Birketu v Castagnet [2022] NSWSC 1435

Birketu v Castagnet [2022] NSWSC 1435

The abrogation of the Chorley exception by the High Court in Bell Lawyers v Pentelow precludes a firm of solicitors acting for itself from recovering costs for work performed by its employed solicitors, as such recovery would perpetuate a privilege or unequal treatment not available to non-lawyer litigants. The employed solicitor exception does not apply to the employed solicitors of a litigant law firm acting for itself; it applies where a party (such as a government or corporation) is represented in litigation by its employed solicitor, not to law firms acting on their own behalf. Therefore, under the costs order in question, the Firm is not entitled to recover costs for work done by...

Parties
First Plaintiff: Birketu Pty Ltd; Second Plaintiff: WIN Corp Pty Ltd; First Defendant: Maurice Jocelyn Castagnet; Second Defendant: John Ljubomir Atanaskovic, Anthony Geoffrey Hartnell, Jeremy Martin Kriewaldt, Michael John Sophocles, Jon Thomas Skene & Lawson Andrew Jepps, trading as Atanaskovic Hartnell
Jurisdiction
Australia
Judgment Date
26 October 2022
Procedural Posture
Principal Judgment / Final Judgment at First Instance
Outcome
Declaration made that second defendants are not entitled to recover costs for work done by their employed solicitors; otherwise the summons is dismissed; costs partially awarded to plaintiffs.
Legal Topics
Chorley Exception, Self Represented Solicitors, Costs Assessment, Employed Solicitor Exception, Prerogative Relief, Declaratory Relief
Costs Administrative Law Chorley Exception Self Represented Solicitors Costs Assessment Employed Solicitor Exception Prerogative Relief Declaratory Relief

Case Brief

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Parties

Birketu Pty Ltd

First Plaintiff

WIN Corp Pty Ltd

Second Plaintiff

Maurice Jocelyn Castagnet

First Defendant

John Ljubomir Atanaskovic, Anthony Geoffrey Hartnell, Jeremy Martin Kriewaldt, Michael John Sophocles, Jon Thomas Skene & Lawson Andrew Jepps, trading as Atanaskovic Hartnell

Second Defendant

Procedural Posture

Principal Judgment / Final Judgment at First Instance

Legal Issues

  1. 1 Whether a litigant law firm can recover costs for work done by its employed solicitors under a costs order after the abrogation of the Chorley exception in Bell Lawyers v Pentelow
  2. 2 Whether a costs assessor's decision to consider the recoverability of such costs is reviewable by certiorari or prohibition
  3. 3 Whether declaratory relief should be granted to determine this question prior to completion of the costs assessment proceeding

Ratio Decidendi

The abrogation of the Chorley exception by the High Court in Bell Lawyers v Pentelow precludes a firm of solicitors acting for itself from recovering costs for work performed by its employed solicitors, as such recovery would perpetuate a privilege or unequal treatment not available to non-lawyer litigants. The employed solicitor exception does not apply to the employed solicitors of a litigant law firm acting for itself; it applies where a party (such as a government or corporation) is represented in litigation by its employed solicitor, not to law firms acting on their own behalf. Therefore, under the costs order in question, the Firm is not entitled to recover costs for work done by...

Court Disposition

Declaration made that second defendants are not entitled to recover costs for work done by their employed solicitors; otherwise the summons is dismissed; costs partially awarded to plaintiffs.

Orders

  • Declare that under the costs order made in proceedings 2018/164411 on 19 June 2020 being the subject of the cost assessment proceeding 2022/029349 before the first defendant, the second defendants are not entitled to recover costs for work done by the employed solicitors of their own firm.
  • Otherwise dismiss the summons.