Atanaskovic v Birketu Pty Ltd

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.