THE PALACE OF JUSTICE CIVIL APPEAL NO. P-02-2074-2011 ...

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The architect is engaged by the employer to act as his agent for the purpose of securing the completion of the works in an economical and efficient manner. He must perform these duties properly and if he fails to do so may be liable to the employer in damages. But in performing them he must act fairly and professionally in applying the terms of the building contract. Until recently it was thought that this gave rise to a ‘dual capacity’ as agent and as quasi-arbitrator. It has now been settled by the House of Lords that an architect acting under the ordinary building contract is the employer’s agent throughout notwithstanding that in the administration of the contract he has to act in a fair and professional manner (Sutcliffe v. Thackrah [1974] A. C. 727). In our judgment, in determining whether a duty of care exists, and the scope of such duty, all relevant circumstances would have to be examined. This approach was enunciated by Gibbs CJ in The Council of the Shire of Sutherland v Heyman [1984-1985] 157 CLR 424 (at p. 441): In deciding whether the necessary relationship exists, and the scope of the duty which it creates, it is necessary for the court to examine closely all the circumstances that throw light on the nature of the relationship between the parties. 22
The above proposition was cited with approval by the Singapore Court of Appeal in Man B & W Diesel (see paragraph 31 of the judgment at page 312). The finding of the High Court Judge Now, in the present case, the learned High Court Judge, on the issue of liability in negligence, made a finding of mixed law and fact as follows: In my considered opinion the long delay in completing the project was caused or contributed by the 2 nd and 3 rd defendant as: (a) All the amendments (due to negligence of the defendants) took time and they affected the completion of Phase 1 of the project; (b) The completion of phase 1 of the project was delayed and the CF was only issued on 4/7/2005 because of the time taken for the approval of many amended plans and also the rectification works on works not done according to the original plans. 23
Page 1 and 2: IN THE COURT OF APPEAL OF MALAYSIA
Page 3 and 4: Introduction Defendants (1) Rakyat
Page 5 and 6: (Rakyat Corporation Sdn Bhd) to be
Page 7 and 8: The Vendor shall do all acts and th
Page 9 and 10: y the vendor failing which the vend
Page 11 and 12: developer proceeded to construct th
Page 13 and 14: (b) the refusal on the part of the
Page 15 and 16: architects for the project, resulti
Page 17 and 18: CFOs under the SPA. As the learned
Page 19 and 20: … speak, short circuiting the con
Page 21: 4 CLJ 508 (but see now the Federal
Page 25 and 26: From the evidence in this case, I f
Page 27 and 28: consequences. The case law authorit
Page 29 and 30: First one has to ask whether, as be
Page 31 and 32: which ought to negative, or to redu
Page 33 and 34: contemplate would be affected by hi
Page 35 and 36: ‘neighbourhood’ and that the si
Page 37 and 38: certainly owe a duty of care to the
Page 39 and 40: 128 ALR 163), New Zealand (for exam
Page 41 and 42: that the layout plan necessitated e
Page 43 and 44: Peculiarity of High Court’s Order
Page 45: Date of decision: 5 January 2012 Da

THE PALACE OF JUSTICE CIVIL APPEAL NO. P-02-2074-2011 ...

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