The Local Court decision in the dispute between Atanaskovic Hartnell and the founding partners of Chang, Pistilli & Simmons, which is a remnant from earlier Supreme Court disputes finalised in 2007, has been handed down but the battle may not be over yet.

 

The founding partners of Chang, Pistilli & Simmons made a claim for approximately A$30,000 in fees plus some of their costs for going to the Supreme Court in 2007, which was referred to the Downing Centre Local Court. On the first element, the partners argued that they were entitled to the sum claimed as it represented their share of fees earned by the firm prior to their departure. Details of the relevant work-in-progress, which was entered on 30 June for time attributable to the period 1 to 19 June, had not been entered into the system until after they left the firm and they argued that this was inconsistent with the previous practice of the firm. The plaintiffs contended that this was a breach of a warranty set out in the terms on which they retired from Atanaskovic Hartnell. Magistrate Kok of the Downing Centre Local Court dismissed the claim.

 

John Atanaskovic emphasised the strength of the defendants’ case and was quick to point out that they won on all three issues in the litigation. “As regards the warranty claim, you will see that contrary to what the [Sydney Morning Herald] said yesterday, the ‘higher level of entry’ point and prior recording point were both points in favour of [Atanaskovic Hartnell],” said Atanaskovic. Essentially, Magistrate Kok found that statistics showed a better than usual level of compliance with respect to time entry. This was crucial given the claim for breach of warranty turned on whether the time entry was recorded in accordance with the past practice of the firm.

 

“Also, and importantly but not mentioned by the [Sydney Morning Herald], the magistrate decided that [Atanaskovic Hartnell] did not have any obligation to provide [the plaintiffs] with copies of the thousands of pages of financial documents that [the plaintiffs] had demanded in mid-2007, and that [the plaintiffs] should simply have sought inspection of these documents, which [Atanaskovic Hartnell] had always held available and [the plaintiffs] ultimately took up. Therefore, [the plaintiffs] failed in their claim for compensation for legal expenses involved in pressing their invalid demands for the numerous copies,” said Atanaskovic, who felt that this was the most important win of the litigation.

 

Atanaskovic also revealed that the defendants had on a number occasions suggested settlement, including a formal offer of settlement shortly prior to the hearing, and also attempted to mediate the matter. “At the hearing of the costs issue it will also become clear that, although not mentioned in what Magistrate Kok said at the beginning of her decision, [Atanaskovic Hartnell] consistently and repeatedly tried to have the case simplified, abbreviated and finalised, and for the matter to be settled without a hearing,” said Atanaskovic. “The magistrate was not aware of most of the latter, largely because the relevant correspondence was ‘without prejudice save as to costs’. The relevant correspondence will, however, now be revealed to the magistrate, since efforts to settle early are very relevant to [Atanaskovic Hartnell] getting an indemnity costs order.”