Wenkart v Pantzer - [2009] FCA 1086

FEDERAL COURT OF AUSTRALIA
Wenkart v Pantzer [2009] FCA 1086
PRACTICE AND PROCEDURE — order that an inquiry be conducted — objection to Certificate — nature of the hearing to be undertaken by the Court
Constitution Ch III
Acts Interpretation Act1901 (Cth) s 25D
Federal Court of Australia Act 1976 (Cth) Part IIA, Div 1, 2
Federal Court Rules O 1 r 4, O 39 r 10
D’Antuono v Minister of Health (1997) 80 FCR 226, cited
Harrington v Lowe (1996) 190 CLR 311, cited
Harris v Caladine (1991) 172 CLR 84, cited
Gibson v Bosmac Pty Ltd (1995) 130 ALR 245, cited
Jageev Pty Limited v Deane (1997) 72 FCR 398, cited
Pantzer v Wenkart [2006] FCAFC 140, 153 FCR 466, cited
Re Peruvian Railway Construction Company Ltd [1915] 2 Ch 144, cited
Rapid Metal Developments (Australia) Pty Ltd v Rosato [1971] Qd R 82, cited
Sharpe v Goodhew (unreported, FCA, Drummond J, Q I6 of 1989, 11 December 1992), cited
Wenkart v Pantzer [2008] FCA 478, cited
Wenkart v Pantzer [2008] FCA 1387, cited
Wenkart v Pantzer (No 10) [2007] FCA 1589, cited
Murphy MD, “Judicial Registrars of Federal Courts: Widening the Supervised Exercise of Delegated Judicial Power” (1996) 6 JJA 226
THOMAS RICHARD WENKART v WARREN PANTZER (THE FORMER TRUSTEE OF THE ESTATE OF THOMAS RICHARD WENKART)
NSD 7051 of 2002
FLICK J
25 SEPTEMBER 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 7051 of 2002

BETWEEN:
THOMAS RICHARD WENKART
Applicant

AND:
WARREN PANTZER (THE FORMER TRUSTEE OF THE ESTATE OF THOMAS RICHARD WENKART)
Respondent

JUDGE:

FLICK J

DATE OF ORDER:

25 SEPTEMBER 2009

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The hearing of the present proceeding be stood over to 12 October 2009 at 9:30 am for further Directions with a view to then either making orders disposing of the proceeding or fixing a further date for the hearing of submissions should that be necessary.
2.Liberty to apply on three days’ notice in writing.
3.Costs reserved.

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

The text of orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 7051 of 2002

BETWEEN:
THOMAS RICHARD WENKART
Applicant

AND:
WARREN PANTZER (THE FORMER TRUSTEE OF THE ESTATE OF THOMAS RICHARD WENKART)
Respondent

JUDGE:

FLICK J

DATE:

25 SEPTEMBER 2009

PLACE:

SYDNEY

REASONS FOR JUDGMENT

The present proceeding before the Court is hopefully one of the last to be resolved as between the parties.
It has its origins in October 1999 when an order was made sequestrating the estate of Dr Wenkart. Mr Pantzer was appointed as the trustee of the estate. Since that time there have been a number of decisions of various judges of this Court, both at first instance and on appeal. The dispute has also…

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.

Continue reading Wenkart v Pantzer

Details

AGLC: Wenkart v Pantzer [2009] FCA 1086
Case: [2009] FCA 1086
Decision Date: 25 SEPTEMBER 2009

CaseChat Overview and Summary

The case of Wenkart v Pantzer involves an objection to a certificate issued by Deputy District Registrar Hannigan, which was itself the result of an inquiry ordered by Branson J. The dispute centres on the interpretation and enforcement of consent orders made by Beaumont J on 11 March 2002, which included provisions for remuneration, costs, and a charge over property in Paddington. The central legal issue before the court was the identification of the date, if any, on which Warren Pantzer, as trustee, became entitled to enforce a charge over the Paddington property after 28 days had elapsed from the determination of the quantum of remuneration, costs, and expenses owed to him by Thomas Richard Wenkart. This date was crucial to determine the validity and timing of Pantzer's cross-claim filed on 31 October 2002.

The court considered the background of the case, including previous decisions and disputes that had been resolved. Notably, it was established that Pantzer had received more in payments than he was entitled to as trustee. Branson J had ordered an inquiry to ascertain the specific date on which Pantzer's entitlements exceeded his receipts, which Deputy District Registrar Hannigan subsequently determined to be 10 January 2005. This determination was now being objected to, leading to the current proceeding. The court's reasoning focused on the necessity of establishing this date to appropriately address Pantzer's cross-claim and to prevent further unnecessary litigation.

The court, after reviewing the objection and the certificate, decided to stand over the hearing to allow for further directions. This decision aimed to either resolve the proceeding or set a future date for further submissions, should that be necessary. The court reserved costs and granted liberty to apply on three days' written notice. This approach ensures that the matter is thoroughly examined, and appropriate orders are made to address the parties' entitlements and obligations.

Orders

Orders of the court

1. The hearing of the present proceeding be stood over to 12 October 2009 at 9:30 am for further Directions with a view to then either making orders disposing of the proceeding or fixing a further date for the hearing of submissions should that be necessary.

2. Liberty to apply on three days’ notice in writing.

3. Costs reserved.

Note:

Background

Background to the litigation

The present proceeding arises out of an order made by Branson J in September 2008 that an inquiry be held pursuant to O 39 r 2 of the Federal Court Rules: Wenkart v Pantzer [2008] FCA 1387. An inquiry was held and a Certificate subsequently issued by a Deputy District Registrar on 28 May 2009. An “objection” has been taken to this Certificate and the present proceeding before the Court is a “hearing” pursuant to O 39 r 10(3) of the Federal Court Rules. THE BACKGROUND For the purposes of undertaking that “hearing” it is fortunately unnecessary to re-state each of the previous decisions and the disputes thereby resolved. For present purposes it is sufficient to note that on 11 March 2002 Beaumont J made orders by consent, including the following two orders: 1. Warren Pantzer as Trustee of the estate of Thomas Richard Wenkart may recover his remuneration, costs, charges and expenses to which he is lawfully entitled or may become lawfully entitled from Thomas Richard Wenkart and Thomas Richard Wenkart agrees to pay the same within 28 days of determination of the quantum of the same or at such other time as the parties may agree.…5. Thomas Richard Wenkart consents to Warren Pantzer lodging a Caveat over the property in paragraph 2 for the purpose of securing the charge in paragraph 2 and Warren Pantzer will upon payment of the remuneration, costs, charges and expenses in paragraph 1 provide a Withdrawal of Caveat forthwith.The property identified in order 5 above is located in Union St, Paddington (“the Paddington property”). The correct construction of these orders has been considered by the Full Court: Pantzer v Wenkart [2006] FCAFC 140, 153 FCR 466. It is also sufficient for present purposes to further note that on 31 October 2002, Mr Pantzer filed in this Court what was later deemed to be a cross-claim whereby he sought “an order in aid of [the Court’s] order made 11 March 2002 by appointing Warren Pantzer as Trustee for Sale of [the Paddington property]”. The difficulty confronting Mr Pantzer, however, was that:· the total amount he had received as trustee of Dr Wenkart’s estate was $769,191.66but that:· the total amount of authorised payments made by Mr Pantzer to himself by way of remuneration prior to 31 October 2002 was $325,744.60.There had been no agreement as to the “remuneration, costs, charges and expenses to which” Mr Pantzer was entitled in excess of that which had been then authorised. No occasion had thus arisen as at 31 October 2002, the date the deemed cross-claim was filed, for him to seek to exercise his rights as against the Paddington property. As concluded by Branson J in her reasons for decision in April 2008 (Wenkart v Pantzer [2008] FCA 478):[91] I conclude that as at the date that the cross-claim was filed, Mr Pantzer, in his capacity as trustee of Dr Wenkart’s bankrupt estate, had received a larger amount by way of receipts than the determined quantum of the remuneration, costs, charges and expenses to which he was lawfully entitled. Mr Pantzer has therefore failed to demonstrate that, as at the date of the filing of his cross-claim, he was entitled to “orders in aid” of the consent orders made on 11 March 2002.[92] Nonetheless, I do not accept the submission of Dr Wenkart that it would be appropriate simply to dismiss the cross-claim with costs. Were this course adopted Mr Pantzer could simply institute a fresh application seeking to enforce the charge over the Paddington property. The regrettably long and complex history of this matter renders such an outcome even more undesirable than might ordinarily be the case. The appropriate way to deal with the premature filing of Mr Pantzer’s cross-claim is, in my view, by the making of appropriate costs orders. This will require, as a first step, the identification of the date, if any, on which 28 days had passed from the determination of the quantum of an amount by way of remuneration, costs, charges and expenses to which Mr Pantzer is lawfully entitled that resulted in the aggregate of such determinations exceeding $769,191.66 (ie the total amount received by Mr Pantzer as trustee of Dr Wenkart’s estate). If the parties are unable to reach agreement on this question, I propose to make an order for the making of an inquiry by a Registrar (O 39 r 2 and r 9 of the Federal Court Rules).Her Honour had also earlier published in October 2007 reasons for decision relevant to the remuneration and costs of the trustee: Wenkart v Pantzer (No 10) [2007] FCA 1589.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

FLICK J

Subsequent to the publication of those reasons for decision, two Notices of Motion were filed on behalf of Dr Wenkart seeking that further consideration be given by the Court to some of the conclusions then reached. One Notice of Motion was filed on 2 June and another on 5 June 2008. Her Honour dismissed both Motions in September 2008: [2008] FCA 1387. In doing so, Her Honour expressed her conclusions and made orders as follows:CONCLUSION[30] The parties have not reached an agreement as to the date, if any, on which 28 days had passed from the determination of the quantum of an amount by way of remuneration, costs, charges and expenses to which Mr Pantzer is lawfully entitled from Dr Wenkart that resulted in the aggregate of such determinations exceeding the total amount received by Mr Pantzer as trustee of Dr Wenkart’s estate. On the approach that I have considered, and continue to consider, it appropriate to adopt, before final orders can be made on Mr Pantzer’s cross-claim it is necessary to know when, if at all, Mr Pantzer became entitled to enforce the charge over Dr Wenkart’s Paddington property reflected in order 2 of the consent orders made by Beaumont J on 11 March 2002. It will therefore be ordered that a Registrar conduct an inquiry to determine that date. When that date has been identified it will be necessary for the parties to have the opportunity of making further submissions as to orders, including orders for costs, appropriate to be made on Mr Pantzer’s cross-claim.Her Honour’s orders were as follows:1. The applications made pursuant to the notices of motion filed on 2 June 2008 and 5 June 2008 respectively be dismissed.2. A Registrar conduct an inquiry to determine the date, if any, on which 28 days had passed from the determination of the quantum of an amount by way of remuneration, costs, charges and expenses to which Mr Pantzer is lawfully entitled from Dr Wenkart that resulted in the aggregate of such determinations exceeding $769,191.66.3. The proceeding be otherwise stood over to a date to be fixed. Consequent upon this decision of Branson J, Deputy District Registrar Hannigan conducted the inquiry which had been ordered and issued her Certificate in May 2009. That Certificate stated as follows:Certificate pursuant to Order 39 Rule 10 of the Federal Court Rules.I, Paddy Hannigan, a Deputy District Registrar of the Federal Court of Australia certify that the date, if any, on which 28 days had passed from the determination of the quantum of an amount by way of remuneration, costs, charges and expenses to which Mr. Pantzer is lawfully entitled from Dr. Wenkart that resulted in the aggregate of such determinations exceeding $769,191.66 is 10 January 2005. Order 1 r 4 of the Federal Court Rules, it should perhaps be noted, defines “Registrar” as including “a Deputy District Registrar”. The functions and manner of appointment of Registrars are addressed in Part IIA, Div 1 and 2 of the Federal Court of Australia Act 1976 (Cth). ORDER 39 RULE 10

Ratio Decidendi

Legal Principle Established

Established by: FLICK J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 7051 of 2002

BETWEEN:	THOMAS RICHARD WENKART Applicant
AND:	WARREN PANTZER (THE FORMER TRUSTEE OF THE ESTATE OF THOMAS RICHARD WENKART) Respondent

JUDGE:	FLICK J
DATE OF ORDER:	25 SEPTEMBER 2009
WHERE MADE:	SYDNEY

JUDGE:	FLICK J
DATE:	25 SEPTEMBER 2009
PLACE:	SYDNEY