Saxby and Pokorny v. Fowler, (1977) 3 A.R. 607 (CA)

• Judge: Clement, Moir and Haddad, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: May 05, 1977
• Citations: (1977), 3 A.R. 607 (CA)

Saxby v. Fowler (1977), 3 A.R. 607 (CA)

MLB headnote and full text

Saxby and Pokorny v. Fowler

Indexed As: Saxby and Pokorny v. Fowler

Alberta Supreme Court

Appellate Division

Clement, Moir and Haddad, JJ.A.

May 5, 1977.

Summary:

This case arose out of a claim by an architect for the price of services rendered by the architect to a client. The client retained the architect to design a building to cost approximately $367,000.00. The lowest of five tenders received by the client was $440,000.00. The client abandoned the architect's plans and built a smaller building. The trial court allowed the architect's action for his fee of $17,070.00.

On appeal to the Alberta Court of Appeal, the appeal was allowed and the judgment of the trial court was set aside. The Alberta Court of Appeal dismissed the action by the architect for his fee because the architect was negligent in designing a building which cost far in excess of the cost limitation imposed by the client - See paragraph 28.

Building Contracts - Topic 5084

Architects and engineers - Employment contract - Implied terms - Estimates - The Alberta Court of Appeal stated that there is an implied condition in an architect's employment contract that the final cost of a building will be within a reasonable range of an architect's estimate - See paragraph 19.

Building Contracts - Topic 5241

Architects and engineers - Compensation - General principles - The Alberta Court of Appeal stated that one who performs services negligently is not entitled to recover the full contract price for his services - See paragraph 33.

Building Contracts - Topic 5244

Architects and engineers - Compensation - Claim on basis of quantum meruit - The Alberta Court of Appeal stated that where a client derives no benefit from an architect's services because of the architect's lack of skill, the result is a total lack of consideration which disqualifies the architect from enforcing a claim for his fees - See paragraph 33.

Building Contracts - Topic 5503

Architects and engineers - Duty to owner - Duty to owner respecting design of a building where the owner imposes cost limitations - The owner retained an architect to design a building to cost approximately $367,000.00 - See paragraph 14 - The lowest of five tenders received by the owner was $440,000.00 - See paragraph 12 - Subsequently, the owner abandoned the architect's plans and built a smaller building - The architect sued for his fee of $17,070.00 - The Alberta Court of Appeal dismissed the architect's action - The Alberta Court of Appeal held that the architect was negligent in designing a building which cost far in excess of the cost limitations imposed by the owner and, accordingly, the architect lost his right to compensation - See paragraph 28.

Building Contracts - Topic 5508

Architects and engineers - Duty to owner - Preparation of estimates by an architect - The Alberta Court of Appeal stated that an architect must give a client an informed and expert opinion - The Alberta Court of Appeal stated that an architect is negligent where actual building costs are far in excess of the architect's estimate - See paragraph 28.

Building Contracts - Topic 5509

Architects and engineers - Duty to owner respecting estimates where there is a disparity between actual costs and an architect's estimates - The Alberta Court of Appeal stated that where there is a disparity between actual costs and an architect's estimates that the burden of explaining the disparity lies with the architect - See paragraph 22 - The Alberta Court of Appeal stated that an architect has a duty to adjust his estimates where costs increase prior to a call for tenders - See paragraphs 26 and 27.

Cases Noticed:

Pratt v. St. Albert Protestant Separate School District No. 6 (1969), 69 W.W.R. 62, folld. [para. 20].

Savage v. Board of School Trustees of Alberni No. 70 (1951), 2 W.W.R.(N.S.) 30, folld. [para. 22].

Hodgins v. Hydro-Electric Commission of Nepean, 6 N.R. 451; [1976] S.C.R. 501, dist. [para. 29].

Authors and Works Noticed:

Webster's Third New International Dictionary [para. 5].

Hudson's Building and Engineering Contracts (10th Ed.), p. 144 [para. 15].

Rimmer's, The Law Relating to the Architect (2nd Ed.), p. 32 [para. 16].

Sweet, Justin, Legal Aspects of Architecture Engineering and The Construction Process, p. 163 [para. 17].

Counsel:

R.G. McLeod, for the appellant;

P.G.C. Ketchum, for the respondents.

This appeal was heard by CLEMENT, MOIR and HADDAD, JJ.A., of the Alberta Court of Appeal.

The judgment of the Alberta Court of Appeal was delivered by HADDAD, J.A., on May 5, 1977.