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
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
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.