by Brian Morison, BDAV Executive Officer, 1994-2012
Fortunately, we rarely receive complaints or queries from consumers regarding the performance of BDAV Members.
However, occasionally, the BDAV receives complaints from clients expressing concern over the fact that the time undertaken to complete certain services has not been honoured, despite extensions of time being given and assurances that the work would be completed by set agreed dates. In each instance, the delays appear to have been simply as a result of the workload of the building designer.
It is vitally important that you ensure that your services are provided within the period specified in your contract, or if no time is specified, within a reasonable time.
This issue has been highlighted in Consumer Affairs Reports, particularly in regard to prosecutions against house builders who failed to provide their services within a reasonable time. The prosecutions were carried out under Section 19 of the Victorian Fair Trading Act 1999.
Section 19 of the Act prescribes:
“19. Accepting payment without being able to supply as ordered:
(1) A person who, in trade or commerce, accepts a payment or other consideration for the supply of goods or services, and who –
a) does not supply all the goods or services within the period specified by the person or, if no period is specified, within a reasonable time;
b) supplies goods or services that are materially different from the goods or services to which the agreement to supply related –
is guilty of an offence and liable to a penalty of not more than –
(2) Sub-section (1) applies whether or not the payment or other consideration accepted by the person represents the whole or a part of the payment or other consideration for the supply of the goods or services.”
Therefore, apart from a contractual liability you might have, you may also be potentially guilty of a statutory offence as a result of Section 19.
These types of incidents tend to be born out of frustration by clients who then complain to Consumer Affairs Victoria.
There is little doubt we have all experienced the problems of dealing with the sheer burden of workload placed upon us within our businesses. All of us can plead guilty to not having met a time-frame in our busy lives. There are numerous ways in which delays occur to our business activities – some within our control, and others clearly beyond our control. Planning requirements are a classic example of the latter.
For that reason it is important to ensure there is a strong line of communications between you and your clients.
It is expected that you would notify your clients of any potential delays. However, where the frustration tends to creep in with clients is when a revised date has been indicated to the client for completion of certain services, and that time is not honoured, and the time is yet again revised with the work still not then being completed. Clients then tend to lose confidence and seek alternative advice. They may then contact the BDAV or go to a government agency such as the Building Practitioners Board or Consumer Affairs Victoria.
It is therefore important that you are aware and mindful of Section 19(1)(a) of the Fair Trading Act and its consequences. If you have a specified time in your contract, it should be honoured and if you are unable to do so, you should ensure that you formally seek an extension of time (in writing), which is mutually agreed upon between you and your client.
The problem can also arise where you have given an estimate (either in writing or verbally) as to how long the design services will take for completion.
If there is no specified time stated in the contract, then the services must be supplied within a ‘reasonable time’. The question is often asked as to what constitutes ‘reasonable time’.
There is no hard and fast definition of what is “reasonable time’, and each case is determined on its own particular facts and circumstances. However, we all know in our own mind what is a ‘reasonable time’ and what would be basically acceptable and acknowledged by our peers in the industry as to what is a ‘reasonable time’ for completion of certain services.
As indicated, there will always be problems beyond your control, but if you have a work overload that results in you not being able to deliver on time and have made commitments to your client, you run the gauntlet of Section 19.
Leaving aside the legal consequences, when committing yourself to time frames with your client, ensure you honour your commitment. In that way, you continue to maintain the excellent reputation of both yourself and of the building design profession generally.