Judgment was handed down this morning (Friday, March 12) in the high-cost, low-value dispute Pistilli v Atanaskovic – the case of the missing billables, which was demoted to the Local Court in 2008.
Partners Mark Pistilli, Diana Chang and Danny Simmons left Atanaskovic Hartnell in 2006 to form their own boutique.
They claimed they were diddled out of $30,000 in billings because one AH lawyer, Mark Wilson, didn’t enter his time until after they’d retired.
The plaintiffs said this was not consistent with previous time recording practice as required by a warranty in their retirement agreement.
The former AH partners argued that “previous practice” was that time be posted on a daily/weekly basis or as soon as reasonably practicable after performance of the work, whereas Wilson didnt post the time until 11-29 days after the work had been performed – just after the completion of their calculations for what the departing partners claimed as their share of the loot.
The case defied proportionality, racking up more than $100,000 in the Supreme and Local Court phases before it was even set down for hearing.
In October 2008, senior civil magistrate David Heilpern tore strips off Atanaskovic for letters which HH thought went more to “ego and entrenched position” than costs or delay.
Today it was Magistrate Daphne Kok’s turn. She opened with this little gem:
“The plaintiffs are solicitors. The defendants are solicitors. Both parties are or have been separately legally represented. Not only do the proceedings involve too many lawyers, they involve too many experienced and well-informed lawyers.
Too much heat and emotion has been engendered.
There has been too much distrust. There has been too little courtesy and comity.
Too many words have been generated.
There have been too many submissions including attempts to shore up or bolster earlier submissions and to counteract prior opposing submissions.
Far too much time and money has been spent.”
Tell us what you really think Daph.
In the end, she decided there’d been no breach of warranty by Atanaskovic because the warranty didn’t come into effect until it was signed on July 1, 2006, which was “well after” all of Wilson’s time had in fact been entered (he got the last of it in at 6:25pm the night before).
The court was satisfied that by the time the warranty kicked in, a “higher than usual level of [time] entry” had actually occurred, compared with the firm’s past habits. (When working out what these were, the key was what fee-earners actually did, not what the office manual and administrative staff exhorted them to do.)
Even if the warranty had been effective when Pastilli and co retired at 5pm on June 30, 2006 (i.e. before Wilson finished entering the belated billables), the court compared the firm’s time recording at that point with its time recording at the same period in previous years, and wasn’t convinced it was any worse.
There was therefore no breach of warranty.
The plaintiffs’ tilt at a costs order for proceedings they said they “needed to commence” in order to obtain access to copies of the defendants’ financial records also was knocked back.
Magistrate Kok pointed out that the plaintiffs had launched straight into litigation without even trying to inspect the documents at AH headquarters (an avenue Aters maintained had always been on the table).
Pastilli then tried for the costs of a cross-claim abandoned by the defendants, but Kok shot this down too in the context of their failure to make out the billables claim.
Samantha Bowers reporting from the Drowning Centre