By Matthew Lo and Sora Beebar -
Snapshot
- In Birketu Pty Ltd v Atanaskovic, the High Court found successful law firms can recover costs for litigation performed by their employed solicitors on their behalf.
- The judgment ends the divergence between New South Wales and Victorian case law since the Chorley exception was overturned in 2019.
- This article unpacks the judgment and discusses the underlying legal principles and questions; has the Chorley exception been resurrected and what does this mean for quantifying costs?
On 5 February 2025, the High Court handed down its judgement in Birketu Pty Ltd v Atanaskovic [2025] HCA 2 (‘Birketu v Atanaskovic’). This decision is the latest in a series of decisions since Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29 (‘Bell v Pentelow’) opened Pandora’s box when it overturned the long-standing Chorley exception.
The Chorley exception is that, whilst self-represented parties cannot recover costs for their work or time spent, an exception is allowed for lawyers. This exception was established in the Court of Appeal of England and Wales in London Scottish Benefit Society v Chorley (1884) 13 QBD 872 at 877, although there was Australian precedent of this at the NSW Supreme Court in Pennington v Russell [No 2] [1883] NSWLawRp 47. The Chorley exception allowed self-represented solicitors to recover costs for their work and time spent in litigation.
Despite its century long application, until the decision of Bell v Pentelow, it was unclear whether the Chorley exception applied to barristers, with differing approaches by different states.
