CAN THE ARCHITECT CLAIM SCALE OF ‘MAXIMUM’ FEE IN THE FACE OF TERMINATION
UPDATE: Hardie Development Sdn Bhd. v David Shen I-Tan provided clarity as to the following questions:
The court holds that ‘charging of professional fees by Defendant less or lower than the minimum fees as prescribed by and in breach of the Architects (Scale of Minimum Fees) Rules 1986 does not render the architect’s service contract or contract of engagement with his/her client void or unenforceable so as to deprive the architect of any right to recover his/her fees or remuneration.’
In arriving to such decision, the court hold that:
Applying the principles of law as stated in Co-Operative Central Bank Ltd (In Receivership) v Feyen Development Sdn Bhd; Lori (M) Bhd (Interim Receiver) v Arab-Malaysian Finance Bhd; Asia Television Ltd. & anor v. Viwa Video Sdn. Bhd.; Becca (M) Sdn. Bhd. v. Tang Choong Kuang & anor; with the reasoning of Justice Lee Swee Seng in Matrix Concepts (Central) Sdn. Bhd. v. Ar. Lim Yoke Tiang.
In essence, the findings in Matrix Concepts is still the deciding factor and rest assured that such decisions has given the precedent that it is not illegal for architects to charge below the mandatory scale of minimum fee Rules … then the question, why mandatory?
  MLJU 1103
 Hardie [n1] at 
 Hardie [n1] at : cited St. John Shipping Corporation v. Joseph Rank Ltd.  3 All ER 683
 Hardie [n1] at : cited Narraway v. Bolster (1924) Estate Gazette 83
  3 MLJ 313 (FC)
  3 MLJ 81 (FC)
  2 MLJ 304
  CLJ (Rep) 64
  MLJU 1548
The question of law, whether can the Architect charge below its Scale of Minimum Fee (SOMF) Rules? If so, whether can the Architect claim its fee under SOMF Rules when the letter of appointment (LOA) that has been entered upon does not comply with the SOMF? If so, whether ‘letter of release’ (LOR) was obliged to be released without delay even though the Architect holds a lien over the document pending payment of its fee, when the LOA specified in contrast with the provision of the Architects Rules 1996?
The old case of Seniwisma S & O Akitek Planner v Perusahaan Hiaz Sdn Bhd  held that the Architect’s fee was pursued under SOMF but the court was extremely careful in awarding based on SOMF and subsequently set-aside appeal, instead, due to the nexus of facts points toward the approved layout deviates from their proposal, implying that the appellant's layout has not been used as the approved layout. Whereupon the court continues to guide us that Scale of Fee (SOF) without the word minimum is for the purpose of to check recalcitrant consultants who impose exorbitant fees to the public. In the same vein, court is ready to accept the legitimacy of consultant charging below the SOF. As to the question, can the Architect charge below its SOMF Rules, the legal position has always been, ‘yes’ but specifically it remains untested.
A recent appeal case of Ar.Lim Yoke Tiang v Matrix Concepts (Central) Sdn Bhd , posted the following ratio-decidendi, a term in the contract cannot be changed merely by reason of a termination of services; whereupon an agreement that does not conform to SOMF, i.e. on lump-sum, shall not be based upon SOMF as its basis of claim; as SOMF is only binding to the architect but not the contracting party; whereupon LOA is clear that Letter of Release (LOR) was obliged to be released without delay, maintaining the Architects Rules 1996 on a lien over the documents pending to be paid, has no application, when the LOA was prioritised over the Architects Rules 1996.
As for this Ar.Lim Yoke Tiang v Matrix Concepts (Central) Sdn Bhd , we have yet to see if LAM actually takes the trouble to sanction the architect for procuring works below the SOMF and as usual, nobody can have access to Board of Architects (LAM)’s proceeding on issues of professional-misconduct, which may have been conducted in an opaque-manner.
Concluding, just like the saying “unexpected in a case where in a competitive market one has to try to anchor in the work and secure the project”, it is no secret that most Architect has not played by the Architects Rules 1996 in imposing the mandatory SOMF-Rule. The court is ready to accept the reality that SOMF is only binding to the architect but not the contracting party. In response, LAM has since mooted the idea of ‘stakeholder’ to collect fee on behalves of the architects, but that has yet to see the light at the end of the tunnel. In a nutshell, court will not make a contract for the parties when there is none, more so, court will not apply ‘extra-contractual’ concepts when there is a contract binding the parties, that include superseding any rules contradicting the true-intention of the parties in contract.
 2 MLJ 37
 Mott Macdonald (Malaysia) Sdn Bhd v. Hock Der Realty Sdn Bhd  MLJU 342
 Sri Palmar Development & Construction Sdn Bhd V Jurukur Perunding Services Sdn Bhd  6 MLJ 166
 The late Ar. Kington Loo, did mention that there was a test-case on this but it did not survive due to the demise of the architect.
 1 LNS 35 (CA)
 Hughes v Lenny (1839) 5 M. & W. 183: lien to recover its due
 As per studies carried by PAM
SHOULD I SUE MY ARCHITECT OR REPORT TO THE BOARD?
Two-occasions provided me inspiration for this writing. One, a situation where an-architect is challenging the-Institute over wrongful-removal on the register; two, a-question from my Graduate-Architect, preparing for her part-III (equivalent to RIBA-PartIII), with regard to disciplinary-action taken for Professional-misconduct. The issue may have been similar but the context is different. If ever, it can be a question in the Professional-Examination for LAM-PartIII, ‘Write a note to explain to your colleague, who has been called upon for disciplinary-action by the Board of Architect LAM, as pertaining to his defence, arising from his negligence act of providing a service under the Act’.
I reckoned that it is a little-unfair to pose such a question, aptly to be answered by a lawyer, but knowing the law is fundamental to the practice as an Architect, as the saying goes, the Architect is worth, not just by his drawing but by his ‘statutory-undertakings’ under the law, similar to that of other professions.
The issues here are, whether can the-Board or the-Institute take actions against its member based on its inherent jurisdiction to interfere into its member’s right for livelihood? If so, whether a proper avenue for recourse is accorded to its member to be heard, as the bed-rock of ‘natural-justice’? If so, whether ‘misconduct’ has actually been breached when its member is yet to be found guilty of a crime in the court of competent jurisdiction? Finally, are the members of the committee or council of the-Board or the-Institute have immunity against any-claim by the members?
Foremost, the background. The architect is a profession governs by the-Act and such legislation provided for the setting up of the Board to overlook the profession of Architects and by annexure to the criteria of being a Professional-Architect one has also a corporate-member of the institute, a ‘social-club’ for learned-society, bearing no-statutory power.
Secondly, the Malaysia-law provided for, the constitution as the supreme-law of the land, hereinafter class-A; the-Act, with it provided for its-Rule, hereinafter class-B; the-Board’s discretion as in Order and Circulars, hereinafter class-C; and the-Institute’s Advisory and Rulings, hereinafter class-D.
Thirdly, the Professional-liabilities as in professional-negligence and professional-misconduct. One has to bear in mind, professional-negligence does not equal professional-misconduct. Thus, what constitute professional-negligence and professional-misconduct? Can the-Board or the-Institute administer action pertaining to both?
Whether can the-Board or the-Institute take actions against its member based on its inherent jurisdiction to interfere into its member’s right for livelihood? Legally, the-Board is the creature created by the-Act, within it, stipulated that it can take action against its member, only-its member, via the disciplinary-committee, subject to hearing and right of representation, upon the recommendation of the investigation-officer; limited to only defined-misconducts; including the act of ‘search and seizure’ by an ‘authorised-officer’, except with ‘lawful-authority’; a subject of much-controversy. But when the ‘counter-claim’ was premised on its member’s right for livelihood, it is a ‘whole new-level’ of consideration, beyond the ambit of the-Board. It involves one, the question of conflict of law i.e. class-B versus class-A; two, the question of the ‘right-forum’ to hear the case with regard to an issue of conflict of law i.e. class-B versus class-A, ultimately, answering whether a proper avenue for recourse is accorded to its member to be heard, as the bed-rock of ‘natural-justice’?
Foremost, the constituents of the disciplinary-committee go against the fundamental principle of ‘natural-justice’ to be heard in the court of competent jurisdiction. The question, are the constituents of the disciplinary-committee equal to the court of competent jurisdiction, i.e. the High-Court of the country? Whether the disciplinary-committee has the jurisdiction to hear matter pertaining to restriction of a member’s constitutional rights for the preservation of livelihood?
Careful reading of the misconducts is generally and mostly related to the matter of criminality, beyond the term of reference by the disciplinary-committee’s jurisdiction. General reading of the-Act, revealed as though the disciplinary-committee has a wide range of jurisdiction to decide upon its member’s fate. But in fact, the disciplinary-committee has only a very narrow jurisdiction. The correct way, is that the disciplinary-committee is to convict its member, only when the member is found guilty by the court of competent jurisdiction. The-Board cannot take actions against its member based on its inherent jurisdiction to interfere into its member’s right for livelihood, without the conviction from the court of competent jurisdiction. With such, there is an apparent conflict of law i.e. class-B versus class-A.
With regard to the act of ‘search and seizure’ that can only be made lawful, by making a ‘police-report’, obtaining the relevant-warrant, prior to the act of ‘search and seizure’. Imagine if you have a situation of a ‘trigger-happy’ enforcing-officer, by each and every trade or professions, competing with the rest of the ‘law-enforcing’ personnel in the country, wouldn’t we revisit the era of the wild-wild west? Even ‘law-enforcing’ personnel requires a warrant to ‘search and seizure’. So, in reality, it is a provision good in theory, lousy in application. The-Institute with only, class-D jurisdiction, has no jurisdiction on this area.
If so, whether a proper avenue for recourse is accorded to its member to be heard, as the bed-rock of ‘natural-justice’? The correct forum must commence in the court of competent jurisdiction, not the disciplinary-committee. The disciplinary-committee should under the recommendation of the investigation-officer pursue legal proceeding in the court of competent jurisdiction. Thereupon, conviction, shall the disciplinary-committee take remedial-action against the member. Whether ‘misconduct’ has actually been breached when its member is yet to be found guilty of a crime in the court of competent jurisdiction? Thus, in the same vein, the short-answer is no.
Another matter that is unusual is that appeal is only available via the appeal-board only on a narrow matter pertaining to refusal or registration and removal of registration; taking into consideration that these matters interfere into its member’s right for livelihood; warrant that the appeal-board to be presided over by a High-Court Judge. It means to say, any other matter not falling within these refusal or registration and removal of registration are not subject to appeal? As such, contravening ‘natural-justice’? Any difference if the matter of professional-misconduct be heard in the High-Court instead of the disciplinary-committee as it involves interference into its member’s right for livelihood, where the options of further appeal to the Appeal-Court and Federal-Court are available? The drafter of this Act is obviously aware of the gravity it involves and the limitation as to the jurisdiction of the disciplinary-committee.
Finally, are the members of the committee or council of the-Board or the-Institute have immunity against any-claim by the members? Public-servant is accorded immunity against any cross-claims arising from negligence. So, the question is, are the-Board and the disciplinary-committee, public-servants? Public services shall consist of the Federal and State General Public Service, the Joint Public Services, the Education Service, the Judiciary and the Legal Service and the Armed Forces. For all intents and purpose, Statutory Bodies and the Local Authorities are also considered as parts of the Public Services. This is because both these autonomous bodies resemble the Public Services in many respects since they adopt the procedures of the Public Services pertaining to appointments, terms and conditions of service and the remuneration system. Therefore, the-Board is a Statutory Bodies, its constituents including that of the disciplinary-committee can be construed as public-servants, enjoying immunity in the context of ‘good-faith’. However, that cannot be applied to members or councils of the-Institute, as they can sue and be sued, collectively and individually.
However, a point has to be taken of the inherent nature of the ‘possibility of bias’ on account of the members of the-Board, the-Institute and the-disciplinary-committee, as they are appointed among the peers of practising professionals, whom by strictly to the law, are also ‘competitors’ in some cases, serving the same clients whom are limited in the industry and not from members of the public-servant whom are answerable to only the government. This is a domain for challenge in a sense of mala-fide.
Concluding, what constitute professional-negligence and professional-misconduct? Can the-Board or the-Institute administer action pertaining to both? Professional-negligence, as in tort-liability has to be held by the court, not the-Board nor the-Institute. Whereas, professional-misconduct, as outlined by the-Act are illicit-commissions; non-disclosure of conflict of interest, fraud/misrepresentation, any act of disgrace, non-compliance to the-Act, as to conditions of registration, procuring under fraudulent misrepresentation, concealing of facts to the disciplinary-committee, contravention of restriction, causes sufferings prior-registration, or post-registration, criminal-conviction, withdrawal of qualifications, unsound-mind and bankruptcy or incapacity. These have nothing to do with professional-negligence.
So, technically unsatisfied clients should not complaint to the-Board on matters of professional-negligence. Instead, they should just sue the architect in the court of competent jurisdiction. The-Board should only administer action pertaining to professional-misconduct, upon the conviction of the court. Whereas the-institute can only administer action upon the conviction of the-Board.
Postscript: If the question of law is with regard to the matter of the-Institute alone, as a ‘social-club’ there is very little statutory-jurisdiction on the matter of professional-misconduct, especially so with the existence of the-Board. The-Institute shall not eclipse the-Board.
 Architects Act 1963 (Amended 2015)
 Board of Architect Malaysia (LAM)
 S.4(1) Architects Act 1963
 Licensed to practice architecture, carries the title Ar., with post-nominal P.Arch, ALAM.
 Being Associate of Pertubuhan Arkitek Malaysia APAM
 Institute of Architects Malaysia (PAM)
 The Federal Constitution of Malaysia 1957
 Architect Rules 1996 (Amended 2015)
 LAM Disciplinary-Order
 As in PAM Arbitration-Rules and the sort
 S.3(1) Architects Act 1963
 S.4(1)(c) Architects Act 1963
 S.7 Architects Act 1963
 S.15A(1)(b) Architects Act 1963
 S.6(a)(i) Architects Act 1963
 S.5(a)(ii) Architects Act 1963
 S.15A(5) Architects Act 1963
 S.15A(1)(a) Architects Act 1963
 S.15A(2) Architects Act 1963
 S.34B Architects Act 1963
 S.34B(1) Architects Act 1963
 S.34B(5) Architects Act 1963
 Article 5(1) Federal Constitution of Malaysia 1957
 Woolmington v DPP  UKHL 1: presumption of innocence
 S.28(2) Architects Act 1963
 S.28(1)(a) Architects Act 1963
 S.28(1)(b) Architects Act 1963
 S.29 Architects Act 1963
 S.28(1)(a) Architects Act 1963
 S.28(1)(b) Architects Act 1963
 Articles 132(3) and 160(2) Federal Constitution of Malaysia 1957
 Article 132 Federal Constitution of Malaysia 1957
 S.3(2) Architects Act 1963
 S.15A(2)(a) Architects Act 1963
 S.15A(2)(b) Architects Act 1963
 S.15A(2)(c) Architects Act 1963
 S.15A(2)(d) Architects Act 1963
 S.15A(2)(e) Architects Act 1963
 S.15A(2)(f) Architects Act 1963
 S.15A(2)(g) Architects Act 1963
 S.15A(2)(h) Architects Act 1963
 S.15A(2)(i) Architects Act 1963
 S.15A(2)(j) Architects Act 1963
 S.15A(2)(k) Architects Act 1963
 S.15A(2)(l) Architects Act 1963
 S.15A(2)(m) Architects Act 1963
 S.15A(2)(n) Architects Act 1963
 S.15A(2)(o) Architects Act 1963
 S.15A(2)(p) Architects Act 1963
Many years ago, the Board had in placed the Noblest Scale of Fee called the Scale of Minimum Fee Rule (SMFR) and one Towering Figure of that Time, almost sharing the same stature of “Lord of the Rings - Gandalf”, our grandfather Architect nick-named “The King of the Loo” has risen to awake newbies architect that “Thou Shall Not Undercut Your Professional Fee” or “You shall Face the Full Force of the Board!”. Such “commandments” shiver through the spines of every newbies architects to the extent that one committed suicides because of such!
In reality, with the exception of Government Jobs, no private practice actually go by it or rather openly admitted to have not complying to SMFR, a staggering FACT shown by the polls conducted by both the Board and the Institute. Yet, the noble of noblest Board happily admitted that fact and the irony is these practices agree that such Rule shall be continued for perpetuity as it safeguard the interest of the practitioners. Now you know why Newbies are forced to take jobs at ridiculously low price as nobody has faith in this archaic rule.
For the benefits of Newbies so that they are not caught red-handed of committing such heinous “crime”, this is how the BIG BOYS did it. Assuming Construction Cost = RM100,000,000.00, “market Fee” (1.2%) = RM 1,200,000.00. What is in their appointment letter reflects, Construction Cost = RM30,000,000.00 and the Scale of Fee Rule (4%) = RM 1,200,000.00. Even with the compliance of the SMFR, one is able to manipulate the figures and that is how BIG FIRMS are doing to protect the interest of their shareholders. You are technically in compliance to the Rule.
SMFR is again going to be the same stale subject in the Professional Qualifying Examination but as a matter of surviving the Red Ocean to the Newbies, pledging your alliance to such will only make you death by hunger unless one is born with a silver spoon.
I am sharing these information with a caveat that these information is for educational purpose only and shall not be taken as an advice be it legal or otherwise. You should seek proper advice to your case with the relevant professionals. The author cannot guarantee the accuracy of the information so provided here.