John Ljubomir Atanaskovic and the persons named in Schedule a trading as Atanaskovic Hartnell v Birketu Pty Ltd

Case [2025] NSWSC 424

Supreme Court


New South Wales

Medium Neutral Citation: John Ljubomir Atanaskovic and the persons named in Schedule A trading as Atanaskovic Hartnell v Birketu Pty Ltd [2025] NSWSC 424
Hearing dates: 28 April 2025
Date of orders: 28 April 2025
Decision date: 28 April 2025
Jurisdiction:Equity - Commercial List
Before: Hammerschlag CJ in Eq
Decision:

(1) The judgments in Order 1 and Order 2 of the orders entered by the Court on 16 September 2019 be stayed pending further order of the Court.

(2) The judgment in Order 2 of the orders entered by the Court on 3 July 2020 be stayed pending further order of the Court.

(3) The garnishee orders issued by the plaintiffs and directed to Nine Entertainment Co Holdings Ltd and dated 23 April 2025 are set aside.

(4) The plaintiffs are to pay the defendants’ costs of today.

(5) Liberty to apply on seven days’ notice.

Catchwords:

COSTS – Application for stay of costs judgments in favour of the plaintiffs which are under challenge and where the defendants have costs orders against the plaintiffs which are also under challenge – Where, notwithstanding the lack of finality, the plaintiffs issued a garnishee order on a debtor of the defendants seeking enforcement of the full amount claimed – HELD: There should be no enforcement on either side until finality of costs orders on both sides – Plaintiffs’ judgment stayed and garnishee order set aside

Cases Cited:

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

Birketu Pty Ltd v Atanaskovic (2025) 99 ALJR 321

Category:Costs
Parties: John Ljubomir Atanaskovic and the persons named in Schedule A trading as Atanaskovic Hartnell – Plaintiffs
Birketu Pty Ltd – First Defendant
WIN Corporation Pty Ltd – Second Defendant
Representation:

Counsel:
D Birch (Plaintiffs)
A Vincent (Defendants)

Solicitors:
Atanaskovic Hartnell (Plaintiffs)
HWL Ebsworth (Defendants)
File Number(s): 2018/00164411
Publication restriction: Nil

Ex Tempore JUDGMENT (Revised)

  1. The defendants seek a stay of the operation of orders for costs made in favour of the plaintiffs.

  2. Neither the plaintiffs’ costs nor the assessment of costs pursuant to an order in the defendants’ favour against the plaintiffs have been finalised. Both sides’ costs assessments are under challenge by the other.

  3. Both sides are well-resourced and sophisticated.

  4. On 12 September 2024, before the decision of the High Court of Australia in Birketu Pty Ltd v Atanaskovic (2025) 99 ALJR 321 had been given (which resolved the issue whether the plaintiffs could recover the costs of work done by their employed solicitors), I made comments (on the transcript) reflecting my view that it would be incorrect for there to be, and there should not be, enforcement by either party of any costs orders until finality on the amounts payable each way had been reached.

  5. On one version and one version only, the presumptive net cost position might ultimately turn out to be in favour of the plaintiffs, but then again, it may not.

  6. In these circumstances and, surprisingly, the plaintiffs saw fit to issue a garnishee order to a debtor of the defendants, seeking to obtain enforcement of their full claim.

  7. I regard this as entirely unacceptable in the context of proceedings between a lawyer and his former client where all accounts between them should be brought to finality together: see Atanaskovic Hartnell v Birketu Pty Ltd – Costs [2020] NSWSC 779 at [21] and [24].

  8. The epithet “sharp practice” comes to mind.

  9. I consider that until such time as all costs orders have been resolved between them, there should be no enforcement of any judgment for costs between them.

  10. I make the following orders:

  1. The judgments in Order 1 and Order 2 of the orders entered by the Court on 16 September 2019 be stayed pending further order of the Court.

  2. The judgment in Order 2 of the orders entered by the Court on 3 July 2020 [1] be stayed pending further order of the Court.

  3. The garnishee orders issued by the plaintiffs and directed to Nine Entertainment Co Holdings Ltd and dated 23 April 2025 are set aside.

  4. The plaintiffs are to pay the defendants’ costs of today.

  5. Liberty to apply on seven days’ notice.

**********

1. Incorrectly referred to by orders proffered by the defendants, as 7 July 2020. I have corrected the date under the slip rule.

Endnote

Details
AGLC
John Ljubomir Atanaskovic and the persons named in Schedule a trading as Atanaskovic Hartnell v Birketu Pty Ltd [2025] NSWSC 424
Case
[2025] NSWSC 424
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the case between John Ljubomir Atanaskovic and the persons named in Schedule a trading as Atanaskovic Hartnell, the plaintiffs, and Birketu Pty Ltd, the defendant, revolves around a dispute concerning costs judgments and enforcement orders. The plaintiffs had previously obtained costs judgments against the defendant, which the latter is currently challenging. In response, the plaintiffs issued a garnishee order against a debtor of the defendant, seeking enforcement of the full amount claimed. The defendant applied to the court to stay the enforcement of these costs judgments and to set aside the garnishee order until the finality of the costs orders is established.

The central legal issues before the court were whether there should be any enforcement of the costs judgments while they are under appeal and whether the plaintiffs' garnishee order should be set aside pending the resolution of these appeals. The court needed to balance the plaintiffs' right to enforce their judgments against the defendant's right to appeal the costs orders without undue financial burden. The court also had to consider the potential impact of the garnishee order on the defendant's financial standing and the overall fairness of the proceedings.

The court held that there should be no enforcement of the costs judgments on either side until the finality of the costs orders is established. This decision was based on the principle that enforcing costs judgments while they are under appeal could lead to an unfair financial burden on the defendant and could prejudice the outcome of the appeal. The court also found that the plaintiffs' issuance of a garnishee order against the defendant's debtor, despite the ongoing appeal, was premature and potentially coercive. Consequently, the court stayed the enforcement of the plaintiffs' costs judgments and set aside the garnishee order until the appeals on both sides are finalised.

As a result of the court's decision, the plaintiffs' costs judgments were stayed, and the garnishee order was set aside. This means that neither party can enforce their respective costs orders until the appeals are resolved, ensuring that the financial burden on the defendant is not exacerbated during the pendency of the appeals. The court's decision maintains the balance between the parties' rights and preserves the integrity of the appeal process.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

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Decision

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Ratio Decidendi

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