Wenkart v Pantzer

[2003] FCA 432

FEDERAL COURT OF AUSTRALIA

Wenkart v Pantzer [2003] FCA 432

BANKRUPTCY – composition with creditors – duty of trustee to put proposal to meeting of creditors – duty of trustee to report on the benefit to creditors generally – whether trustee can delay meeting if not in a position to report – where proofs of debt not finalised.

Bankruptcy Act 1966 (Cth)

Adsett v Belouis (1992) 37 FCR 201 applied
Macquarie Health Corporation Limited v Commissioner of Taxation (1999) 96 FCR 238 cited
Morlea Professional Services Pty Limited v Richard Walter Pty Limited (In Liquidation) (1999) 96 FCR 21 cited
Re David Bendel (1997) 80 FCR 123 applied

THOMAS RICHARD WENKART V WARREN PANTZER (FORMER TRUSTEE OF THE ESTATE OF THOMAS RICHARD WENKART)

N 7051 OF 2002

BEAUMONT J
1 MAY 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7051 OF 2002

BETWEEN:	THOMAS RICHARD WENKART APPLICANT
AND:	WARREN PANTZER (FORMER TRUSTEE OF THE ESTATE OF THOMAS RICHARD WENKART) RESPONDENT
JUDGE:	BEAUMONT J
DATE OF ORDER:	1 MAY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The separate question ordered today, 1 May 2003, be answered as follows:

Q:Do the facts and matters pleaded in par 28(a) of the applicant’s amended notice of intention to oppose, dated 28 April 2003, constitute an answer in whole or in part to the respondent’s notice of motion, dated 31 October 2002, and if in part, to what extent?

A:No.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 7051 OF 2002

BETWEEN:	THOMAS RICHARD WENKART APPLICANT
AND:	WARREN PANTZER (FORMER TRUSTEE OF THE ESTATE OF THOMAS RICHARD WENKART) RESPONDENT

JUDGE:	BEAUMONT J
DATE:	1 MAY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT (NO. 3)

BEAUMONT J:

1. By his amended notice of intention to oppose the respondent’s notice of motion, the applicant pleads, inter alia, the following in par 28(a):

   “28....  [T]he respondent is not entitled to ...

   (a)remuneration, costs, charges and expenses incurred by the Respondent after the First Proposal on 9 March 2000 which the Respondent neglected and refused thereafter to put to creditors in accordance with section 73(2) of the Act which he was obliged so to do either by operation of the Act and/or because of his duty to act reasonably; ...”

2. For reasons previously given today, I am of the opinion that this plea raises a question of law to be determined in its proper factual context, about which, as will appear, there is no real dispute.  I have therefore ordered that there be determined as a separate question the following question:  Do the facts and matters pleaded in par 28(a) of the applicant’s amended notice of intention to oppose, dated 28 April 2003, constitute an answer in whole or in part to the respondent’s notice of motion, dated 31 October 2002, and if in part, to what extent?

3. The question of…