John Ljubomir Atanaskovic and the persons named in Schedule A trading as Atanaskovic Hartnell v Birketu Pty Ltd – Costs [2020] NSWSC 779

John Ljubomir Atanaskovic and the persons named in Schedule A trading as Atanaskovic Hartnell v Birketu Pty Ltd – Costs [2020] NSWSC 779

Because AH recovered almost the entirety of the face value of the six invoices, it was entitled to ordinary costs attributable to that claim up to and including 16 September 2019. However, AH's persistence in its unmeritorious claim on the investigation invoice, in circumstances involving misconduct detailed in the second Judgment and the Court's supervisory jurisdiction, warranted an indemnity costs order in Birketu's favour from 10 August 2019. Birketu's late open offer did not make it fair or reasonable to impose the broader indemnity costs consequences it sought.

Jurisdiction
Australia
Judgment Date
19 June 2020
Procedural Posture
Costs in Solicitor Client Fee Proceedings / Costs Determined on the Papers After the First and Second Judgments
Outcome
Judgment entered for the plaintiffs against the first defendant for $16,092.66 as at 29 May 2020; costs apportioned between the parties, with AH receiving ordinary costs for the six invoices and Birketu receiving indemnity costs from 10 August 2019.
Legal Topics
['ordinary Costs' 'indemnity Costs' 'apportionment of Costs' 'solicitors Suing Clients for Unpaid Fees' 'supervisory Jurisdiction' 'chorley Exception']
['costs' 'equity Commercial List' "solicitors' Fees"] ['ordinary Costs' 'indemnity Costs' 'apportionment of Costs' 'solicitors Suing Clients for Unpaid Fees' 'supervisory Jurisdiction' 'chorley Exception']

Case Brief

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Procedural Posture

Costs in Solicitor Client Fee Proceedings / Costs Determined on the Papers After the First and Second Judgments

Legal Issues

  1. 1 ['What costs orders should be made after AH succeeded on six invoices but largely failed on the investigation invoice.' "Whether Birketu should pay AH's costs on the ordinary basis, or whether AH should pay Birketu's costs on the indemnity basis." "Whether AH's rejection of Birketu's open offer should affect costs." "Whether AH's conduct in persisting with the investigation invoice warranted indemnity costs." "Whether AH's inability after Bell Lawyers Pty Ltd v Pentelow to recover its own employees' time should affect the costs discretion."]

Ratio Decidendi

Because AH recovered almost the entirety of the face value of the six invoices, it was entitled to ordinary costs attributable to that claim up to and including 16 September 2019. However, AH's persistence in its unmeritorious claim on the investigation invoice, in circumstances involving misconduct detailed in the second Judgment and the Court's supervisory jurisdiction, warranted an indemnity costs order in Birketu's favour from 10 August 2019. Birketu's late open offer did not make it fair or reasonable to impose the broader indemnity costs consequences it sought.

Court Disposition

Judgment entered for the plaintiffs against the first defendant for $16,092.66 as at 29 May 2020; costs apportioned between the parties, with AH receiving ordinary costs for the six invoices and Birketu receiving indemnity costs from 10 August 2019.

Orders

  • ['Judgment for the plaintiffs against the first defendant for $16,092.66 as at 29 May 2020.' "Birketu is to pay AH's costs of the proceedings up to and including 16 September 2019, attributable to its claim on the six invoices, assessed on the ordinary basis." "AH is to pay Birketu's costs of the proceedings from 10...