Atanaskovic Hartnell v Birketu Pty Ltd [2021] NSWCA 201

Atanaskovic Hartnell v Birketu Pty Ltd [2021] NSWCA 201

Atanaskovic Hartnell did not obtain Birketu's fully informed consent to act in light of an actual conflict between its personal interests and fiduciary duty. The Court concluded AH failed to make full disclosure of material facts and potential disadvantages to Birketu. Even if informed consent was possible, the conflict was so profound that it was not proper for AH to accept or act on the retainer. Additionally, the undertaking by Mr Atanaskovic not to charge for the work was given in a professional capacity and should be honoured; resiling from the undertaking warranted preclusion of fee recovery under the Court's supervisory jurisdiction.

Jurisdiction
Australia
Judgment Date
03 September 2021
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeal dismissed.
Legal Topics
['solicitor Conflict of Interest' 'fiduciary Duty' 'undertaking by Solicitor' 'informed Consent (legal Ethics)' "court's Supervisory Jurisdiction" "recovery of Solicitors' Fees"]
['legal Practice' 'civil Procedure' 'equity'] ['solicitor Conflict of Interest' 'fiduciary Duty' 'undertaking by Solicitor' 'informed Consent (legal Ethics)' "court's Supervisory Jurisdiction" "recovery of Solicitors' Fees"]

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Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 ["Whether Atanaskovic Hartnell obtained the fully informed consent of Birketu to act and advise in relation to Birketu's dispute with Deutsche Bank" 'Whether the conflict of interest and duty was so profound that AH could not act for or advise Birketu, even with fully informed consent' 'Whether the work performed by AH was infected by the conflict of interest and whether Birketu obtained any benefit' 'Whether AH ought to be held to the undertaking not to charge fees for the work in question']

Ratio Decidendi

Atanaskovic Hartnell did not obtain Birketu's fully informed consent to act in light of an actual conflict between its personal interests and fiduciary duty. The Court concluded AH failed to make full disclosure of material facts and potential disadvantages to Birketu. Even if informed consent was possible, the conflict was so profound that it was not proper for AH to accept or act on the retainer. Additionally, the undertaking by Mr Atanaskovic not to charge for the work was given in a professional capacity and should be honoured; resiling from the undertaking warranted preclusion of fee recovery under the Court's supervisory jurisdiction.

Court Disposition

Appeal dismissed.

Orders

  • ['Appeal dismissed.' "Appellants to pay the respondents' costs."]