THE PROFESSIONALS by forrests

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									POSITION OF THE PROFESSIONALS IN CONSTRUCTION PROJECTS
1. Professional Fees Payments

Khin, C. S. Development Sdn. Bhd. v Chung Yoke Onn [1985] 1 MLJ 319 (Malaysia) The appellant development company had retained the respondent as architect on several projects. He claimed $396,883 for professional fees. The appellants denied liability in so far as it concerned an abandoned project. The trial judge gave judgment for the architect. The development company appealed on the ground that the project in question was abandoned more than six years before the writ was issued. Lee Hun Hoe C.J. held that the developers had made payments to the architect subsequent to the abandonment, against the total amount owed for all his outstanding fees on different projects. These payments prevented time from running and time only began to run for limitation purposes after the payments had ceased, i.e. after the last payment. As a result, the respondent was entitled to his fees for the abandoned project and the developers’ appeal was discussed.

Case judicially considered:

Udachin Development Sdn. Bhd. v Datin Peggy Taylor 1985, Digest 64.

2. Entitlement For Payments For Works Done
Lim, K C and Assocs. Sdn. Bhd. v Pembenaan Udarama Sdn. Bhd. [1980] 2 MLJ 26 (Malaysia) The appellant architects carried out preliminary cost-planning and feasibility study work for the respondent developers on a mixed commercial/residential development in Kuala Lumpur. The developers subsequently abandoned the scheme but refused to pay the architects for their work and that of their quantity surveyors, on the grounds that it was because of their gross under-estimate of the costs of the scheme that it had had to be abandoned. The judge at first instance refused an application by the architects for summary judgement. They appealed to the Federal Court. Chang Min Tat FJ said that while it was ‘settled law that where a party undertakes a work of skill and labour and fails in his object so that his employer derives no benefit from the work, he is not entitled to recover anything’, yet in this case there was no evidence beyond the opinion of another surveyor that there had been such a gross under-estimate. ‘The evidence of a tender exercise would have established this beyond argument. But this acid test was not taken. The developers terminated the employment of the architects without instructing them to proceed to .... call for tenders’. It was held that the respondents had not thus shown want of skill to enable them to substantiate a defence, and the architects’ appeal succeeded.

3. Professional Fees (Professional Services) still Payable Whether Or Not The Work Done Is Useful Or Beneficial To The Client
Soon Nam Co. Ltd. v Archynamics Architects [1979] 1 MLJ 212 (Singapore)

The plaintiff architects claimed from their clients fees of $152,000 for work done prior to the termination of their appointment. They had prepared and submitted plans which had been returned with no decision made on them. D’Cotta J in the High Court found in favour of the architects and his decision was affirmed by the Court of Appeal Choor Singh J. held that, since the agreement for professional services had incorporated the Singapore Institute of Architects Conditions of Engagement, fees for partial services were still payable; in such a case ‘whether or not the work done by the architect is useful or beneficial to the other party has no bearing on the question of payment for the services rendered by the architect’. The clients’ appeal was dismissed.

4. Must Be A Registered Engineer If Not, Illegal Contract

Raymond Banham & Anor v Consolidated Hotels Ltd. [1976] 1 MLJ 5 (Singapore) The plaintiffs, a firm of consulting Mechanical and Electrical Engineers, practising in Hong Kong, sued the defendant clients for professional fees of $106,250 in connection with the proposed Hotel Sheraton project in Singapore. The defendants refused to pay on the ground that the agreement for services was illegal and unenforceable because the plaintiffs were not registered in Singapore as professional engineers. Winslow J held that although the plans for the hotel were prepared in Hong Kong and the firm’s representatives travelled periodically to Singapore solely for the purposes of this project, nevertheless, they were engaged in professional engineering work in Singapore for the purposes of the Professional Engineers Act. As such they were required to be registered as professional engineers. ‘Services were being performed under this contract which were illegal in that their engineers never took steps to get themselves registered beforehand nor to engage in such services under the direction or supervision of a registered professional engineer.’ ‘I am aware that to hold that the contract is illegal ab initio may appear to be harsh but such is the position with regard to illegal contracts where both parties have contravened the law and the plaintifs, much as I may sympathise with them, are left without remedy. Ignorance of the law or even innocent participation in such a contract cannot avail the plaintiffs.... The defendants accordingly succeed, notwithstanding their own participation in this illegal contract.’ Judgement was given for the defendants.

5. The Engineer Not Registered Under The Relevant Act Void ab initio

Raymond Banham & Anor v Consolidated Hotels Ltd. [1976] 1 MLJ 5

(Singapore) The plaintiffs, a firm of consulting Mechanical and Electrical Engineers, practising in Hong Kong, sued the defendant clients for professional fees of $106,250 in connection with the proposed Hotel Sheraton project in Singapore. The defendants refused to pay on the ground that the agreement for services was illegal and unenforceable because the plaintiffs were not registered in Singapore as professional engineers. Winslow J held that although the plans for the hotel were prepared in Hong Kong and the firm’s representatives travelled periodically to Singapore solely for the purposes of this project, nevertheless, they were engaged in professional engineering work in Singapore for the purposes of the Professional Engineers Act. As such they were required to be registered as professional engineers. ‘Services were being performed under this contract which were illegal in that their engineers never took steps to get themselves registered beforehand nor to engage in such services under the direction or supervision of a registered professional engineer.’ ‘I am aware that to hold that the contract is illegal ab initio may appear to be harsh but such is the position with regard to illegal contracts where both parties have contravened the law and the plaintifs, much as I may sympathise with them, are left without remedy. Ignorance of the law or even innocent participation in such a contract cannot avail the plaintiffs.... The defendants accordingly succeed, notwithstanding their own participation in this illegal contract.’ Judgement was given for the defendants.

6. Professional Fees (Professional Services) still Payable Whether Or Not The Work Done Is Useful Or Beneficial To The Client
Soon Nam Co. Ltd. v Archynamics Architects [1979] 1 MLJ 212 (Singapore)

The plaintiff architects claimed from their clients fees of $152,000 for work done prior to the termination of their appointment. They had prepared and submitted plans which had been returned with no decision made on them. D’Cotta J in the High Court found in favour of the architects and his decision was affirmed by the Court of Appeal Choor Singh J. held that, since the agreement for professional services had incorporated the Singapore Institute of Architects Conditions of Engagement, fees for partial services were still payable; in such a case ‘whether or not the work done by the architect is useful or beneficial to the other party has no bearing on the question of payment for the services rendered by the architect’. The clients’ appeal was dismissed.


								
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