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

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 – Supervisory Jurisdiction [2020] NSWSC 573 Hearing dates: 8 April 2020 Decision date: 15 May 2020 Before: Hammerschlag J Decision: Judgment for the plaintiffs for the additional amount of $14,930.15 (including GST). The remainder of the summons is dismissed. Catchwords: LEGAL PRACTITIONERS – Court's supervisory jurisdiction over solicitors – Solicitor's undertaking – Court's concern with honesty of its officers – Solicitor seeking recovery of fees for services rendered under a retainer accepted by the solicitor where his interests and those of the client were in actual and potential conflict – Where work done under the retainer benefitted solicitor and was capable of being used to his advantage in a dispute with his client – Where solicitor says retainer is enforceable because he obtained the client's fully informed consent – Whether such consent, if obtained, would have been effective – Where solicitor gave an undertaking not to charge fees for work done and covered by the retainer – Where solicitor asserts that he is not bound by undertaking because no consideration was given for it and it was not given in a professional capacity – Whether undertaking was given in solicitor's professional capacity – Whether Court should exercise supervisory jurisdiction to preclude solicitor from recovery of fees – HELD – Fees excessive, unfair and unreasonable – Undertaking should be complied with – Solicitor may not recover fees for work done while in a position of conflict. Legislation Cited: Legal Profession Uniform Law (NSW) s 25 Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW) rr 6.1, 12.1 Uniform Civil Procedure Rules 2005 (NSW) r 20.14 Cases Cited: John Ljubomir Atanaskovic and the persons named in Schedule A trading as Atanaskovic Hartnell v Birketu Pty Ltd [2019] NSWSC 1006 United Mining & Finance Corporation Limited v Becher [1910] 2 KB 296 Wade v Licardy (1993) 33 NSWLR 1 Re Gray [1892] 2 QB 440 R & T Thew Limited v Reeves (No 2) [1982] 1 QB 1283 Countrywide Banking Corporation Limited v Kingston [1990] 1 NZLR 629 Australian Guarantee Corporation (NZ) Ltd v East Brewster Urquhart & Partners [1990] 2 NZLR 167 McIlriath v Ilkin [2007] NSWSC 911 Udall v Capri Lighting Limited [1987] 3 All ER 262 John Fox v Bannister, King & Rigbeys [1988] QB 925 Myers v Elman [1940] AC 282 Commissioner of Inland Revenue v Bhanabhai [2006] 1 NZLR 797 McNamara Business & Property Law v Kasmeridis (2007) 97 SASR 129 Athanasiou v Ward Keller (6) Pty Ltd (1998) 8 NTLR 23 Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Baalman (JS & JH) v Dare Reed (1984) 52 ACTR 3 Maguire v Makaronis (1996) 188 CLR 449 Law Society of New South Wales v Harvey [1976] 2 NSWLR 154 Tyrrell v Bank of London 11 ER 934 Spector v Ageda [1973] Ch D 30 Moss v Moss (No 2) (1900) 21 LR (NSW) Eq 253 Chan v Zacharia (1984) 154 CLR 178 United Dominions Corporation Limited v Brian Pty Ltd (1985) 157 CLR 1 Beach Petroleum NL v Kennedy (1999) 48 NSWLR 1 Texts Cited: GE Dal Pont, Lawyers' Professional Responsibility (6th ed, 2017, Thomson Reuters) Category: Principal judgment 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: AJ Sullivan QC with J Hutton – Plaintiffs M Ashhurst SC with A Vincent – Defendants