It would appear that there is conflicting information whether the architect attempted kept [sic] their client sufficiently informed of the work being undertaken, the fees associated with the project and any intended change to those fees. As a result we recommend that for each basis of the complaint:

1. Standard of practice - further enquiry is warranted
2. Duties - further enquiry is warranted
3. Correctness of representations - further enquiry is warranted
4. Defining the terms of engagement - further enquiry is warranted.

1. The Board's statement under section 49 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) sets out some background to the decision, a summary of the applicant's complaints, and the basis of the decision. The following is from the section 49 statement.
2. The Board:
   • considered whether there was a prima facie case that Mr Chester had engaged in conduct which should be the subject of an inquiry, understanding that this must be more than a 'bald assertion';
   • understood that its role was to consider Mr Chester's conduct against the professional standards as provided for in the Act and the Regulations, having regard to the experience and expertise of its members;
   • considered that it is not the role of the Board or an inquiry to resolve civil disputes between an architect and a client, nor to determine whether a contract has been breached by an architect or a client, [noting that] it is possible for two parties to disagree upon, for example, the terms of the contract of engagement, without the architect engaging in unprofessional conduct.
3. Having considered the evidence, the Board was not satisfied that there was sufficient evidence to support a prima facie case that Mr Chester's conduct amounted to unprofessional conduct. The Board compared Mr Chester's conduct to what is expected of a member of the profession of good repute and competency in this situation, and determined that Mr Chester's conduct did not fall below that of a member of the profession of good repute and competency nor was it incompetent or careless. The Board was of the view that Mr Chester had not failed to act in accordance with relevant professional standards.
4. I refer to the previous discussion of the task of the Board and the Tribunal on review in determining whether an inquiry should be held, and observe here that the Board's stated understanding of its role - to consider Mr Chester's conduct against the professional standards as provided for in the Act and the Regulations, having regard to the experience and expertise of its members - and the way it has expressed its decision suggest that it may have seen its role as reaching a concluded view on the matter.
5. As discussed, if the matter is referred for inquiry, it will be for the Architects Act Tribunal to determine whether any grounds of inquiry are made out. Under the Act, the Tribunal is separate from the Board - a member of the Board cannot be a member of the Tribunal.[10]
6. I agree, however, that:
   • it is not the role of the Board or an inquiry to resolve civil disputes between an architect and a client, nor
   • to determine whether a term of a contract has been breached by an architect or a client, and
   • it is possible for two parties to disagree upon, for example, the terms of the contract of engagement, without the architect engaging in unprofessional conduct.

1. In the Tribunal proceedings, the Board filed a statement under s 49 of the Victorian Civil and Administrative Tribunal Act and attached documents; the parties filed submissions, and a number of affidavits made by Mrs Wallin and Mr Chester together with exhibits were in evidence. As a preliminary issue I ruled that the matters raised by Mrs Wallin relating to the dealings between Mr Chester and the ultimate purchasers and the declaration made by him to Council in relation to the June 2014 amendment application were within the Tribunal's jurisdiction on the review application. As a result the parties filed additional affidavits.
2. In considering the evidence before the Tribunal I have not considered each element of the complaints the Wallins made to determine whether the complaints were proven. Instead, I have focused on evidence that potentially raises a ground for inquiry, and in particular whether there are grounds for inquiry based on breaches of one or more of rr 6-14 of the 2004 Regulations.
3. I have taken into account the Board's reasons for decision, and acknowledge the experience and expertise of its members, but I have not set out a detailed analysis of those reasons. My role on review is not to decide whether the Board was right or wrong in the decision it made but to approach the matter afresh and make the correct or preferable decision on the evidence before me. Further, I had evidence before me about Mr Chester's dealings with the ultimate purchaser which was not before the Board.

1. Evidence before the Tribunal but not before the Board included that:
   • while the property was on the market, Mr Chester was approached by potential purchasers, and was prepared to enter into an agreement for the use of the drawings with potential purchasers;
   • before the sale Mr Chester had dealings with the ultimate purchaser who asked for copies of the drawings to help him assess the commercial viability of developing the property; and
   • before the sale was completed Mr Chester entered into an agreement to assist the purchaser to amend the permit. The services he agreed to provide to the purchaser included the use of the plans prepared for Mr and Mrs Wallin, and paid for at least in part.
2. The evidence includes:
   • Chester affidavit 26 October 2016 [6]-[10], Chester affidavit 6 December 2016 [10]
   • Chester letter dated 12 June 2014 to Council and the attachments referred to in that letter.
3. In his affidavit dated 28 October 2016, Mr Chester states in summary that:
   • During the litigation, his solicitors at the time discovered that the Wallins were attempting to sell the property. Subsequently several potential purchasers of the property including Graham Edmonds of 75 PSK Pty Ltd asked him for information about the property.
   • Mr Edmonds told Mr Chester that he was assessing the commercial viability of developing the property and asked Mr Chester to provide him with a copy of the drawings and the permit conditions and an Excel spreadsheet of the floor areas so that he could work out costings and sales figures for feasibility.
   • On about 9 May 2014, Mr Edmonds telephoned him and said that 75 PSK Pty Ltd had purchased the property and the contract of sale was unconditional. He said he and his partners proposed to develop the property and asked if Mr Chester would assist with amendments to the planning permit.
   • Immediately after the discussion with Mr Edmonds, Mr Chester telephoned his solicitors and then telephoned Mr Edmonds to request a copy of the contract of sale for the purchase of the property. Mr Edmonds provided to him a copy of the contract of sale shortly afterwards and, on about 14 May 2014, he provided a copy to his solicitors.
   • On about 16 May 2014, 75 PSK Pty Ltd formally engaged Mr Chester's company to provide various services including to amend the drawings and to use them to obtain an amended planning permit for its development of the property. (Exhibit CFC 3 is a copy of the fee agreement).
4. On its face the fee proposal from Mr Chester to 75PSK Pty Ltd describes services including revision of town planning drawings, revision of materials, revision of a number of documents, and amendment of working drawings. The proposal provides for fees for design and town planning amendment, contract documentation, and contract administration.
5. On its face this evidence raises the issue of whether Mr Chester acted in conflict of interest - not acting in the interests of the Wallins and favouring his own interest over that of his client. It also raises the issue of whether he failed to give notice of the conflict of interest to his client/s and obtain their consent.
6. In his submissions in the current application, Mr Chester submits that from November 2011 to October 2014, his company was involved in a civil dispute regarding payment of outstanding fees and, accordingly, his company was entitled to withdraw the applicant's license to use the drawings and to use the drawings as it saw fit.
7. I disagree.
8. It might well be permissible to prevent a client who has not paid fees from using the plans and drawings pending resolution of a dispute about the fees - although I note that the question of whether Mr Chester had the right to do so was a contested issue in the court proceedings and, based on a reading of Counsel's opinion, not a straightforward one to answer.
9. But the issue here is whether Mr Chester was entitled to go further and allow another party to use the plans and drawings in circumstances where the other party was the ultimate purchaser of the Wallins property and proposing to develop the site.
10. The evidence squarely raises the question of whether Mr Chester's conduct engages r 7 (and/or the broader, common law definition of test for unprofessional conduct in circumstances where:
    • The Wallins had paid substantial consideration for the plans and drawings
    • Mr Chester had withheld the right to the Wallins to use the plans and drawings in the sale of their property
    • There was an unresolved dispute before the court about whether any additional fees were owing and whether there was a licence for the Wallins to use the plans and drawings
    • While withholding them form the Wallins, Mr Chester has given the benefit of the plans and drawings to a third party purchaser and received payment from that purchaser
    • Without notice to the Wallins and without their consent.
11. The evidence before me also included the first of the letters forming Exhibit 4 to the affidavit of Mrs Wallin sworn 18 November 2016. It is a letter from Mr Chester's solicitors to solicitors acting for a potential purchaser, Mr Mofkadi dated 16 April 2014. The letter refers to a current dispute between the vendors of the property and their client listed for trial in the County Court on 14 May 2014. It contains the following:

We understand you act for the potential purchaser. We have been provided with a copy of Mr Mofkadi's letter of 3 April 2014 to Jordana Dymond of McMahon Fearnley offering to purchase the above property.

As you may be aware, there is currently a dispute between the vendors of the property and our client. The dispute is listed for trial in the County Court of Victoria on 14 May 2014.

The issue of the licence to use the plans and drawings is in dispute. Provision and use of the plans without our client's consent or other entitlement constitutes copyright infringement.

Our client has not given the vendors a licence to use its intellectual property (including the plans), nor to provide the plans to potential purchases. The plans remain the property of our client.

Until an agreement is reached with our client regarding its intellectual property, the plans are not to be used for any purpose [my italics].

1. There is sufficient strength in the evidence to warrant inquiry, in my view.

1. Evidence before the Tribunal but not before the Board included the evidence that Mr Chester lodged an application to amend the planning permit on behalf of 75 PSK Pty Ltd, while the Wallins were still the registered proprietors and without notice to them.
2. Under s 48 of the Planning and Environment Act 1987, if the applicant is not the owner of the land for which the permit is needed, the application must be signed by the owner of the land or include a declaration by the applicant that the applicant has notified the owner about the application. It is an offence under that section to obtain, or attempt to obtain, a permit by wilfully making or causing to be made any false representation or declaration either orally or in writing.
3. Mr Chester agrees that he prepared an application for 75 PSK Pty Ltd to amend the planning permit for the property, which contained a declaration that 75 PSK Pty Ltd was the owner of the property. He signed the declaration on 6 June 2014 and lodged it with the council.
4. There is no dispute that the declaration made by Mr Chester was not true. At the time the Wallins were the owners and he had not notified them about the application.
5. Mr Chester denies that he knowingly made a false declaration, and says that at the time he made the declaration he was not aware that settlement had been delayed. He had seen the contract of sale, believed that settlement was to take place on 5 June 2014 and believed that 75 PSK Pty Ltd was the owner of the property as at the date of making the declaration at that date.
6. He says that before lodging the application he emailed his client to ask for the owner's details. His client advised that the owner was 75 PSK Pty Ltd. The emails were in evidence.
7. It is not for the Tribunal to determine whether an offence has been committed under s 48 of the Planning and Environment Act. For the purposes of this application, I note that there is no evidence before me that Mr Chester knowingly made a false declaration. But the fact that it is an offence to wilfully make a false declarations underlines the importance of the declaration being true. There are obvious issues in Council considering and deciding on an amendment to a permit without the owner being notified.
8. Apart from any other issues that may be raised under s 32 of the Act, the declaration raises the question under s 32(c) of whether there has been a breach of regulation 12, and thereby unprofessional conduct.
9. Regulation 12 is cast in different terms to section 48 of the Planning and Environment Act. It is a positive obligation, requiring an architect to ensure that representations made in connection with the supply or possible supply of architectural services... are accurate and current.
10. Definitions of 'ensure' include -

Macquarie Dictionary, 6th ed: to secure, or bring surely, as to a person: to make sure or certain to come, occur; to make secure or safe, as from harm.

Australian Concise Oxford Dictionary 4th ed: make certain, secure, make safe (often followed by 'that' plus clause).

1. On the face of it, in the context of r 12, ensure means to make sure or certain that the representation was accurate and current. This is quite a high threshold.
2. The question for the Architects Tribunal would be whether Mr Chester has made certain or sure that at the time he made the declaration, that the representations in it were current and accurate. Without limiting the scope of the inquiry, relevant considerations might include what questions and of whom Mr Chester could have asked to ensure that settlement had taken place. Did his email to 75PSK Pty Ltd satisfy the requirement? Was it enough to rely on the contract of sale in evidence (which already had an earlier date crossed out) without obtaining confirmation that settlement had gone ahead.
3. And given that Mr Chester states in his affidavit of 6 December 2016 that he had a pre-application meeting with a representative of Council on 3 June 2014, before the settlement date in the contract of sale, it may be relevant to inquire into what, if any, representations were made about who he was representing.
4. There is sufficient strength in the evidence to warrant inquiry, in my view.

1. I have also considered the question of whether there is evidence that Mr Chester was in breach of the communication obligations in regulations 12 and 14 about scope of work and fees. I note the reviewing architects recommended further enquiry about these issues.
2. I agree with the Board's view that the question of whether Mr Chester overcharged the Wallins, and whether in fact they owed him any fees, and if so much how much, is not of itself an issue warranting or appropriate for an inquiry.[11]
3. I note the focus of the Board's decision as to whether there was any unprofessional conduct in the provision of information was on the alleged delay of two months in the Wallins receiving the 19 October 2010 revised fee proposal.
4. To the extent that there was additional design work directly resulting from the mediation in late 2010, I would agree that Mr Chester has sought to give notice as soon as practicable to his clients about the change, and that the delay while unfortunate may not of itself engage s 32 of the Act.
5. There is a broader issue raised on the evidence, however, namely whether at any time between March 2010 and the mediation it ought to have been apparent to Mr Chester that the scope of the engagement had changed from what he had intended by the March 2010 proposal, and that he should, as soon as practicable advise his clients in writing of the change and any increase in the fees proposed to be charged.
6. In other words, my view is that it is open on the evidence to allege that the October fee proposal includes work covered by the March proposal and therefore represents a variation in the fee for work undertaken before the mediation, of which earlier notice ought to have been given.
7. While it is not absolutely clear, the letter dated 19 October 2010, in my view, is not simply notifying of changes resulting from the mediation at VCAT. It appears to relate to matters completed prior to the VCAT mediation. It refers, for example to services 'leading up to the mediation'. The report of Mr Peter Quigley sets out the issues that I think are raised in relation to the 19 October letter.
8. In particular, the impression is given from some of the paragraphs that the 19 October letter represents in part a rethinking on Mr Chester's part of the fees proposed in the March 2010 letter for the works included in the March 2010 letter, in particular the section beginning:

Since this was originally submitted we have had to redesign the entire project, parts of it more than once. The 65% anticipated in our fee proposal dated 5 March 2010 does not reflect the actual services undertaken. The increased change in scope included the following:

1.0 redesign of apartments including increasing of floor plates and bedroom numbers;

5.0 Redesign of elevations to cover one - three above.

1. In stating that 'we have had to redesign the entire project, parts of it more than once', it appears that the architect may be referring to work done prior to the mediation. If this is so, then there is likely to be an obligation under the regulations, to notify the clients _prio_r to the letter of October 2010.
2. I note that there is some evidence of re-design in July 2010. Mrs Wallin had complained that the montage was 'too modern'. There was an issue about corrugated iron and whether it was a suitable look for Kew. Regardless of whether the original drawings were within brief, it appears that Mr Chester did carry out a re-design. If he intended to increase the fees as a result, then regulations 12 and 14 would be engaged.
3. There is no doubt that the information before the Board showed that the parties had conflicting views about whether the services set out in the October letter had or had not been included in the 5 March fee proposal. It is also the case that the experts engaged in the court proceeding, were in the Board's view (which I accept) experienced and highly respected architects and they had been unable to agree as to whether the scope of services set out in the 19 October letter was included in the 5 March letter.
4. But the fact there is a dispute, or conflict in the evidence or the views of the parties is not enough to decide against referral. It is for the Architects Tribunal to resolve any conflict in the evidence. Nor should the Board, or this Tribunal, prejudge which factual matters will be established after a full hearing. Unless the architect's response provides a complete answer, which is not the case here on the face of the evidence, then referral is appropriate.
5. I appreciate that this particular issue, together with other issues, has occupied the parties and the Board in some detail and over a considerable period of time. I am also conscious that the dispute between the parties has been a long running one and has, clearly, taken a toll on the individuals concerned.
6. While my view is that it warrants further inquiry, it would be a matter for the Architects Tribunal, in my view, whether it should be included in the grounds of inquiry.

1. For the reasons set out above, I have determined that an inquiry should be held into the architect's professional conduct. Without limiting the Architects Tribunal's obligation to formulate its own grounds of inquiry and to inquire into other matters, at the request of the parties I have set out in these reasons the questions for inquiry that I consider have been raised by the evidence.
2. I consider that there is evidence which, although refuted by Mr Chester, has sufficient strength to warrant the holding of an inquiry into Mr Chester's professional conduct, including whether he has engaged in unprofessional conduct by contravening regulations 7, 8, 9, 12 and 14.
3. The evidence relates to :
   • Whether Mr Chester acted in conflict of interest in dealing with and providing information to a prospective purchaser of the Wallins property, and accepting an engagement on behalf of the purchaser which involved use of the drawings and plans and assisting the purchaser to obtain an amended planning permit, in circumstances where:
     • the Wallins had paid at least in part for the plans and drawings,
     • there were proceedings on foot in the court in which issues yet to be determined included whether he had wrongfully refused to allow the Wallins to sell the property with the plans and drawings, and
     • he received payment from the purchaser for making the plans and drawings available for the purchaser's use.
   • Whether he failed to give notice of any conflict of interest and obtain appropriate consents.
   • Whether he failed to ensure that the representation he made in the declaration to Council in the June 2014 amendment application was current and accurate.
   • Whether he ensured that the representations in the March 2010 fee proposal remained current and accurate and advised in writing as soon as practicable of any changes.
4. I will order that the decision of the Board be set aside and in substitution, I determine that an inquiry should be held under Part 4 of the Act into the professional conduct of Mr Chester.

[1] Pursuant to s 119 of the Victorian Civil and Administrative Tribunal Act 1998, these reasons have been amended to correct an inadvertent error in paragraph 12.

[2] See generally Shi v Migration Agents Registration Authority (2008) 235 CLR 287 [147]

[3] This was a decision to remit the matter to the Board for reconsideration. A later decision Shalit v Architects Registration Board [2014] VCAT 904, concerned a review of the decision subsequently made by the Board.

[4] Shi v Migration Agents Registration Authority 2008 HCA 31; 235 CLR 286.

[5] . Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981)

39 ALR 281; 3 ALD 88 at [30], Kirby J. See also Garde-Wilson v Legal Services Board

[2007] VSC 225 [62] Bell J.

[6] Shalit [96]. It 'must be more than a bald assertion', [100].

[10] Section 21(3) of the Act.

[11] See also Reviewing Members' Report 10 April 2014: 'the question of whether or not money is owed to the architect is not the key issue that would prompt a disciplinary inquiry, rather it is whether or not the architect properly informed the complainants of his fee proposals and the increases in fees.