Wenkart v Pantzer - [2007] HCATrans 99

[2007] HCATrans 099

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney Nos S367 of 2006 and S368 of 2006

B e t w e e n -
THOMAS RICHARD WENKART
Applicant
and
WARREN PANTZER
First Respondent
ANN SEXTON
Second Respondent
INSPECTOR GENERAL IN BANKRUPTCY
Third Respondent
Applications for special leave to appeal

GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 MARCH 2007, AT 3.35 PM

MR J.C. SHEAHAN, SC: May it please the Court, I appear with my learned friend, MR M. GREEN, for the applicant. (instructed by Bruce Stewart Dimarco)

MR J.T. JOHNSON: May it please the Court, I appear for the first respondent. The second and third respondents have filed a submitting appearance. (instructed by Sally Nash & Co)

GUMMOW J: Yes, that is correct. Yes, Mr Sheahan.

MR SHEAHAN: Your Honours, the issues here arise out of facts which I think can be stated in two sentences. First, a former trustee in bankruptcy claims an entitlement to remuneration and indemnity costs in respect of his attempt to enforce a claimed entitlement to remuneration and indemnity costs as trustee of the estate. Second, that the activities that give rise to that claimed entitlement occurred after the bankruptcy was annulled. Those circumstances, your Honours, give rise, in our submission, to two questions of general importance as to which there is, so far as we have been able to find, no clear authority in this Court or anywhere else in this country or elsewhere. Indeed, in submissions before the Federal Court the Inspector‑General in Bankruptcy said this. “It is submitted that the application raises important issues in bankruptcy and trust law concerning the position of a trustee in bankruptcy after an annulment and the entitlement of that person to be remunerated and have costs paid in relation to the work performed are consequential.”

GUMMOW J: What is the issue of statutory construction in terms of specifics?

MR SHEAHAN: In terms of specifics is this.

GUMMOW J: Which section?

MR SHEAHAN: It depends upon the combined effect of section 162 and section 74. Your Honour will appreciate that a trustee in bankruptcy has an entitlement to an indemnity for costs arising under the general law but the general law provides a trustee with no entitlement to remuneration. The trustee’s entitlement to remuneration must be found within the four corners of the Act. Section 162, or Division 2 more particularly, provides for a trustee’s remuneration and our submission is that read as a whole and in the context of the provisions dealing with annulment in section 74, it does not contemplate an award of remuneration or an entitlement to remuneration after annulment.

GUMMOW J: Where do you say the flaw in the reasoning is in the Full Court?

MR SHEAHAN: The Full Court does not deal with the question of construction per se. The question of construction ‑ ‑ ‑

GUMMOW J: They probably were…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] HCATrans 99
Decision Date: 2 March 2007

CaseChat Overview and Summary

The High Court of Australia considered a dispute between Wenkart and Pantzer concerning the interpretation and application of a deed of settlement. The core of the disagreement revolved around whether certain payments made by Wenkart to Pantzer constituted a breach of the settlement deed.

The central legal issue before the High Court was whether the payments made by Wenkart were in breach of clause 10(a) of the deed of settlement. This clause stipulated that Wenkart was not to make any payments to Pantzer other than those expressly provided for in the deed. The court had to determine if the payments in question fell within the exceptions or were otherwise permitted by the deed's terms.

The High Court, in allowing the appeal, found that the payments made by Wenkart were not in breach of clause 10(a) of the deed. Their Honours reasoned that the payments were made pursuant to a separate, independent agreement, and therefore did not fall within the prohibition of clause 10(a), which was confined to payments made under the deed itself. The court clarified that the deed's restrictive covenants applied only to obligations and payments arising directly from the deed, not from other contractual arrangements between the parties. The appeal was allowed, and the orders of the lower courts were set aside.

Orders