Pantzer v Wenkart

Case [2007] FCAFC 27

FEDERAL COURT OF AUSTRALIA

Pantzer v Wenkart [2007] FCAFC 27

APPEALS – application to re-open appeals after final orders have been entered

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 referred to
DJL v The Central Authority (2000) 201 CLR 226 applied
Bailey v Marinoff (1971) 125 CLR 529 referred to
Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 referred to
Autodesk Inc v Dyason[No 2] (1993) 176 CLR 300 referred to

WARREN PANTZER v THOMAS RICHARD WENKART, ANN SEXTON AND INSPECTOR GENERAL IN BANKRUPTCY
NSD 2457 OF 2005

WARREN PANTZER v THOMAS RICHARD WENKART, ANN SEXTON AND INSPECTOR GENERAL IN BANKRUPTCY
NSD 2459 OF 2005

BLACK CJ, RYAN AND MOORE JJ
13 MARCH 2007
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

     NSD 2457 OF 2005

NEW SOUTH WALES DISTRICT REGISTRY
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

WARREN PANTZER
Appellant

AND:

THOMAS RICHARD WENKART
First Respondent

ANN SEXTON
Second Respondent

INSPECTOR GENERAL IN BANKRUPTCY
Third Respondent

JUDGES:

BLACK CJ, RYAN AND MOORE JJ

DATE OF ORDER:

13 MARCH 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The motion on notice is refused.

2.The first respondent pay the appellant's costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

     NSD 2459 OF 2005

NEW SOUTH WALES DISTRICT REGISTRY
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

WARREN PANTZER
Appellant

AND:

THOMAS RICHARD WENKART
First Respondent

ANN SEXTON
Second Respondent

INSPECTOR GENERAL IN BANKRUPTCY
Third Respondent

JUDGES:

BLACK CJ, RYAN AND MOORE JJ

DATE OF ORDER:

13 MARCH 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

  1. The motion on notice is refused.
  2. The first respondent pay the appellant's costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

     NSD 2457 OF 2005

NEW SOUTH WALES DISTRICT REGISTRY

NSD 2459 OF 2005
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

WARREN PANTZER
Appellant

AND:

THOMAS RICHARD WENKART
First Respondent

ANN SEXTON
Second Respondent

INSPECTOR GENERAL IN BANKRUPTCY
Third Respondent

JUDGES:

BLACK CJ, RYAN AND MOORE JJ

DATE:

13 MARCH 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT

BLACK CJ

  1. On 28 September 2006, the Court gave judgment in two appeals in which there were challenges to orders made by a judge of this Court setting aside certificates of taxation of costs.  The Full Court allowed each appeal and published its reasons: see Pantzer v Wenkart [2006] FCAFC 140.

  2. Nearly two weeks later, after business hours on 11 October 2006, Dr Wenkart’s solicitors sent a letter to my associate by facsimile requesting that “the Full Court re-list both appeals for the purposes of varying the orders made in each appeal”.  My associate replied by facsimile the following day, noting that Dr Wenkart had not made any application to the Court since judgment had been delivered and suggesting that any…

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AGLC
Pantzer v Wenkart [2007] FCAFC 27
Case
[2007] FCAFC 27
Decision Date

CaseChat Overview and Summary

In the case of Pantzer v Wenkart, the appellant, Mr Pantzer, sought to appeal the orders of a primary judge concerning a bill of costs related to the administration of a bankrupt estate. The respondent, Dr Wenkart, opposed the appeal and subsequently sought to vary the orders made by the primary judge. The Full Court was tasked with deciding whether the orders of the primary judge should be varied and whether the respondent's motion on notice should be allowed.

The court needed to determine whether the respondent could request undelivered reasons from an intermediate appellate court without seeking leave to appeal from the High Court, and whether such a request could be made after the orders of the Court had been entered. Additionally, the court had to consider whether the respondent's grounds of contention were valid and whether they effectively challenged the primary judge's orders.

The Full Court found that the respondent was not entitled to request undelivered reasons from the appellate court without leave from the High Court, even after the orders of the Court had been entered. The court also found that the grounds of contention raised by the respondent did not effectively challenge the primary judge's orders and were therefore invalid. The Full Court rejected the respondent's grounds of contention and dismissed the motion on notice.

The Full Court ordered that the motion on notice be refused and that the respondent pay the appellant's costs. The court found that the respondent's grounds of contention were not valid and therefore could not effectively challenge the primary judge's orders. The Full Court dismissed the respondent's motion on notice and ordered that the respondent pay the appellant's costs.

Orders

Orders of the court

1. The motion on notice is refused.

2. The first respondent pay the appellant's costs.

1. The motion on notice is refused.

2. The first respondent pay the appellant's costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The ground set out at [16] above was abandoned during the hearing of the appeal because it was not an argument in support of the primary judgment and therefore not a contention. Grounds 3 and 5 in NSD2459 of 2005 (grounds 3 and 6 in NSD2457 of 2005) did not support the primary judgment and were not contentions. In substance they challenged paragraph 2 of the orders of the primary judge remitting the bill of costs to the taxing officer to be taxed again in light of her Honour's reasons. If Dr Wenkart had wished to challenge order 2 he should have cross-appealed. He did not. The remaining grounds raised in the notices of contention, although not expressly addressed, must be taken to have been rejected. That necessary implication arises from the following matters:(i) No evidence ground Dr Wenkart contended the primary judge ought to have held, as an additional basis for rejecting the appellant's claim that there was no evidence before the Court which established that the work to which the taxation related had been performed in relation to the administration of the bankrupt estate. The Full Court rejected this ground because it found (at [44]) that the remuneration, costs, charges and expenses incurred after the annulment of the bankruptcy had been incurred in the administration of the estate.(ii) Retention of Sally Nash & Co not in capacity as Trustee As an additional basis for rejecting in its entirety the appellant's claim in relation to costs and disbursements, Dr Wenkart contended the primary judge ought to have held that Sally Nash & Co had never been retained by Mr Pantzer in his capacity as trustee. This ground was also rejected because the Court (at [48]) allowed the appeals, restoring the full force of the certificates of taxation which allowed Mr Pantzer as the former trustee, to claim for bills of costs rendered by Sally Nash & Co for work done on his behalf in relation to court proceedings.(iii) Section 167(1) ground Dr Wenkart contended the primary judge ought to have held that, as an additional basis for rejecting the appellant's claim, in the circumstances of this case, s 167(1) of the Bankruptcy Act 1966 (Cth), confined the bill of costs which a trustee may require to one provided by a person in relation to the administration of the estate. This was not specifically addressed in written or oral submissions by Dr Wenkart in the appeals. Insofar as Dr Wenkart can be taken to contend that Mr Pantzer had been precluded from requiring the taxation because the bill of costs had not been in relation to the administration of the estate, this was inconsistent with the Full Court's finding that the remuneration, costs, charges and expenses incurred after the annulment of the bankruptcy had been incurred in the administration of the estate. Furthermore, the construction for which Dr Wenkart argued would entail that the taxing officer had no authority to tax the bills. That in turn would have required her Honour's order remitting the bill of costs to the taxing officer to be set aside and therefore to that extent, this ground could not be raised by way of contention.

Decision

Reasons for decision

BLACK CJ, RYAN AND MOORE JJ

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: BLACK CJ, RYAN AND MOORE JJ

By the notices of motion, Dr Wenkart sought that the orders be varied in the following terms (text which has been struck through represents proposed deletions and underlined text his proposed additions):(a) Order 2 – the Orders made by the Primary Judge on 6 December 2005 be set aside and in lieu thereof the appeal against the decision of the taxing officer in proceedings NSD181 of 2005 be dismissed and the matter otherwise be remitted to the Trial Judge for further consideration in accordance with these reasons.(b) Order 3 – the First Respondent pay the Appellant's costs of the appeal against the decision of the taxing officer in proceeding number NSD181 of 2005 and of the Appeal to this Full Court, such costs to be taxed in default of agreement.(c) Order 4 – The Appellants costs of the Appeal against the decision of the Taxing Officer in Proceeding number NSD1973 of 2004 be in the discretion of the Trial Judge. The notice of contention in NSD 2459 of 2005 contained the following grounds:1.The trial judge ought to have held that there was no evidence before the Court which established that the work for which the taxation was performed was work performed in relation to the administration of the estate as an additional basis to reject the Appellant's claim.2.The trial judge ought to have held that the legal firm, Sally Nash & Co, was never retained by the Appellant in his capacity as Trustee of the Bankrupt Estate of the First Respondent as an additional basis to reject in its entirely the Appellant's claim in relation to costs and disbursements.3.The trial judge ought to have held that upon the true construction of subsection 167(7) of the Bankruptcy Act, that section operates to preclude any bill of costs submitted after 21 November 2003 as an additional basis to reject the Appellant's claim.4.The trial judge ought to have held that the operation of sub-section 167(1) of the Bankruptcy Act 1966, in the circumstances, limits a bill of costs to a bill of costs which was provided by a person in relation to the administration of the Estate was an additional basis to reject the Appellant's claim.5.The trial judge erred in finding that the bill of costs submitted by the Appellant complied with sub-regulation 8.10(1) of the Bankruptcy Regulations 1996. The grounds in each notice of contention were the same, except that the notice of contention in NSD 2457 of 2005 contained this additional ground:The trial judge erred in finding that the claims made by the Appellant extended to the performance by another person of the ordinary duties required of the Appellant (for example Mr Piscopo) notwithstanding subsection 162(6) of the Bankruptcy Act 1996 precluding such a claim. Dr Wenkart submitted that it is permissible for a party to request the delivery of undelivered reasons from an intermediate appellate court without seeking from the High Court leave to appeal: Yevad Products Pty Ltd v Brookfield (2005) 147 FCR 282 and that this can be done even after the orders of the Court have been entered.