FEDERAL COURT OF AUSTRALIA
Wenkart v Pantzer [2003] FCAFC 210
BANKRUPTCY – annulment – entitlement of trustee to remuneration, costs and expenses – whether trustee can require taxation of third party’s costs after annulment – whether judge erred in proceeding on basis that certain facts not in dispute – whether bankrupt was notified or became aware of trustee’s claim for remuneration
Bankruptcy Act 1966 (Cth) ss 73, 161B, 162, 163, 163A, 164, 165, 167
Bankruptcy Regulations 1996 regs 8.08, 8.09Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 distinguished
Becton Construction and Engineering (Int) Pty Ltd v State Government Insurance Commission of South Australia (unreported, Supreme Court of Victoria, Hedigan J, 8 July 1993) referred to
CBS Productions Pty Ltd v O’Neill (1985) 1 NSWLR 601 referred to
Dunstan v Simmie & Co Pty Ltd [1978] VR 669 referred to
George Wimpey & Co Ltd v Territory Enterprises [1966] VR 312 referred to
Pasen v Buy-Rite Discounts Pty Ltd (1992) V ConvR 65,087 referred to
Verwayen v Commonwealth of Australia [1988] VR 203 referred toTHOMAS WENKART v WARREN PANTZER
N 633 of 2003
HEEREY, FINN & FINKELSTEIN JJ
29 AUGUST 2003MELBOURNE (HEARD IN SYDNEY)
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 633 of 2003
On appeal from a Single Judge of the Federal Court of Australia
BETWEEN:
THOMAS WENKART
AppellantAND:
WARREN PANTZER
RespondentJUDGES:
HEEREY, FINN & FINKELSTEIN JJ
DATE OF ORDER:
29 AUGUST 2003
WHERE MADE:
MELBOURNE (HEARD IN SYDNEY)
THE COURT ORDERS THAT:
- The appeals be dismissed with costs.
- The cross appeal be allowed with costs.
- The ruling of the trial judge made on 5 May 2003 be set aside and in place thereof the following ruling be substituted:
On 15 March 2002, the applicant was, within the meaning of regulation 8.09(1) of the Bankruptcy Regulations 1996, made aware of the amount of the trustee’s claim for remuneration.
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 633 of 2003
On appeal from a single judge of the Federal Court of Australia
BETWEEN:
THOMAS WENKART
AppellantAND:
WARREN PANTZER
Respondent
JUDGES:
HEEREY, FINN & FINKELSTEIN JJ
DATE:
29 AUGUST 2003
PLACE:
MELBOURNE (HEARD IN SYDNEY)
REASONS FOR JUDGMENT
THE COURT:
The bankruptcy of Dr Wenkart, the appellant, has resulted in a good deal of litigation, including appeals, both in the Federal Court and in the Supreme Court of New South Wales. Following the annulment of his bankruptcy, things have not improved. Further disputes have been litigated, this time between Dr Wenkart and Mr Pantzer, his former trustee. The disposition of the current appeals (initially there were five, but two have been dropped) are unlikely to bring an end to their appearances in court. The present appeals relate to the trustee’s entitlement to remuneration, costs and expenses. The amount in dispute will probably pale into insignificance when…
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- Wenkart v Pantzer [2003] FCAFC 210
- Case
- [2003] FCAFC 210
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CaseChat Overview and Summary
The central legal issue in the case was whether the applicant had been made aware of the claim for remuneration on 15 March 2002, as required by regulation 8.09(1) of the Bankruptcy Regulations 1996. The court had to determine the precise date on which the applicant was made aware of the claim and whether this date was within the meaning of the regulation. The court also had to consider the implications of this determination for the calculation of interest on the claim. The legal issue was significant because it affected the amount of interest that the trustee was entitled to claim and therefore had financial implications for both parties.
The court found that the applicant had indeed been made aware of the claim for remuneration on 15 March 2002, as required by the regulation. The court based its decision on the evidence presented by both parties and found that the trial judge had erred in his assessment of the date on which the applicant was made aware of the claim. The court held that the ruling of the trial judge made on 5 May 2003 should be set aside and replaced with a new ruling that specified the correct date. The court also found that the cross appeal should be allowed and that the costs of the appeal and cross appeal should be awarded to the respective parties. The court's decision had significant implications for the calculation of interest on the trustee's claim for remuneration and therefore had financial implications for both parties.
Orders
Orders of the court
1. The appeals be dismissed with costs.
2. The cross appeal be allowed with costs.
3. The ruling of the trial judge made on 5 May 2003 be set aside and in place thereof the following ruling be substituted:
On 15 March 2002, the applicant was, within the meaning of regulation 8.09(1) of the Bankruptcy Regulations 1996, made aware of the amount of the trustee’s claim for remuneration.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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