John Ljubomir Atanaskovic and the persons named in Schedule A trading as Atanaskovic Hartnell v Birketu Pty Ltd

Before: Hammerschlag CJ in Eq

Decision: (1) The judgments in Order 1 and Order 2 of the orders entered by the Court on 16 September 2019 be stayed pending further order of the Court.
(2) The judgment in Order 2 of the orders entered by the Court on 3 July 2020 be stayed pending further order of the Court.
(3) The garnishee orders issued by the plaintiffs and directed to Nine Entertainment Co Holdings Ltd and dated 23 April 2025 are set aside.
(4) The plaintiffs are to pay the defendants’ costs of today.
(5) Liberty to apply on seven days’ notice.

Catchwords: COSTS – Application for stay of costs judgments in favour of the plaintiffs which are under challenge and where the defendants have costs orders against the plaintiffs which are also under challenge – Where, notwithstanding the lack of finality, the plaintiffs issued a garnishee order on a debtor of the defendants seeking enforcement of the full amount claimed – HELD: There should be no enforcement on either side until finality of costs orders on both sides – Plaintiffs’ judgment stayed and garnishee order set aside

Cases Cited: Atanaskovic Hartnell v Birketu Pty Ltd – Costs [2020] NSWSC 779
Birketu Pty Ltd v Atanaskovic (2025) 99 ALJR 321

Category: Costs

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:
D Birch (Plaintiffs)
A Vincent (Defendants)
Solicitors:
Atanaskovic Hartnell (Plaintiffs)
HWL Ebsworth (Defendants)

File Number(s): 2018/00164411

Publication restriction: Nil

Ex Tempore JUDGMENT (Revised)

1. The defendants seek a stay of the operation of orders for costs made in favour of the plaintiffs.

2. Neither the plaintiffs’ costs nor the assessment of costs pursuant to an order in the defendants’ favour against the plaintiffs have been finalised. Both sides’ costs assessments are under challenge by the other.

3. Both sides are well-resourced and sophisticated.

4. On 12 September 2024, before the decision of the High Court of Australia in Birketu Pty Ltd v Atanaskovic (2025) 99 ALJR 321 had been given (which resolved the issue whether the plaintiffs could recover the costs of work done by their employed solicitors), I made comments (on the transcript) reflecting my view that it would be incorrect for there to be, and there should not be, enforcement by either party of any costs orders until finality on the amounts payable each way had been reached.

5. On one version and one version only, the presumptive net cost position might ultimately turn out to be in favour of the plaintiffs, but then again, it may not.

6. In these circumstances and, surprisingly, the plaintiffs saw fit to issue a garnishee order to a debtor of the defendants, seeking to obtain enforcement of their full claim.

7. I regard this as entirely unacceptable in the context of proceedings between a lawyer and his former client where all accounts between them should be brought to finality together: see Atanaskovic Hartnell v Birketu Pty Ltd – Costs [2020] NSWSC 779 at [21] and [24].

8. The epithet “sharp practice” comes to mind.

9. I consider that until such time as all costs orders have been resolved between them, there should be no enforcement of any judgment for costs between them.

10. I make the following orders:

11. The judgments in Order 1 and Order 2 of the orders entered by the Court on 16 September 2019 be stayed pending further order of the Court.

12. The judgment in Order 2 of the orders entered by the Court on 3 July 2020 [1] be stayed pending further order of the Court.

13. The garnishee orders issued by the plaintiffs and directed to Nine Entertainment Co Holdings Ltd and dated 23 April 2025 are set aside.

14. The plaintiffs are to pay the defendants’ costs of today.

15. Liberty to apply on seven days’ notice.

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Endnote

Incorrectly referred to by orders proffered by the defendants, as 7 July 2020. I have corrected the date under the slip rule.