FEDERAL COURT OF AUSTRALIA
Pantzer v Wenkart [2006] FCAFC 140
BANKRUPTCY – entitlements of trustee – certificates of taxation relating to remuneration, costs, charges and expenses claimed by former trustee set aside – where work undertaken after bankruptcy annulled – where remuneration and costs claimed in relation to litigation – where primary judge found litigation undertaken for the former trustee’s own benefit – whether litigation undertaken for former trustee’s own benefit was not for the purpose of the administration of the estate
Adsett v Berlouis (1992) 37 FCR 201 considered
Wenkart v Pantzer [2003] FCA 315 referred to
Wenkart v Pantzer [2003] FCA 364 referred to
Wenkart v Pantzer [2003] FCA 432 referred to
Wenkart v Pantzer [2003] FCA 456 referred to
Wenkart v Pantzer [2003] FCA 471 referred to
Wenkart v Pantzer [2003] FCAFC 210; (2003) 132 FCR 204 referred to
Wenkart v Pantzer (No 6) [2003] FCA 1210 referred to
Wenkart v Pantzer [2003] FCA 1211; (2003) 132 FCR 273 referred to
Wenkart v Pantzer (No 8) [2004] FCA 280; Wenkart v Pantzer (No 3) (2004) 135 FCR 422 referred to
Wenkart v Pantzer [2005] FCA 1572 reversedWARREN PANTZER v THOMAS RICHARD WENKART, ANN SEXTON AND INSPECTOR GENERAL IN BANKRUPTCY
NSD 2457 OF 2005WARREN PANTZER v THOMAS RICHARD WENKART, ANN SEXTON AND INSPECTOR GENERAL IN BANKRUPTCY
NSD 2459 OF 2005BLACK CJ, RYAN AND MOORE JJ
28 SEPTEMBER 2006
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NSD 2457 OF 2005
NEW SOUTH WALES DISTRICT REGISTRY
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
WARREN PANTZER
AppellantAND:
THOMAS RICHARD WENKART
First RespondentANN SEXTON
Second RespondentINSPECTOR GENERAL IN BANKRUPTCY
Third Respondent
JUDGES:
BLACK CJ, RYAN AND MOORE JJ
DATE OF ORDER:
28 SEPTEMBER 2006
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The appeal be allowed.
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 proceeding No NSD 1973 of 2004 be dismissed.
3.The first respondent pay the appellant’s costs of the appeal against the decision of the taxing officer in proceeding No NSD 1973 of 2004 and of the appeal to this Full Court, such costs to be taxed in default of agreement.
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 SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
BETWEEN:
WARREN PANTZER
AppellantAND:
THOMAS RICHARD WENKART
First RespondentANN SEXTON
Second RespondentINSPECTOR GENERAL IN BANKRUPTCY
Third Respondent
JUDGES:
BLACK CJ, RYAN AND MOORE JJ
DATE OF ORDER:
28 SEPTEMBER 2006
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The appeal be allowed.
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…
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- Pantzer v Wenkart [2006] FCAFC 140
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- [2006] FCAFC 140
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CaseChat Overview and Summary
The legal issues raised in the appeal included the interpretation of the expression "remuneration, costs, charges and expenses to which [Mr Pantzer] is lawfully entitled or may become lawfully entitled from Thomas Richard Wenkart" in order 1 of the consent orders and Mr Pantzer’s entitlements under the Act and the costs, charges and expenses in respect of which he is entitled to be indemnified. The appeal also considered whether the effect of the orders made by Lindgren J on 21 October 2003 limited the amount that Mr Pantzer may claim in reliance on order 1 of the consent orders. Finally, the appeal considered whether, by reason of matters pleaded in matter NSD 7051 of 2002, upon a true and proper accounting neither Mr Pantzer, nor any person who provided services to him in relation to the bankrupt estate of Dr Wenkart, had any present legal entitlement to payment or reimbursement, as the case may be, in respect of the administration of the bankrupt estate.
The Full Court of the Federal Court of Australia found that the primary judge had erred in setting aside the certificates of taxation. The Full Court held that the primary judge had misinterpreted the expression "remuneration, costs, charges and expenses to which [Mr Pantzer] is lawfully entitled or may become lawfully entitled from Thomas Richard Wenkart" in order 1 of the consent orders. The Full Court found that the expression referred to remuneration and expenses incurred in the administration of the estate, and that Mr Pantzer was entitled to claim such remuneration and expenses under the Act. The Full Court also found that the orders made by Lindgren J on 21 October 2003 did not limit the amount that Mr Pantzer could claim in reliance on order 1 of the consent orders. Finally, the Full Court found that, upon a true and proper accounting, Mr Pantzer and any person who provided services to him in relation to the bankrupt estate of Dr Wenkart had a present legal entitlement to payment or reimbursement, as the case may be, in respect of the administration of the bankrupt estate.
The appeal was allowed, and the orders made by the primary judge on 6 December 2005 were set aside. The appeal against the decision of the taxing officer in proceeding No NSD 1973 of 2004 was dismissed, and the appeal against the decision of the taxing officer in proceeding No NSD 181 of 2005 was also dismissed. The first respondent was ordered to pay the appellant's costs of the appeal against the decision of the taxing officer in proceeding No NSD 1973 of 2004 and of the appeal to this Full Court, such costs to be taxed in default of agreement. The first respondent was also ordered to pay the appellant's costs of the appeal against the decision of the taxing officer in proceeding No NSD 181 of 2005 and of the appeal to this Full Court, such costs to be taxed in default of agreement.
Orders
Orders of the court
1. The appeal be allowed.
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 proceeding No NSD 1973 of 2004 be dismissed.
3. The first respondent pay the appellant’s costs of the appeal against the decision of the taxing officer in proceeding No NSD 1973 of 2004 and of the appeal to this Full Court, such costs to be taxed in default of agreement.
1. The appeal be allowed.
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 proceeding No NSD 181 of 2005 be dismissed.
3. The first respondent pay the appellant’s costs of the appeal against the decision of the taxing officer in proceeding No NSD 181 of 2005 and of the appeal to this Full Court, such costs to be taxed in default of agreement.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: BLACK CJ, RYAN AND MOORE JJ
On 13 December 2004, Ms Sexton issued a certificate in the following form:“Certificate of TaxationI do hereby certify that I have taxed and allowed the remuneration, disbursements and expenses claimed by Warren Pantzer, the former trustee of the estate of Thomas Richard Wenkart (NSW5988/99/0) in the amount of $169,955.94 for the period 15 March 2002 to 21 October 2003, comprised of the following amounts:-1. Claim for remuneration of Warren Pantzer(Items 1-822 inclusive in the claim) ‑ $83,219.822. Claim for disbursements and expenses (items 823‑907 inclusive) ‑ $2,562.023. Solicitor/client bill of costs of Sally Nash & Co for work undertaken on behalf of Warren Pantzer in Federal Court proceeding N7501 of 2002 ‑ $57,613.094 .Solicitor/client bill of costs of Sally Nash & Co for work undertaken on behalf of Warren Pantzer in Federal Court proceedings (appeal) N633 of 2003 ‑ $26,561.01Date: 13‑12‑04 [signed] ANN SEXTON TAXING OFFICER” On 12 January 2005, Ms Sexton issued another certificate, this one allowing a total of $33,295.95. The amount of $2,289.70 was allowed for the solicitor/client costs of Sally Nash & Co for work in relation to an application for special leave to appeal from the judgment of the Full Court of this Court Wenkart v Pantzer reported at (2003) 132 FCR 204, to the High Court (S517 of 2003). The certificate also allowed eleven memoranda of fees from barristers retained at various times to represent Mr Pantzer.THE JUDGMENT APPEALED FROM The primary judge treated the appeals from the decisions of the taxing officer as raising five issues. These were as follows (at [23]-[27]):1.The meaning of the expression “remuneration, costs, charges and expenses to which [Mr Pantzer] is lawfully entitled or may become lawfully entitled from Thomas Richard Wenkart” in order 1 of the consent orders and Mr Pantzer’s entitlements under the Act and the costs, charges and expenses in respect of which he is entitled to be indemnified.2.Whether the effect of the orders made by Lindgren J on 21 October 2003 was to limit the amount that Mr Pantzer may claim in reliance on order 1 of the consent orders.3.The validity of the appointments of Ms Sexton.4.Whether the form of the bill of costs submitted by Mr Pantzer to Ms Sexton satisfied the requirements of the Regulations.5.Whether, “by reason of matters pleaded in matter NSD 7051 of 2002, upon a true and proper accounting neither Mr Pantzer, nor any person who provided services to him in relation to the bankrupt estate of Dr Wenkart, has any present legal entitlement to payment or reimbursement, as the case may be, in respect of the administration of the bankrupt estate” (at [27]). In this appeal, the contentious parts of the primary judge’s judgment were identified as largely confined to issues 1, 2 and 5. As to the first issue, the primary judge concluded that order 1, properly construed, had two elements. The first was the remuneration to which Mr Pantzer was then entitled, or would thereafter become entitled, in respect of work properly undertaken in carrying out his duties under the Act. The second was the costs, charges and expenses in respect of which Mr Pantzer, in his capacity as trustee or former trustee of Dr Wenkart’s estate, was then entitled to be indemnified, or would thereafter become entitled to be indemnified.