Atanaskovic v Birketu Pty Ltd

Case [2023] NSWCA 312


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Atanaskovic v Birketu Pty Ltd [2023] NSWCA 312
Hearing dates: 1 May 2023
Date of orders: 15 December 2023
Decision date: 15 December 2023
Before: Ward P at [1]; Kirk JA at [167]; Simpson AJA at [312]
Decision:

1.   If leave be necessary, grant leave to appeal.

2.   Appeal allowed.

3.   Set aside the orders made by the primary judge on 26 October 2022 and in lieu thereof make the following orders:

(a)   The summons filed on 2 August 2022 is dismissed.

(b)   The plaintiffs are to pay the defendants’ costs.

4.   The first and second respondents are to pay the appellants’ costs of the appeal.

Catchwords:

COSTS – General rule that self-represented litigants cannot recover costs for their own time – Chorley exception – Impact of Bell Lawyers v Pentelow on litigants recouping costs of employed solicitors – Inclusion of “remuneration” in definition of “costs” in the Civil Procedure Act 2005 (NSW) – Where the litigant party has obtained a costs order in their favour – Where the litigant party is also the solicitor on the record – Whether an unincorporated law firm litigant is entitled to recover costs for work done by its employed solicitors during the litigation

JUDGMENTS AND ORDERS — Court of Appeal — Review of previous decision of another intermediate Court of Appeal — Whether previous decision interpreted what the High Court said or developed the common law — Court of Appeal not bound by a coordinate court’s interpretation of what the High Court said

Legislation Cited:

Act Interpretation Act 1987 (NSW)

Civil Procedure Act 2005 (NSW), ss 3, 98

Legal Profession Uniform Law Application Act 2014 (NSW), ss 32, 74

Statute of Gloucester (1278) 6 Edw 1 c 1

Supreme Court (General Civil Procedure) Rules 2015 (Vic)

Supreme Court Act 1970 (NSW), s 101

Supreme Court Act 1986 (Vic), ss 3, 24

Uniform Civil Procedure Rules 2005 (NSW), Pt 42

Cases Cited:

Archer Capital 4A Pty Ltd as trustee for the Archer Capital Trust 4A v Sage Group Plc (No 2) [2013] FCA 1098; (2013) 306 ALR 384

Atanaskovic v Birketu Pty Ltd – Costs [2020] NSWSC 779

Atanaskovic v Birketu Pty Ltd [2019] NSWSC 1006

Atanaskovic v Birketu Pty Ltd [2020] NSWSC 573Attorney-General v Shillibeer (1849) 4 Ex 606 [154 ER 1356]

Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15

Banksia Securities Limited v The Trust Company (Nominees) Ltd [2017] VSC 583

Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29

Birketu v Castagnet [2022] NSWSC 1435

Burrows v MacPherson & Kelley Lawyers (Sydney) Pty Ltd [2021] NSWCA 148

Cachia v Hanes (1994) 176 CLR 403; [1994] HCA 14

Commonwealth Bank of Australia v Hattersley (2001) 51 NSWLR 333; [2001] NSWCA 60

Coshott v Commonwealth Bank of Australia [2020] NSWCA 279

Coshott v Commonwealth Bank of Australia [2020] NSWSC 503

Coshott v Spencer…

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AGLC
Atanaskovic v Birketu Pty Ltd [2023] NSWCA 312
Case
[2023] NSWCA 312
Decision Date

CaseChat Overview and Summary

The dispute in *Atanaskovic v Birketu Pty Ltd* concerned the ability of an unincorporated law firm, acting as a litigant in person, to recover costs for work performed by its employed solicitors. The matter came before the Court of Appeal of New South Wales, with Ward P, Kirk JA, and Simpson AJA presiding.

The central legal issues before the Court of Appeal were whether an unincorporated law firm, which was the solicitor on the record for itself, could recover costs for the remuneration paid to its employed solicitors for work undertaken during the litigation. This question required the court to consider the general rule regarding the recovery of costs by self-represented litigants, the exception established in *Chorley*, and the impact of the High Court's decision in *Bell Lawyers v Pentelow* on the recoupment of costs for employed solicitors. The court also had to determine whether it was bound by a previous decision of a coordinate intermediate court of appeal concerning the interpretation of High Court authority.

The Court of Appeal reasoned that the definition of "costs" in the *Civil Procedure Act 2005* (NSW), which includes "remuneration," was broad enough to encompass the costs of employed solicitors. The court distinguished the present case from situations where a solicitor litigant seeks to recover for their own time, noting that the remuneration paid to employed solicitors represents a genuine expense incurred by the firm. Furthermore, the Court of Appeal held that it was not bound by a decision of a coordinate court of appeal when that decision was interpreting High Court authority, as opposed to developing the common law independently.

The Court of Appeal allowed the appeal, setting aside the primary judge's orders and dismissing the plaintiffs' summons. The court ordered that the plaintiffs pay the defendants' costs at first instance, and that the first and second respondents pay the appellants' costs of the appeal.

Orders

Orders of the court

1. If leave be necessary, grant leave to appeal.

2. Appeal allowed.

3. Set aside the orders made by the primary judge on 26 October 2022 and in lieu thereof make the following orders:

(a) The summons filed on 2 August 2022 is dismissed.

(b) The plaintiffs are to pay the defendants’ costs.

4. The first and second respondents are to pay the appellants’ costs of the appeal.

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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