Court of Appeal
Supreme Court
New South Wales
- Summary available
- Amendment notes
Medium Neutral Citation: Atanaskovic Hartnell v Birketu Pty Ltd [2021] NSWCA 201 Hearing dates: 29 March 2021 Date of orders: 3 September 2021 Decision date: 03 September 2021 Before: Basten JA at [1];
Gleeson JA at [2];
McCallum JA at [149]Decision: (1) Appeal dismissed.
(2) Appellants to pay the respondents’ costs.
Catchwords: LEGAL PRACTITIONERS – solicitors – Court’s supervisory jurisdiction – recovery of fees – retainer to investigate dispute between client and third party arising from frauds committed by solicitors’ employee –actual conflict between solicitors’ personal interests and fiduciary duty to client – whether solicitors obtained fully informed consent to act – whether nature of conflict precluded reliance on consent
LEGAL PRACTITIONERS – solicitors – Court’s supervisory jurisdiction – undertaking not to charge fees for work done – whether undertaking given in a professional capacity – whether reliance, loss or consideration required to enforce undertaking – whether Court should prevent solicitors reneging on undertaking
Legislation Cited: Civil Procedure Act 2005 (NSW), s 99
Interpretation Act 1987 (NSW), s 34
Legal Profession Uniform Law (NSW), ss 264, 423(2)(c), 427, 428
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW), Pt 1 r 3.1, Pt 2 rr 2, 12
Uniform Civil Procedure Rules 2005 (NSW), r 20.14
Cases Cited: Ancient Order of Foresters in Victoria Friendly Society Ltd v Lifeplan Australia Friendly Society Ltd (2018) 265 CLR 1; [2018] HCA 43
Blackmagic Design Pty Ltd v Overliese (2011) 191 FCR 1; [2011] FCAFC 24
Boensch v Pascoe [2019] HCA 49; (2019) 94 ALJR 112
Chan v Zacharia (1984) 154 CLR 178; [1984] HCA 36
Coll v Floreat Merchant Banking Ltd [2014] EWHC 1741
Commonwealth Bank of Australia v Smith (1991) 42 FCR 390
Council of the New South Wales Bar Association v Siggins [2021] NSWCA 40
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
Geoffrey Silver & Drake (A firm) v Baines [1971] 1 QB 396
Hasler v Singtel Optus Pty Ltd (2014) 87 NSWLR 609; [2014] NSWCA 266
Hastingwood Property Ltd v Saunders Bearman Anselm (A firm) [1991] Ch 114
In re A Solicitor [1966] 1 WLR 1604
John Fox v Bannister, King & Rigbeys [1988] QB 925
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; [1984] HCA 64
Kuru v State of New South Wales (2008) 236 CLR 1; [2008] HCA 26
Law Society of New South Wales v Harvey [1976] 2 NSWLR 154
Maguire v Makaronis (1997) 188 CLR 449; [1997] HCA 23
Marcolongo v Mattiussi [2000] NSWSC 834
National Mutual Holdings Pty Ltd v The Sentry Corporation (1989) 22 FCR 209
New South Wales Crime Commission v Fleming (1991) 24 NSWLR 116
Phelan v Middle States Oil Corporation (1955) 220 F (2d) 593
Prothonotary of the Supreme Court of New South Wales v Thomson [2018] NSWCA 230
Rahme v Benjamin & Khoury Pty Ltd
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- Case
- [2021] NSWCA 201
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the solicitors were entitled to recover fees for work performed under the retainer, and whether they were bound by an undertaking not to charge for certain work. This undertaking was given in a professional capacity, and the court had to consider whether reliance, loss, or consideration was necessary for its enforcement, and whether the court should prevent the solicitors from reneging on it.
The Court of Appeal upheld the primary judge's decision, finding that the solicitors had not obtained fully informed consent from the client to act in circumstances where their personal interests conflicted with their duty. The court reasoned that the nature of the conflict was so significant that it could not be waived by consent. Furthermore, the court found that the solicitors were bound by their undertaking not to charge for specific work, and that this undertaking was enforceable without proof of reliance, loss, or consideration.
Consequently, the appeal was dismissed, and the appellants, Atanaskovic Hartnell, were ordered to pay the respondents’ costs.
Orders
Orders of the court
(1) Appeal dismissed.
(2) Appellants to pay the respondents’ costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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