 1992. Accordingly, any operative misrepresentation would have to precede that date. 306 For reasons given earlier in these Reasons under the headings "Misleading or Deceptive Conduct" and "Estoppel", in my opinion it was not represented prior to that date (or subsequently for that matter) that Fraser or VFA already was or definitely would be the project architect if the right to carry out the Project was won by W‑D. Similarly, and for similar reasons, I do not think that it was an agreed condition of Fraser's or VFA's agreement to accept $70,000 that Fraser or VFA be so appointed. 307 An important plank of the applicants' case is that the value of services rendered far exceeded the sum of $85,000 paid. On this issue there was a conflict between the evidence of the applicants' expert, Gilling, and that of the respondents' expert, Martin. Their qualifications to express the opinions which they gave were not in question. 308 Gilling said that, in the period from late 1991 to late 1993, the scales in the RAIA Fee Guide were "little more than a reference point for architects bidding for projects of this nature". He added that the period mentioned embraced a period of deep recession in the building industry and that "many major architectural firms accepted commissions below cost in order to keep their office structures intact". He stated as follows: "6.9 With the competitive atmosphere prevailing amongst architects at this time, I do not agree that a reasonable fee for this project should have been based on the RAIA recommended scale. 6.10 This is not to say, however, that elements of the scale, such as the margins for degrees of difficulty for various projects, or the proportionate amount applicable for a given stage of service, should not be taken into account. Matters such as these have been formulated over years of experience and are still accepted by practising architects as being reliable economic guidelines when formulating their fee offers. Accordingly, it is my view that these factors must be considered in determining the reasonable fee for Fraser's work." 309 By a course of reasoning which I need not detail, but which made some use of the RAIA Fee Guide as a reference point, Gilling concluded that a reasonable fee for the preparation of the schematic drawings was $643,279.00. He added this: "... for attending meetings, providing promotional material and attending upon regulatory authorities, institutions and the like, charges should be based on an hourly rate basis for the time spent in such activities. If Fraser had been commissioned to provide full architectural services, these services would normally have been absorbed into the overall percentage fee. In my opinion, $100 per hour would be a reasonable hourly rate for this work." 310 Taking Fraser's estimate that he had spent some 130 hours on such work, Gilling arrived at an amount of $13,000 for it. Accordingly, the total "reasonable fee" according to Gilling became: Preparation of schematic drawings $643,279.00 Attending meetings, etc - 130 hours @ $100 per hour 13,000.00 TOTAL $656,279.00 311 Martin put the RAIA Fee Guide entirely to one side, saying that the Australian property industry was in deep recession from 1990, particularly from 1991 to 1994, and that for this reason, but also for others, fees were negotiated in that period commercially between architect and client and without any reference to RAIA publications. He described negotiations of fees in which he was involved in the period from 1992 to 1996 when he was a director of Davenport Campbell companies, associated with the architectural and interior design practice of Davenport Campbell ("DC"). 312 From the examples given, Martin drew the following conclusion: "- Fees negotiated between architects and clients do not relate to any RAIA published guides
Associate: Dated: 5 February 1999 Counsel for the Applicant: Ms C A Needham
Counsel for the Respondent: Mr I M Jackman with Mr T Thawley
Solicitors for the Respondent: Dobes and Andrews
Date of Hearing: 20, 21, 22, 23, 24, 27, 28, 30 April 1998
Vivian Fraser & Associates Pty Ltd
Shipton
FEDERAL COURT OF AUSTRALIA Vivian Fraser & Associates Pty Ltd v Shipton [1999] FCA 60 CONTRACT - intention to create legal relations - architect engaged by property developers pursuant to two contracts to prepare specific preliminary drawings - whether also contract by which architect engaged for entire project - no agreement on fee for entire project - whether property developers agreed to pay a "reasonable fee" and negotiate "in good faith" on amount of fee for entire project - whether such agreement enforceable. TRADE PRACTICES - misleading and deceptive conduct - whether property developers represented to architect that he was to be architect for entire project - whether property developers represented to architect that they intended to engage him for entire project and knew of no reason why he would not be so engaged - whether representations misleading or deceptive - whether architect relied on representations. UNJUST ENRICHMENT - quantum meruit - whether contract liable to be set aside and architect permitted to claim a reasonable remuneration for work done - whether remuneration provided for in contracts reasonable - whether architect entitled to reasonable remuneration for work done not covered by contracts - whether architect has quantum meruit claim for work done to assist developer win tender in circumstances in which parties assumed architect would be retained as project architect for entire project but later could not agree on his fee as such with result that he was not retained.
(1991) 24 NSWLR 1
(1987) 162 CLR 221
(1993) 60 SASR 525
(1998) 44 NSWLR 349