Consult Australia Consultant Contract

Regardless of which role taken, the Consult Australia Consultant Contract refers to other documents such as briefs or scopes of services, so it is also important to see and approve these. Check that all annexures are correctly described and (ideally) attached to the Contract. If these documents have not yet been created, consider amending the contract to reflect this. Keep a copy of the executed agreement together with all its associated documents in an individual part of the project file.

Architect in the role of Consultant

The Contract offers considerable protection and low risk if the architect uses it as a client-architect agreement and takes the role of Consultant. The Contract contains a number of protections for the Consultant including:

• a standard of care clause close to that at common law (Clause 2)
• clear and reasonable payment clauses (Clauses 5-9)
• a limitation of liability clause in the Consultant’s favour, with no limitation on the Client in return (Clause 10)
• Consultant rights to suspension and termination (Clauses 15 and 16)
• no requirement to be novated unless agreed to by the Consultant (Clause 18) 
• no indemnity clause requiring the Consultant to assume blanket liability for loss in the event of a breach.

If engaged as the Consultant all these aspects make the new Consult Australia Consultant Contract, in its unamended form, very unlikely to give rise to any of the usual exclusions such as ‘assumed liability’ or ‘waiver of rights’ that may be present generally within professional indemnity insurance policies.

Architect in the role of Client

If considering use of the Contract to engage a subconsultant, with the architect taking the role of Client, some aspects favourable above will become more problematic. For example:

• It is advisable to delete the whole of clause 10 (the limitation of liability in favour of your subconsultant). Otherwise this clause can create a scenario where you are liable to your client for a large claim arising out of an error by the subconsultant, but due to clause 10 you are unable to recover compensation from the subconsultant. In that scenario, the ‘waiver of rights’ exclusion commonly found in professional indemnity policies is likely to leave you uninsured for the amount that cannot be recovered from the subconsultant. If you cannot delete clause 10, you could reduce the risk by copying the entirety of clause 10 into your client-architect agreement (your solicitors may need to amend it to keep terminology consistent) so that you have the protection of an identical limit of liability.
• If you are required to engage subconsultants, you should engage them on ‘back to back’ terms (ie on terms that mirror your obligations under your client-architect agreement with your client). It is unlikely that the Consult Australia Consultant Contract would be ‘back to back’ with most client-architect agreements. The gap between the subconsultant’s obligations and your obligations leaves you at greater risk of liability and claims. Refer Acumen note Architect's liability for specialist consultants.

Note that the above two issues also arose under previous Consult Australia contracts.

A more effective solution is for the client/principal to engage any specialists directly, rather than the architect engaging them as subconsultants. Refer Acumen note: Subconsultant or secondary consultant engagement.