First Abbott Co Pty Ltd v Lynch & Blow Pty Ltd & Anor [1999] QCA 48

IN THE COURT OF APPEAL [1999] QCA 048 SUPREME COURT OF QUEENSLAND Appeal No. 10615 of 1997 Brisbane Before de Jersey CJ Pincus JA Davies JA [First Abbott Corporation P/L v. Lynch & Blow P/L and Anor] BETWEEN: FIRST ABBOTT CORPORATION PTY LTD ACN 007 655 423 (First Defendant) Appellant AND: LYNCH & BLOW PTY LTD ACN 010 099 092 (Fourth Defendant) First Respondent AND McKERRELL LYNCH PTY LTD ACN 010 709 912 (Sixth Defendant) Second Respondent REASONS FOR JUDGMENT - THE COURT Judgment delivered 5 March 1999 1 This appeal arises out of the failure of forty-six glass panels which formed part of a curtain wall facade of a building at 363 Adelaide Street, Brisbane. The building was constructed by White Industries (Queensland) Pty Ltd (“White”), under a contract with the appellant (“Abbott”), which was the developer for Robt Jones (363 Adelaide Street) Pty Ltd (“RJ363") and Robt Jones Investments Ltd -- 1 of 16 -- 2 (“Robt Jones”). A glass subcontractor, Hennessey Glass and Aluminium Systems Pty Ltd (“Hennessey”), constructed the glass facade, using fully toughened glass which had been heated to an extremely high temperature. The learned trial judge found that nickel sulphide inclusions within glass heated to that extent explained the failures. Hennessey had made the decision to use that glass, and had obtained it from McDowall Pacific Pty Ltd. 2 Abbott’s managing director, Mr Lasky, retained the first respondent (“Lynch and Blow”) as project architect, and the second respondent (“McKerrell Lynch”) later took over that role. RJ363 and Robt Jones sued Abbott, White, Hennessey, the respondents, Mr Lynch (the principal architect and a director of the respondents), and the consultant architects Bligh Jessup Bretnall Architects Pty Ltd and Bligh Voller Architects Pty Ltd and their Mr Voller, for damages. The amount claimed represented the expense they had incurred in replacing failed panels of glass and taking protective measures. They obtained judgment for $861.927.52 against Abbott. Abbott in turn obtained judgment for that amount against White, which in turn gained judgment against Hennessey. The plaintiffs’ claims against the respondents (and the consultant architects) were dismissed. Abbott’s cross claim against the respondents was also dismissed. Abbott appeals against that dismissal. 3 The plaintiffs, RJ363 and Robt Jones, alleged in their pleading that Lynch and Blow was the superintendent of the building contract, or alternatively that McKerrell Lunch was, or acted as the superintendent’s representative, and that they owed “a duty of care in relation to the carrying out of architectural work in relation to the design, supervision, construction and/or inspection” of the building. The plaintiffs allege a breach of that duty in a number of respects, essentially in permitting the use of glass which had been toughened in that way. 4 The learned trial judge dismissed the plaintiffs’ claim against the respondents on the basis that -- 2 of 16 -- 3 the duty they owed did not oblige them to investigate the strength of the glass. Apparently regarding Abbott’s claim against the respondents as depending on the plaintiff’s claim against them, she also therefore dismissed Abbott’s claim. We return to this aspect later. For the moment, we will indicate in some greater detail the approach her Honour took. 5 The Judge found that the terms of the retainer by Abbott of Lynch and Blow were partly oral and partly in writing. There was no challenge to that view. The writing was Abbott’s letter of 15th October 1986, which follows: “We refer to your letter of the 17th September, 1986, and your subsequent telephone discussion with Mr Michael Lasky and confirm the agreement with respect to your services on the above project on behalf of Abbott Holdings Limited as follows:- 1. Your total fee will be $100,000 payable $10,000 now (you have already received this payment), with 9 regular monthly payments of $10,000 each, commencing November, 1986, until July, 1987. 2. You will prepare all further drawings which will be necessary as a consequence of the variations which have been agreed regarding floor loadings and all other variations which have been agreed or may subsequently be decided upon. As agreed, you will finalise the alterations to the existing plans as a matter of urgency in order that they may attach to the building contract. 3. You will prepare all drawings relative to matters of detail, not already documented. 4. You will liaise with Abbott in the selection of materials and other items of finishes and arrange for samples to be available for examination as and when required. 5. You will undertake regular inspections of the building progress to ensure a satisfactory quality control and attend all site and consultant meetings. It will be your responsibility to record minutes of all meetings and, in your capacity as Superintendents Representative, report immediately to Abbott in the event any matter should arise necessitating a variation to the agreed plans. We thank you for your assistance to date and look forward to working with you on this project.” -- 3 of 16 -- 4 6 Paragraphs 4 and 5 are especially important. The Judge found that with respect to the glass, the issue of strength was none of the respondents’ concern. That emerges from the following passages in the reasons for judgment: “On 16 October 1986 Mr Lynch went to Melbourne to meet with Mr Lasky and took a number of glass samples one of which was to be selected by Mr Lasky. There was some uncertainty as to the source of the glass but more than likely it came from White Industries who had obtained it from Hennessey. From the evidence of all the witnesses who were present at these early conversations, including Mr Peter White of White Industries, Mr Lynch and Mr Lasky to the extent that he did not deny the conversations and inferences, the architects were only to consider the aesthetic aspects of the glass and in particular the colour, the question of heat loading and the extent to which that would have an impact on the air conditioning; whether curtaining might be required; and particularly whether the glass would comply with Brisbane City Council requirements as to reflectivity. This was a very important consideration at the time in Brisbane because of public views about existing highly reflective highrise buildings in the City. Throughout the oral and, to some extent to be gleaned from the documentary evidence, it was clear that Abbott Holdings was concerned to keep the price down and expressed this from time to time. White Industries was also concerned to keep the cost of the building within the lump price already proposed to Abbott Holdings. This tended to emphasise the relatively limited scope of the project architect’s involvement in the project. ... It was clear from the evidence of the officers of White Industries and to a lesser extent from Mr Lasky, whose memory of these events was not clear but who did not dispute the propositions put to him by counsel for the project architects, and from Mr Bevan Lynch, that Abbott Holdings and White Industries had made decisions to vary aspects of the Building without consulting Lynch & Blow and that the architects were asked to record those changes for the purpose of documentation. Hennessey had quoted on heat strengthened glass and all that was left for Lynch & Blow was to advise on colour and reflectivity and air conditioning matters associated therewith. ... The plaintiffs also maintain that Lynch & Blow became aware prior to completion of construction that toughened glass had been used in the building with the consequence that they ought to have been advised of it. Mr Lynch said in cross-examination that he had become aware “perhaps prior to the completion of the construction” (t/s 2369 l.40) that toughened glass was being used. However he expressed no confidence in his recollection and it seems more likely that he was informed for the first time when he spoke to a representative of Hennessey in December 1988 enquiring about the progress of the investigation of a fractured glass panel. On a number of occasions Mr Jimmieson used the term “toughened” in notes or correspondence after 8 January 1987. In March 1987 Mr Jimmieson had a conversation on site with Mr Falvey from -- 4 of 16 -- 5 Hennesseys after the first batch of glass had arrived and was told by Mr Falvey that the glass in the curtain wall was heat strengthened. He said that he did not notice the manufacturer’s marks on the glass in the course of construction which indicated that the glass was toughened. The preponderance of architectural opinion was that with Lynch & Blow’s retainer it was not something that a competent architect would be concerned to investigate.” 7 Drawing from the passages extracted above and other parts of Her Honour’s reasons, we will shortly mention her Honour’s essential findings because, if justified by a preponderance of credible evidence in the case, they were sufficient to dispose of the claim favourably to the respondents. We should first say that we are satisfied that there was an abundance of evidence supporting these findings. It is certainly not a case where, to adopt language of other cases, her Honour acted on evidence “inconsistent with facts uncontrovertibly established by the evidence” or which was “glaringly improbable”. Neither could it be said she “failed to use or palpably misused” her advantage as trial judge (cf. Devries v. Australian National Railways Commission (1993) 177 C.L.R. 472, 479, 482-3; Abalos v. Australian Postal Commission (1990) 171 C.L.R. 167, 178; Bryant v. Commonwealth Bank of Australia (1996) 70 A.L.J.R. 306,311; State Rail Authority of NSW v. Earthline Construction Pty Limited (1999) H.C.A.3.) Her Honour’s findings have not been shown to be “wrong”. 8 What are these findings? As the Judge has concluded, all Abbott asked Lynch and Blow to do with respect to the selection of the glass for the curtain wall was to consider its colour, reflectivity and expected impact on air conditioning. Lynch and Blow had earlier prepared specifications (for another developer), and although adopted for the instant building contract, those specifications did not require that toughened glass be used in that wall. At no stage did Lynch and Blow recommend the use of toughened glass. Neither was it consulted on whether such glass was appropriate. It was not made aware that toughened glass had been selected until December 1998, after the building had been -- 5 of 16 -- 6 constructed. As her Honour found, as at that time, an architect of ordinary competence, retained in a project incorporating a glass curtain wall in these circumstances, would not have been concerned as to whether the glass to be used was toughened, heat strengthened, laminated or whatever, save insofar as those aspects may have affected aesthetic aspects of the glass and the proposed air conditioning. Those aspects aside, accepted industry practice was to leave the choice to the specialist curtain wall subcontractor, acting on advice from the glass manufacturer. 9 Turning to another aspect, the Judge found that while it is true that Lynch and Blow issued the certificate of practical completion, it did so at the direction of the superintendent, Mr Mulvaney. Lynch and Blow was the superintendent’s representative, and therefore subject to his direction. The Judge had the advantage of hearing the evidence of Mr Mulvaney and Mr Lynch regarding what passed between them leading up to the issue of the certificate of practical completion. Her finding that Mr Mulvaney directed Lynch and Blow to issue the certificate rather than merely authorising it to do so, was reasonably open to her. 10 As to McKerrell Lynch, it did not become involved in the project until October 1987, several months after the certificate of practical completion had been issued. By that time the glass had been installed. McKerrell Lynch did not become aware that the glass used in the curtain wall was toughened until December 1988. It did subsequently issue the certificate of final completion, on 6 February 1989, but no expert architectural witness suggested it had been negligent in doing so. Although McKerrell Lynch was by then aware of the propensity of toughened glass to shatter spontaneously because of nickel sulphide inclusions, by the time of the final certificate only one panel had failed, and an inspection by an independent scientist had not detected nickel sulphide impurity as the cause. In any event, under the building contract, the issue of the final certificate did not release the builder in respect of defects -- 6 of 16 -- 7 which reasonable inspection would not disclose. 11 We return at this stage to the basis of Abbott’s claim against the respondents. As may be seen above, her Honour spent time examining the extent of the respondents’ retainer from Abbott. A question arises how that may have become relevant. 12 Two of the grounds of appeal assume relevance, because they postulate breach of a duty owed by the respondents to Abbott. Paragraph 2(f) of the Notice of Appeal suggests that the learned judge erred in not concluding that Lynch and Blow breached its duty in not recommending to Abbott that fully toughened glass was not to be used. See also paragraph 2(ga). 13 Yet Abbott’s case against the respondents appears to have been pleaded, in Abbott’s amended defence and counterclaim (paragraph 10), on the basis that if Abbott were found liable to RJ363 and Robt Jones, that would be the consequence of the breach by these respondents of their duty (owed in tort - paragraph 1F amended Statement of Claim) to RJ363 and Robt Jones (that is, not to Abbott). Paragraph 10 of the pleading follows: “Should the Plaintiffs make out their claims as against the First Defendant, wholly or partly, then the Plaintiffs’ claims and the First Defendant’s liability in relation thereto are the consequence of the Fourth and Sixth Defendants’ breaches of contract or the negligence of the Fourth Fifth and Sixth Defendants. In that connection the First Defendant refers to and relies upon the allegations of fact and negligence made against it and the Fourth Fifth and Sixth Defendants in the Further Amended Statement of Claim.” 14 But the Judge appears to suggest differently at one point in her reasons for judgment. She refers in the following passage to a duty owed by the respondents to Abbott: “The Lynch & Blow defendants submit that Abbott Holdings does not plead that because of the failure of a duty of care or in breach of the retainer it exposed Abbott Holdings to action (and judgment by consent) by the plaintiffs. But on a proper construction of the amended defence and counterclaim of Abbott Holdings it is clear that Abbott Holdings pleads that if it is found liable to the plaintiffs it is because of the breaches of duty and retainer owed by the Lynch & Blow defendants to Abbott -- 7 of 16 -- 8 Holdings. There is no liability owed by the Lynch & Blow defendants to Abbott Holdings.” (our underlining) 15 If intended in that form, the passage does, in our respectful view, involve a misinterpretation of paragraph 10 of the pleading extracted above. As the second sentence of paragraph 10 makes plain, Abbott relied ultimately against the respondents on the plaintiff’s allegations against the respondents - which set up a claim in negligence. The reference to Abbott in that passage from the reasons for judgment was most likely a slip. 16 We invited written submissions on this issue, which were provided following the conclusion of the oral hearing of the appeal. Having considered those submissions, and the material to which they refer, and although the matter is not absolutely clear, we are satisfied that, consistently with the pleadings, the case was conducted at trial on the basis of a duty owed by the respondents, not to the appellant Abbott, but to RJ363 and Robt Jones, the plaintiffs. It is therefore strictly inappropriate to pursue further those grounds of appeal which posit a duty owed to Abbott. 17 So far as the respondents’ duty of care to the plaintiffs was concerned, her Honour’s relevant finding was that a competent architect would not have been concerned to investigate glass strength in these circumstances. The appellant contends that her Honour erred in concluding that “the conduct of the First and Second Respondents did not fall below the standard of a competent architect engaged on a high-rise `glass tower’ project”. Her approach did, in our view, gain sufficient support from the evidence of architects called as witnesses. 18 The other principal ground of appeal, in the form in which it is set out in the notice of appeal, was that her Honour erred in concluding that: “...the First and Second Respondent’s duty of care to the appellant retainer did not require investigation of or and advice as to the quality or strength of the glass used or proposed to be used in the construction of the curtain wall of the building or the detailed -- 8 of 16 -- 9 investigation of its glass awning.” 19 We have already expressed our view that the terms of the retainer between the respondents and the appellant were not relevant, so far as they might be thought to bear on establishing a claim for damages for breach of that retainer, because the pleaded case concerned the respondents’ liability to the plaintiffs, in negligence. But the way in which the relationship between the respondents and the appellant developed did, nevertheless, bear on the extent of the respondents’ duty to the plaintiffs, which should be taken to explain her Honour’s analysis of those parts of the evidence. That the manner of development of the relationship between the respondents and the appellant may be relevant to the extent of the respondents’ duty to the plaintiffs, is consistent with what was said in Voli v. Inglewood Shire Council (1963) 110 C.L.R. 74,85 and Bryan v. Maloney (1995) 182 C.L.R. 609, 621, and see also Henderson v. Amadio Pty Ltd (1995) 62 F.C.R. 1, 143. That analysis also bore on her Honour’s treatment of the issue involved in the first ground of appeal extracted above - that is, whether the respondents’ approach met “the standard of competent architect engaged on a high-rise `glass tower’ project”. We propose therefore to examine now the challenge to her Honour’s approach. (It is also desirable for us to embark on that examination lest it be felt that we have misinterpreted paragraph 10 of the pleading set out above.) 20 We have set out already her Honour’s relevant conclusions. We were urged that they unduly circumscribed the respondents’ obligation, inconsistently with the letter of engagement of 15 October 1986 and the role they assumed. We have reviewed the evidence in the context of comprehensive submissions by counsel for both parties. In our view, that evidence provided abundant support for her Honour’s approach. There is simply no compelling case to the contrary. Her Honour described the architect’s role as “relatively limited”, especially given that important aspects of the design and the -- 9 of 16 -- 10 materials to be used had been negotiated and agreed upon between Abbott and White before Lynch and Blow was retained; because Abbott was concerned to limit Lynch and Blow’s fees, and also to keep the building cost within the lump sum price it had agreed with White; these matters having been further emphasised to Lynch and Blow through White’s letter of 27 November 1986 which was copied to Abbott. Her Honour’s conclusion that the only aspects of the glass selection left to Lynch and Blow were colour, reflectivity and impact on air conditioning, was reached in the context of Hennessey’s having quoted on bronze reflective heat strengthened glass prior to the architects’ engagement, a quotation incorporated into White’s lump sum price to Abbott, which Abbott had accepted. Further, the change to the type of facade had been agreed upon between Abbott and White before the retaining of the architects. The change to toughened glass, in lieu of heat strengthened glass, came about through recommendations from Ford Solarglas, communicated by McDowell to Hennessey. That Hennessey was to use toughened glass was not notified either to White or Lynch and Blow. As the relationship between the architects and Abbott developed, the architects were left with no role to play with relation to the selection of glass for the curtain wall beyond advising on colour, reflectivity and air conditioning. It was submitted, nevertheless, that the architects should, to avoid potential liability, have expressly excluded from their task any obligation to assess the quality or suitability of the glass in broader respects. Her Honour approached the matter from the other direction: the retainer limited the architects’ obligation to specific matters which did not include glass strength. 21 We have expressed our view that the findings made by the Judge were amply supported by the evidence. We do not intend canvassing the evidence with relation to every finding which was challenged on appeal. It may, however, be helpful if we make some limited reference to some of it, so far as it bore on the principal challenge levelled at the Judge’s reasoning. -- 10 of 16 -- 11 22 Substantial support for the findings comes from the evidence of Mr Lynch, on which her Honour relied. He described a meeting with Mr Lasky on 9 October 1986 at which the glass curtain alternative to Lynch and Blow’s own curtain wall design was proposed by White. Mr Lynch’s evidence went as follows: “A particular glass type was mentioned. It wasn’t the glass type that I was immediately familiar with, and I recorded that in the minutes. I expressed concern with that proposal. I expressed the view that the design that we had developed previously was one that had had a great deal of input over a considerable period of time and we felt that was the best solution. There was no evidence given of any research into this particular alternative being any great depth of research, it was simply nominated.” 23 As to Mr Lasky’s attitude, Mr Lynch said: “... he made it quite clear to me that cost was an absolutely critical consideration for him and that the original proposal that we had documented simply was too expensive.” 24 Mr Lynch made it clear that inquiring into glass strength was beyond the respondents’ purview: “Tell me this: how did you equip yourself to liaise with Abbott Holdings as to the selection of the glass?-- The issues that we were looking at were those issues of finish and in so far as how the finishes had to perform in conformance with certain codes and certain authority requirements we made our investigations. Essentially our role, and the role that we were given, was to assess how these finishes would perform and how they would relate to a total building package. We weren’t being given the opportunity to do a grassroots investigation into the product.” 25 The respondents’ concern was, in short, effectively limited to issues such as colour, reflectivity and thermal performance: “So it’s really not the case that this proposal was put to you as a fait accompli, something which was cast in stone with respect to which you couldn’t have nay input?-- We certainly - it certainly wasn’t presented to us on the basis that it was all over and that we had no opportunity to make comment. Indeed, it couldn’t have been because nobody had tested this particular product with respect to those issues of reflectivity, thermal performance, etcetera, and the issue of colour was still in debate. And your professional architectural input was sought and, indeed, you agreed to give it with respect to those matters?-- That’s correct.” (our underlining) 26 Those passages are illustrative of what we see as substantial evidentiary support for her -- 11 of 16 -- 12 Honour’s relevant findings. Those findings should, in our view, remain undisturbed. It follows that we would order that the appeal be dismissed with costs. 27 At the commencement of the hearing of the appeal, counsel for the appellant sought leave to amend paragraph 2(e)(iii), (f) and (ga) of the amended notice of appeal. The Court then reserved its decision on whether leave should be granted. The proposed amendments go to the nature of the alleged breach of duty. Because we would uphold her Honour’s findings as to the limitation of the respondents’ relevant duty, it has been unnecessary for us to deal with findings on the issue of breach. It is also therefore unnecessary to rule on the question of the proposed amendment. 28 An issue arises with respect to the recovery of costs associated with the appeal. Before formulating that issue, we set out some detail of the way in which the proceedings developed. This appeal was heard together with Appeal No.10616 of 1997, in which the appellants are Robt Jones (363 Adelaide Street) Pty Ltd and Robt Jones Investments Pty Ltd, and the respondents are the present appellant, together with Bligh Jessup Bretnall Architects Pty Ltd and Bligh Voller Architects Pty Ltd. The two appeals arose out of the one action, No. 598 of 1991, in which all parties were included, and which led to the one trial. By deed made in April 1995, the proceedings between the plaintiffs, RJ363 and Robt Jones - and the present appellant, Abbott, were settled on the basis that Abbott would consent to judgment in favour of the plaintiffs, and permit the plaintiffs to conduct the claims against the respondent architects. Abbott did consent to such judgment at the trial, and the plaintiffs thereafter funded Abbott’s prosecution of its claims against the respondents. Following the entry of judgment, the solicitors for the plaintiff, Nicol Robinson Halletts, took over as solicitors for Abbott. Those solicitors have also acted as solicitors for the appellants in the related appeal, No. 10616 of 1997. 29 These circumstances assume significance when one considers that those solicitors prepared an -- 12 of 16 -- 13 appeal record for each appeal without ensuring that the second not duplicate material already in the first. The records are voluminous if not massive. To illustrate the wastage, we note that of the thirty-two witnesses called, the evidence of twenty-seven is reproduced in both records. Further, the same exhibits - 1842 pages - are in both records. Apart from our need to refer to the separate judgments and other limited documentation, such as the notice of appeal, it was possible to conduct the appeals largely by reference to one record only. 30 Early in the hearing we invited counsel for the appellants to put material before the Court to explain why such apparently unnecessary duplication had occurred, in the context of a suggestion that the solicitors for the appellants may be called on to bear personally the costs of the second record. The solicitors relied in that regard on an affidavit by Robert Noel Gallagher, sworn in Appeal No. 10616, on 16 February 1999. (We have been provided also with an affidavit by the respondents’ solicitor, Lionel Richard Lukin, sworn 22 February 1999.) 31 It was plain that the two appeals would be heard together. The affidavit of Mr Gallagher indicates that the question of utilising one record, with comparatively minor supplementation necessary for the second appeal, was never properly raised or explored, and Mr Lukin’s affidavit confirms that. There is no suggestion that the appellants as clients were involved in the decision to commission the preparation of two separate records: it was the decision of the solicitors. If there has been neglect, then it would be unreasonable to burden the clients with the relevant costs. 32 To commission the preparation of these voluminous appeal records, unnecessary for the reasons already given, involved profligacy and neglect, and this Court should not countenance it. The Court has, on a number of occasions, signalled its determination to confine appeal records only to materials which are necessary. We consider this to be a case where the appellants should not be burdened with -- 13 of 16 -- 14 costs so unnecessarily and wastefully incurred. 33 We would order that Messrs Nicol Robinson Halletts bear themselves the costs of and incidental to the preparation of the record in Appeal No. 10615 of 1997, save insofar as that record includes documents not included in the record of Appeal No. 10616 of 1997. 34 The respondents also seek an order for costs against the plaintiffs, Robt Jones (363 Adelaide Street) Pty Ltd and Robt Jones Investments Ltd, the appellants in Appeal No. 10616 of 1997, and they refer to Knight v. FP Special Assets Ltd (1992) 174 C.L.R. 178. The evidence shows that Abbott is insolvent, and that the plaintiffs are behind Abbott’s pursuit of the appeal. By deed in April 1995, the proceedings between the plaintiffs and Abbott were settled on the basis that Abbott would consent to judgment and surrender to the plaintiffs the conduct of its claims against the respondents. Abbott did consent to judgment during the trial, and the plaintiffs thereafter funded the prosecution of Abbott’s claims against the respondents. After Abbott consented to judgment, the solicitors for the plaintiffs commenced to act as solicitors for Abbott also. The respondents put the plaintiffs on notice that in the event of their succeeding in this appeal, they would seek costs against the plaintiffs. The plaintiffs have not opposed such an order. We would therefore order in addition that the plaintiffs in Action No. 598 of 1991, Robt Jones (363 Adelaide Street) Pty Ltd and Robt Jones Investments Ltd, pay the respondents’ costs of and incidental to this appeal to be taxed. -- 14 of 16 -- IN THE COURT OF APPEAL 99.48 SUPREME COURT OF QUEENSLAND Appeal No. 10615 of 1997 Brisbane [First Abbott Corporation P/L v. Lynch & Blow P/L and Anor] BETWEEN: FIRST ABBOTT CORPORATION PTY LTD ACN 007 655 423 (First Defendant) Appellant AND: LYNCH & BLOW PTY LTD ACN 010 099 092 (Fourth Defendant) First Respondent AND McKERRELL LYNCH PTY LTD ACN 010 709 912 (Sixth Defendant) Second Respondent de Jersey CJ Pincus JA Davies JA Judgment delivered 5 March 1999 Judgment of the Court. 1. APPEAL DISMISSED WITH COSTS. 2. MESSRS NICOL ROBINSON HALLETTS TO BEAR THEMSELVES THE COSTS OF AND INCIDENTAL TO THE PREPARATION OF THE RECORD IN APPEAL NO. 10615 OF 1997, SAVE INSOFAR AS THAT RECORD INCLUDES DOCUMENTS NOT INCLUDED IN THE RECORD OF APPEAL NO. 10616 OF 1997. 3. THE PLAINTIFFS IN ACTION NO. 598 OF 1991, ROBT JONES (363 ADELAIDE STREET) PTY LTD ACN 010 612 889 AND ROBT JONES INVESTMENTS LTD ARBN -- 15 of 16 -- 010 457 511 , TO PAY THE RESPONDENTS' COSTS OF AND INCIDENTAL TO THIS APPEAL TO BE TAXED. CATCHWORDS: NEGLIGENCE - architects - whether duty of care extended beyond reporting on aesthetic aspects of building - whether retainer required investigation and advice as to strength of glass - whether findings of trial judge inconsistent with evidence - COSTS - wastage - whether solicitors should bear costs - separate appeal record books were unnecessarily prepared in related matters Devries v. Australian National Railways Commission (1993) 177 C.L.R. 472 State Rail Authority of NSW v. Earthline Construction Pty Limited [1999] H.C.A. 3 Counsel: Mr S. Doyle SC, with him Mr P. Thorp for the appellant. Mr B. O'Donnell QC, and with him Mr D. Ryan for the respondents. Solicitors: Nicol Robinson Halletts for the appellant. Thynne & Macartney for the respondents. Hearing Dates: 15 - 16 February 1999 -- 16 of 16 --