John Ljubomir Atanaskovic and the persons named in Schedule A trading as Atanaskovic Hartnell v Birketu Pty Ltd – Supervisory Jurisdiction [2020] NSWSC 573

John Ljubomir Atanaskovic and the persons named in Schedule A trading as Atanaskovic Hartnell v Birketu Pty Ltd – Supervisory Jurisdiction [2020] NSWSC 573

Except for NEC Swap fees, the Court must withhold assistance from AH in recovering further fees, as AH was in an actual and potential conflict with Birketu, failed to obtain fully informed consent, and its conduct 'infected' all relevant work. Recovery would be unfair and unreasonable, excessive, and contrary to professional standards. The NEC Swap work was not impacted by the conflict and was recoverable. The undertaking, even if not contractually binding, must be honoured in the exercise of the Court’s supervisory jurisdiction.

Parties
Plaintiffs: John Ljubomir Atanaskovic and the persons named in Schedule A trading as Atanaskovic Hartnell; First Defendant: Birketu Pty Ltd; Second Defendant: WIN Corporation Pty Ltd
Jurisdiction
Australia
Judgment Date
15 May 2020
Procedural Posture
Principal Judgment / Judgment After Referral and Full Contest on Facts and Law
Outcome
Judgment for the plaintiffs for $14,930.15 (including GST). Remainder of summons dismissed.
Legal Topics
Supervisory Jurisdiction Over Solicitors, Solicitor's Undertakings, Conflicts of Interest, Solicitors' Costs Agreements
Legal Practitioners Professional Responsibility Costs Supervisory Jurisdiction Over Solicitors Solicitor's Undertakings Conflicts of Interest Solicitors' Costs Agreements

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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

Procedural Posture

Principal Judgment / Judgment After Referral and Full Contest on Facts and Law

Legal Issues

  1. 1 Whether the Court should, in the exercise of its supervisory jurisdiction, preclude the solicitor (AH) from recovering fees for work performed under a conflicted retainer
  2. 2 Whether the solicitor's undertaking precludes recovery of fees claimed in the invoice
  3. 3 Whether the costs charged are unfair and unreasonable and excessive

Ratio Decidendi

Except for NEC Swap fees, the Court must withhold assistance from AH in recovering further fees, as AH was in an actual and potential conflict with Birketu, failed to obtain fully informed consent, and its conduct 'infected' all relevant work. Recovery would be unfair and unreasonable, excessive, and contrary to professional standards. The NEC Swap work was not impacted by the conflict and was recoverable. The undertaking, even if not contractually binding, must be honoured in the exercise of the Court’s supervisory jurisdiction.

Court Disposition

Judgment for the plaintiffs for $14,930.15 (including GST). Remainder of summons dismissed.

Orders

  • Judgment for the plaintiffs for $14,930.15 (including GST)
  • The remainder of the summons is dismissed