THOMAS RICHARD WENKART v WARREN PANTZER AS FORMER TRUSTEE OF THE ESTATE OF THOMAS RICHARD WENKART, HAPDAY HOLDINGS PTY LTD (ACN 001 185 253), MACQUARIE HEALTH CORPORATION LIMITED (ACN 003 531 860) AND THROVENA PTY LIMITED (ACN 001 738 763); WARREN PANTZER AS FORMER TRUSTEE OF THE ESTATE OF THOMAS RICHARD WENKART v THOMAS RICHARD WENKART AND HAPDAY HOLDINGS PTY LTD (ACN 001 185 253)
File number:
NSD 7051 of 2002
Judge:
FLICK J
Date of judgment:
13 August 2010
Catchwords:
PRACTICE AND PROCEDURE – costs – indemnity costs – interest up to judgment – inchoate cause of action
BANKRUPTCY – trustee’s right to remuneration – work reasonably undertaken – rule in Cherry v Boultbee – the decision in Baldry v Jackson
[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.
Continue reading Wenkart v Pantzer
Sign in free to access the full text
Details
AGLC
Wenkart v Pantzer [2010] FCA 866
Case
[2010] FCA 866
Decision Date
CaseChat Overview and Summary
The case of Wenkart v Pantzer involved the parties, Dr Wenkart and Mr Pantzer, engaged in a legal dispute concerning costs, indemnity costs, and interest up to judgment, as well as issues surrounding a trustee’s right to remuneration and the rule in Cherry v Boultbee. The matter was heard before a court which needed to decide several key legal issues. These included whether there was a need for a separate order for indemnity costs, the percentage of costs that should be awarded to the prevailing party, and the trustee's entitlement to remuneration for work reasonably undertaken.
The court examined the need for finality in litigation and the requirement for a single judge to respect previous decisions made by other judges. It also considered the necessity of resolving all issues expeditiously without causing prejudice or unfairness to any party. The court found that the proceeding by Mr Pantzer was reasonable in all circumstances, and that Dr Wenkart should pay 90% of Mr Pantzer’s costs. Additionally, the court ruled that Mr Pantzer was entitled to an order for interest pursuant to section 51A of the Federal Court of Australia Act 1976 (Cth). The decision also clarified the interpretation of consent orders made previously and affirmed Mr Pantzer's entitlement to remuneration.
In conclusion, the court issued orders that the proceeding be stood over to allow for the preparation of Short Minutes of Orders that reflect the decisions made. The parties were directed to exchange any further notes identifying any outstanding issues that needed to be resolved. This decision aimed to balance the various competing considerations and ensure a fair outcome for both parties involved in the litigation.
Orders
Orders of the court
1. The proceeding is stood over to 9:30 am on 20 August 2010 for the purpose of making orders to give effect to these reasons.
Note:
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
In assessing that percentage, consideration has been given to whether any separate order should be made for costs on an indemnity basis for any part or parts of the proceeding. Ultimately it is not considered that any such order should be made. The 90% assessment is a fair and proper accommodation of all of the competing considerations relevant to the exercise of the discretion.CONCLUSIONS The present proceeding, it is recognised, exposes a potential tension that may emerge in litigation that proceeds before a number of different Judges and over the space of nearly a decade between:·the need for finality in litigation, such that litigants are not afforded an endless opportunity to re-canvass arguments that should have been advanced on the one occasion rather than sequentially; ·the need for a single Judge to accept the conclusiveness of a decision that has previously been made by another Judge of the Court and to leave it for a dissatisfied litigant to seek redress on appeal before a Full Court; and·the need to resolve in as expeditious a manner as possible, and in a manner which exposes no litigant to prejudice or unfairness, all issues that divide the litigants.Indeed, some may say that each of these matters is separate and discrete from the others and that there is in practice no tension at all. Whatever may be the reach or impact of s 37M of the Federal Court of Australia Act1976 (Cth), neither that provision nor s 22 can be construed as simply a licence to resolve all issues free of long-established constraints upon the powers and discretions of a Judge at first instance. However the dividing line may be drawn between these issues, it is hoped that there has been no impermissible transgression. It is no answer to such tension as may exist to recognise the possibility – if not the certainty – that the present decision will be appealed to a Full Court. For the reasons expressed, it is thus considered that the issues as formulated by Dr Wenkart may in summary form be answered as follows:1.Yes;2.The commencement and conduct of the proceeding by Mr Pantzer has been reasonable in all the circumstances;3.Yes;4.The question does not arise; and5.Dr Wenkart should pay 90% of the costs of Mr Pantzer. The issues as formulated on behalf of Mr Pantzer are not as readily susceptible of answers being provided in the same format, but for the reasons expressed above, it is considered that:(a)The consent orders as made by Beaumont J on 11 March 2002 are to be construed in the manner indicated by the Full Court in Pantzer v Wenkart [2006] FCAFC 140 at [40], 153 FCR 466 at 476;(b)No;(c)Yes;(d)Yes;(e)Yes;(f)Mr Pantzer is entitled to an order that Dr Wenkart pay 90% of his costs;(g)Mr Pantzer is entitled to an order for interest pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth). The parties are to prepare Short Minutes of Orders which give effect to these reasons and conclusions. Should it be necessary to address any further outstanding issue still dividing the parties, a short note identifying any such issue should be exchanged between the parties and forwarded to Chambers.