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Hodgkinson v Doepel & Associates Architects Pty Ltd

Hodgkinson v Doepel & Associates Architects Pty Ltd

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Case Copied 27 October 2006 77 min read

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: HODGKINSON -v- DOEPEL & ASSOCIATES ARCHITECTS PTY LTD [2006] WASC 237

CORAM: SIMMONDS J

HEARD: 15-19, 22-26, 29 & 30 AUGUST 2005

DELIVERED : 27 OCTOBER 2006

FILE NO/S: CIV 2698 of 2001

BETWEEN: EDWARD WILLIAM HODGKINSON
Plaintiff
AND
DOEPEL & ASSOCIATES ARCHITECTS PTY LTD (ACN 069 628 440)
Defendant

Catchwords:

Contract - Terms of contract - Whether "the house" cost estimate made on reasonable grounds - Scope of "the house" cost estimate - Misleading and deceptive conduct - Turns on own facts

Legislation:

Fair Trading Act 1987 (WA), s 9(2), s 10, s 12(1)(b)
Land Tax Assessment Act 1976 (WA), s 24
Trade Practices Act 1974 (Cth), s 51A(2), s 52, s 53(aa)

Result:

Plaintiff's claim partially successful

Category: B

Representation:

Counsel:

Plaintiff: Mr G R Donaldson SC & Mr J D Finlay
Defendant: Mr P G McGowan

Solicitors:

Plaintiff: J D Finlay & Co
Defendant: Phillips Fox

Case(s) referred to in judgment(s):

J & J C Abrams Ltd v Ancliffe [1978] 2 NZLR 420
McBratney & Anor v Boston, unreported; FCt SCt of WA; Library No 940567; 14 October 1994

Case(s) also cited:

Astley v Austrust Ltd (1999) 197 CLR 1
Auburn Municipal Council v ARC Engineering [1973] 1 NSWLR 513
Bellgrove v Eldridge (1954) 90 CLR 613
Beregold Pty Ltd v Mitsopoulous (1999) 15 BCL 290
Brown Falconer Group Pty Ltd v South Parklands Hockey and Tennis Club Inc [2005] SASC 75
Bryan v Maloney (1995) 182 CLR 609
Coleman v Gordon M Jenkins and Associates (1989) ATPR 40-960
Cummings v Lewis (1993) ATPR (Digest) 46-103
Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588
Henville v Walker (2001) 206 CLR 459
Lyons v Jandon Constructions (a firm), unreported; SCt of WA; Library No 980394; 20 July 1998
March v Stramare (E & M H) Pty Ltd (1991) 171 CLR 506
Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494
Medlin v State Government Insurance Commission (SA) (1995) 182 CLR 1
Rogers v Whitaker (1992) 175 CLR 479
South Parklands Hockey and Tennis Club Inc v Brown Falconer Group Pty Ltd [2004] SASC 81
Voli v Inglewood Shire Council (1963) 110 CLR 74
Wardley Australia Ltd v Western Australia (1992) 175 CLR 512

TABLE OF CONTENTS

Introduction
Mr Hodgkinson's background
Mr Doepel's background
The Hodgkinsons acquire Lot 9, Blenheim Lane, Mt Claremont

The initial meetings between Mr Hodgkinson and Mr Doepel in March 1998
The initial indications of the Hodgkinsons' budget, and what it covered
The evidence as to homes of a standard design
The evidence as to the building licence
The exclusions from the brief to Mr Doepel
The evolution of the project between March 1998 and November 1998
The letter from Mr Doepel to the Hodgkinsons dated 30 November 1998 and further changes
The further evolution of the project from December 1998 to July 1999
The two letters dated 22 July 1999
The agreement between the Hodgkinsons and the defendant of July…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] WASC 237
Decision Date: 27 OCTOBER 2006

CaseChat Overview and Summary

The parties in this case were Hodgkinson and Doepel & Associates Architects Pty Ltd. The nature of the dispute was whether Doepel & Associates Architects Pty Ltd had made a cost estimate for the construction of "the house" on reasonable grounds and the scope of that estimate. Additionally, the case addressed whether the conduct of Doepel & Associates Architects Pty Ltd was misleading and deceptive.

The legal issues that the court had to decide were whether the cost estimate for the construction of "the house" was made on reasonable grounds, the scope of the estimate, and whether Doepel & Associates Architects Pty Ltd's conduct was misleading and deceptive. The court was required to determine whether the cost estimate was reasonable and the scope of the estimate, as well as whether the conduct of Doepel & Associates Architects Pty Ltd was misleading and deceptive.

The court's reasoning was that the difference between the scale allowance and the claim was not significant, but there was another item in the draft bill of costs that needed to be taken into account. The court considered that the complexity of the case necessitated the claimed work hours, and the hourly rates were below the 2002 Determination. The court held that a special costs order was appropriate for the statement of claim, as the limits of any relevant determination as to hours did not apply. The court concluded that a special costs order was appropriate for the statement of claim, to the effect that the limits of any relevant determination as to hours did not apply.

The final orders were that the defendant was to pay the plaintiff's costs of the proceedings on the indemnity basis, and that the limits of any relevant determination as to hours did not apply to the statement of claim.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It is the case that the difference is not very great between the scale allowance and the claim, and that this would incline me against making the order if it rested on that difference alone: SDS Corporation (supra) Roberts‑Smith J, at [151]. However, the difference claimed is greater than that indicated simply by that comparison, as there is another Item in the draft bill of costs of which I am asked to take account. In relation to draft bill of costs, Item 7, the relevant item in the 2002 Determination allows for a maximum of 10 hours at the senior practitioner hourly rate of $313, or a total of $3,130. The draft bill of costs, Item 7, shows $5,777.20, made up of counsel fees of $3,665.20 and solicitor's fees of $2,112.00. From the document "Summary 2" part of annexure "JF1" to the Finlay affidavit of 23 January 2007, it is indicated the basis for the claim is 7.7 hours of the deponent's work at what appears to be the hourly rate of $274.29; and 11.9 hours of counsel's work, at what appears to be the hourly rate of $308.00. Here, the claim's work hours are above, but its hourly rates are below, the 2002 Determination. I consider that Summary 2 shows the inadequacy of the relevant scale item. I consider there is sufficient evidence, in the Finlay affidavit of 23 January 2007, with my appreciation of the trial, that this was due to the complexity of the case as I have described it. Finally, when draft bill of costs Items 2 and 7 are aggregated, the total is significantly greater both than the largest allowance under the relevant scales (under the 2002 Determination) or the aggregate of the allowances under the relevant scales (under both the 1999 and the 2002 Determinations). Counsel for the defendant, Mr Forbes, put to me that no special costs order was appropriate on the material before me, as the statement of claim was once and for all work that should be taken to include all amendments. The work done here on the evidence before me was due to amendments. Further, none of the amendments was shown to be due to activity of the defendant, but rather at best changes of circumstance and at worst corrections of errors in the original drafting. Finally, complexity in the facts and law would not necessarily find reflection in the statement of claim. I do not agree with any of these propositions. It seems to me that a case's factual complexity, including complexity relevant to a complex legal issue might emerge or intensify over the time following the preparation of the statement of claim, necessitating amendments. It is not a matter of allocating fault to the party responsible for costs. The nature of the other party's case may be such that there is the need for the relevant drafting, of the original document or any amendments, which entails the costs in question. Accordingly, I consider a special costs order is appropriate for the statement of claim, to the effect that the limits of any relevant determination as to hours not apply. See Flotilla Nominees (supra), per Pullin J, as to this form of order where work above the maximum involving work done by a fee earner at or below the hourly rate provided for is involved.