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BuildLaw - Issue No 9 March 2011

Quantity Surveyors: Quantity not Quality


At a recent hearing, the court rejected the submission that there was an implied term in a contract between an employer on a building project and a quantity surveyor that the QS' duty was 'to only value work that had been properly executed by the contractor and was not obviously defective'. Instead, the implied term was less onerous, that a QS should 'act with the reasonable skill and care of quantity surveyors of ordinary competence and experience when valuing the works properly executed for the purposes of the interim certificates' Background The claimant claimed damages from the contractor, architect and QS arising out of alleged defects in the design and construction of their property. McBains, the QS, sought to strike out the claim against them on the basis that they did not owe the claimants the alleged duty, namely only to value work that had been properly executed by the contractor and was not obviously defective. Whilst McBains were named in the construction contract as the QS and performed the usual function of a QS, there was no indication that any contract had been formalised, nor evidence of any oral contract or contract by conduct. McBains were to identify the total value of work properly executed by the contractor, and did this following discussions with the contractors and architects and by inspecting the works where necessary. McBains denied, however, that it was for them to ensure that the works had been properly executed, or to identify any defects and draw them to the attention of others. Decision On the basis that there were no express terms of contract, the terms alleged by the claimants had to be implied. The court found that there was an implied term, in order to give the contract business efficacy, that McBains would act with the reasonable skill and care of quantity surveyors of ordinary competence and experience when valuing the works properly executed for the purposes of the interim certificates. This differed from the claimant's alleged absolute obligation not to value work which was 'obviously defective', that defects obvious to McBains ought to have been reported. Such an obligation would put a positive duty on the part of McBains to inspect the works and not value work which was 'obviously defective'. This had not been expressly agreed, and the court found no legal foundation for implying such a term. The claim was not, however, struck out, as disclosure had yet to take place, although the court did express doubt at the claimant's ability to prove that McBains had fallen below the standard to be expected of an ordinarily competent quantity surveyor. Comment The position remains that architects are to inform quantity surveyors of defects in work which affect the valuation. A quantity surveyor is concerned with quantities, not the quality of work; these lines of responsibility remain well-defined. A QS should,

BUILDING DISPUTES TRIBUNAL

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BuildLaw - Issue No 9 March 2011

however, review its contract to ensure awareness of the ambit of its responsibility and ultimate liability, and continue to communicate what they see on site to the architect, even if the latter is not a strict legal obligation. For further reading please see: Dhamija v Sunningdale Joineries Ltd, Lewandowski Willcox Ltd, Mcbains Cooper Consulting Ltd [2010] EWHC 2396 (TCC) which can be found on the resources section of our website (http://www.buildingdisputestribunal.co.nz/ RESOURCES/COURT+DECISIONS/UK+COURT+DECISIONS.html)

BUILDING DISPUTES TRIBUNAL

www.buildingdisputestribunal.co.nz

BuildLaw - Issue No 9 March 2011

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BuildLaw is published by Building Disputes Tribunal. BuildLaw is a newsletter and does not purport to provide a comprehensive analysis of the subjects covered or to constitute legal advice. BuildLaw is intended to promote and engender discussion, debate, and consideration of all matters in relation to the development and application of construction law, the resolution of building and construction disputes, and the processes that are used for the resolution of those disputes. Articles, commentaries and opinions are intended to raise questions rather than to be emphatic statements on the subjects covered and the views expressed are the views of the author and are not necessarily those of the directors, servants and agents of the Tribunal. Information published is not guaranteed to be correct, current or comprehensive and the Tribunal accepts no responsibility for the accuracy of any information published in BuildLaw and no person should act in reliance on any statement or information contained in BuildLaw. Readers are specifically advised that specialist legal advice should be sought in relation to all matters in relation to, or in connection with, the subjects covered and articles published in BuildLaw.

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