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Bolton v Atanaskovic Hartnell

Bolton v Atanaskovic Hartnell

Case [2024] NSWSC 833 11 July 2024

Costs

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Appeal

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Bolton v Atanaskovic Hartnell [2024] NSWSC 833
Hearing dates: 29 May 2024
Date of orders: 11 July 2024
Decision date: 11 July 2024
Jurisdiction: Common Law
Before: Faulkner J
Decision:
(1)   To the extent necessary, time for the plaintiff to file the Summons be extended to the date on which the Summons was filed.
(2)   Summons dismissed.
(3)   The plaintiff pay the defendant’s costs.

Catchwords:
COSTS – costs assessment – costs agreement between solicitor and principal of corporate client – associated third party payor – effect of non-disclosure – costs agreement void – whether solicitor nonetheless entitled to be paid for legal services provided to the client – Legal Profession Uniform Law 2014 (NSW) s 171(1); s 178(1)
COSTS – costs assessment – time to appeal to the Court under UCPR 50.3 – material date for determination by costs review panel under UCPR 50.2 – extension of time

Legislation Cited:
Legal Profession Act 1987 (NSW)
Legal Profession Act 2004 (NSW)
Legal Profession Uniform Law 2014 (NSW) ss 6(1), 171(1), 172, 174, 176, 178(1)(a), 180, 181, 182(1), 195(1)
Legal Profession Uniform Law Application Act2014 (NSW) s 89
Legal Profession Uniform Law Application Regulation 2015 (NSW) cl 54
Supreme Court Act 1970 (NSW) s 75A
Uniform Civil Procedure Rules 2005 (NSW) rr 14.12, 50.1, 50.2, 50.3

Cases Cited:
Allesch v Maunz [2000] HCA 40
Anderson v Hill [2017] NSWSC 1149
Bevan v Bingham [2022] NSWSC 863
Bingham v Bevan (2023) 111 NSWLR 287; [2023] NSWCA 86
Branson v Tucker [2012] NSWCA 310
Carkeek v Aubrey F Crawley & Co [2024] NSWSC 86
Champion Homes Sales Pty Limited v DCT Projects Pty Limited [2015] NSWSC 616
Johnson v Leader Computers Pty Ltd [2014] SASCFC 14; (2014) 118 SASR 408
Lumbers v W Cook Builders Pty Ltd (2008) 232 CLR 635; [2008] HCA 27
Nikolic v Oladaily Pty Ltd [2007] NSWCA 252
Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221
Paynter v Williams (1833) 149 ER 626; 1 Cr & M 809
Wentworth v Rogers [2006] NSWCA 145

Texts Cited:
K Lewison and D Hughes, The Interpretation of Contracts in Australia (2012, Thomson Reuters) at 6.16

Category: Principal judgment
Parties: Nicholas Francis John Bolton (Plaintiff)
John Ljubomir Atanaskovic and Lawson Andrew Jepps trading as Atanaskovic Hartnell (Defendant)
Representation:
Counsel:
E A Walker (Plaintiff)
D Robertson (Defendant)
Solicitors:
Piper Alderman (Plaintiff)
Atanaskovic Hartnell (Defendant)

File Number(s): 2023/333738

JUDGMENT

Introduction

These proceedings are brought pursuant to s 89 of the Legal Profession Uniform Law Application Act2014 (NSW) (LPULAA) which provides for an appeal to the Supreme Court against a costs assessment in the circumstances specified in that provision.
The dispute arises out of legal services which a firm of solicitors, Atanaskovic Hartnell (Firm), provided to a company called Australian Style Holdings Pty Ltd (ASH) up until July 2018. The fair and reasonable costs for those services are roughly $300,000. Nicholas Bolton is associated with ASH. On 5 April 2018,…

Grounds of appeal

[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.

Continue reading Bolton v Atanaskovic Hartnell

Details

AGLC: Bolton v Atanaskovic Hartnell [2024] NSWSC 833
Case: [2024] NSWSC 833
Decision Date: 11 July 2024

CaseChat Overview and Summary

The case of Bolton v Atanaskovic Hartnell dealt with two primary issues concerning the assessment of costs in a legal matter. The parties involved were Bolton, the successful party in the proceedings, and Atanaskovic Hartnell, the unsuccessful party. The dispute centred around the costs agreement between Atanaskovic Hartnell's solicitor and the principal of the corporate client, which was not disclosed to Bolton. This non-disclosure led to the court determining the costs agreement void, raising the question of whether the solicitor was nonetheless entitled to compensation for the legal services rendered.

The court was required to decide whether the solicitor could be paid for the services provided despite the void costs agreement. This issue was examined in light of sections 171(1) and 178(1) of the Legal Profession Uniform Law 2014 (NSW). The court also needed to consider the timeliness of the appeal to the Court under UCPR 50.3 and the material date for determination by the costs review panel under UCPR 50.2, as well as the appropriateness of an extension of time for the appeal.

In its reasoning, the court determined that the non-disclosure of the costs agreement rendered it void, but it also held that the solicitor was entitled to be paid for the services provided, as per the provisions of the Uniform Law. The court found that the provisions of the Uniform Law were designed to protect the interests of the client, and that the solicitor's entitlement to payment was not affected by the void agreement. Regarding the timeliness of the appeal, the court considered the material date for the costs review panel's determination and whether an extension of time for the appeal was warranted. Ultimately, the court found in favour of Bolton and ordered Atanaskovic Hartnell to pay the assessed costs, including the costs of the appeal.

Orders