Wenkart v Pantzer

[2003] FCAFC 210

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, 8.09

Bass 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 to

THOMAS WENKART v WARREN PANTZER

N 633 of 2003

HEEREY, FINN & FINKELSTEIN JJ
29 AUGUST 2003

MELBOURNE (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 Appellant
AND:	WARREN PANTZER Respondent
JUDGES:	HEEREY, FINN & FINKELSTEIN JJ
DATE OF ORDER:	29 AUGUST 2003
WHERE MADE:	MELBOURNE (HEARD IN SYDNEY)

THE COURT ORDERS THAT:

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.

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 Appellant
AND:	WARREN PANTZER Respondent

JUDGES:	HEEREY, FINN & FINKELSTEIN JJ
DATE:	29 AUGUST 2003
PLACE:	MELBOURNE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

THE COURT:

1. 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…