Wenkart v Pantzer

Case [2008] FCA 1387

FEDERAL COURT OF AUSTRALIA

Wenkart v Pantzer, in the matter of Wenkart [2008] FCA 1387

BANKRUPTCY – applications to re-open case after reasons for decision given and prior to entry of orders – whether re-opening in the interests of justice – importance of finality of litigation – mere discontent with reasons insufficient to justify re-opening – not clear that Court proceeded on a misapprehension as to the facts or law

HELD – applications refused

Bankruptcy Act 1966 (Cth) ss 30, 73
Federal Court of Australia Act 1976 (Cth) s 22

Aristocrat Technologies Australia Pty Ltd v IGT (Australia) Pty Ltd (2007) 73 IPR 545 considered
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 cited
Nutrasweet Australia Pty Ltd v Ajinomoto Co Inc (No 3) (2007) 73 IPR 282 considered
Pantzer v Wenkart (2006) 153 FCR 466 cited
Wenkart v Pantzer [2007] FCA 1589 cited

Wenkart v Pantzer [2008] FCA 478 considered

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)

NSD 7051 OF 2002

BRANSON J
16 SEPTEMBER 2008
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 7051 OF 2002

BETWEEN:

THOMAS RICHARD WENKART
Applicant

AND:

WARREN PANTZER AS FORMER TRUSTEE OF THE ESTATE OF THOMAS RICHARD WENKART
First Respondent

HAPDAY HOLDINGS PTY LTD (ACN 001 185 253), MACQUARIE HEALTH CORPORATION LIMITED (ACN 003 531 860) AND THROVENA PTY LIMITED (ACN 001 738 763)
Second Respondent

BETWEEN:

WARREN PANTZER AS FORMER TRUSTEE OF THE ESTATE OF THOMAS RICHARD WENKART
Cross-Claimant

AND:

THOMAS RICHARD WENKART
First Cross-Respondent

HAPDAY HOLDINGS PTY LTD (ACN 001 185 253)
Second Cross-Respondent

JUDGE:

BRANSON J

DATE OF ORDER:

16 SEPTEMBER 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

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.

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

NSD 7051 OF 2002

BETWEEN:

THOMAS RICHARD WENKART
Applicant

AND:

WARREN PANTZER AS FORMER TRUSTEE OF THE ESTATE OF THOMAS RICHARD WENKART
First Respondent

HAPDAY HOLDINGS PTY LTD (ACN 001 185 253), MACQUARIE HEALTH CORPORATION LIMITED (ACN 003 531 860) AND THROVENA PTY LIMITED (ACN 001 738 763)
Second Respondent

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Details
AGLC
Wenkart v Pantzer [2008] FCA 1387
Case
[2008] FCA 1387
Decision Date

CaseChat Overview and Summary

The case of Wenkart v Pantzer involves a dispute between Dr Wenkart and Mr Pantzer, with the proceedings taking place in the Federal Court of Australia. Dr Wenkart had initiated a motion seeking the withdrawal of certain findings made by the court in a previous judgment dated 11 April 2008. Simultaneously, Mr Pantzer filed a cross-claim seeking orders to enforce a charge over a property in Paddington, which was contingent on the determination of certain remuneration, costs, charges, and expenses owed to him by Dr Wenkart. The court was tasked with deciding whether to withdraw specific findings from the earlier judgment and to determine the appropriate orders in relation to Mr Pantzer's cross-claim.

In addressing the legal issues, the court first examined Dr Wenkart's motion to withdraw certain findings. The court found that despite the evidence presented by Dr Wenkart, there was insufficient basis to conclude that the findings in question were plainly erroneous. Consequently, the court decided against withdrawing the findings. Regarding Mr Pantzer's cross-claim, the court considered the nature of the consent orders from 11 March 2002, which obligated Dr Wenkart to pay Mr Pantzer within 28 days of the quantum of his claims being determined. The court found that as of the date of the cross-claim, Mr Pantzer had already received more than the quantum of the claims he was entitled to, thus he was not entitled to further orders in aid of the consent orders. However, the court ruled against dismissing the cross-claim outright, instead opting for the imposition of appropriate costs orders to prevent unnecessary further litigation.

The court reasoned that the premature filing of Mr Pantzer's cross-claim warranted specific costs orders. To implement this, the court proposed the identification of a specific date when the aggregate of the determined amounts owed by Dr Wenkart to Mr Pantzer exceeded the total amount Mr Pantzer had received. If the parties could not agree on this date, the court would order a Registrar to conduct an inquiry to determine it. This approach was deemed necessary to resolve the matter without prolonging the already complex litigation history between the parties.

ORDERS:
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.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

BRANSON J
I considered the evidence now identified by Dr Wenkart as demonstrating that [32(e)] of my reasons for judgment of 11 April 2008 finds no support in any evidence before the Court before I published those reasons for judgment. I have considered it again in the context of Dr Wenkart’s motion. I accept that an appeal court may find that my conclusion is erroneous. However, I am not persuaded that it would be appropriate for me to withdraw [32(e)] of my reasons for judgment. The subparagraph reflects my considered view as at 11 April 2008 as to the effect of the evidence before me. I am not persuaded that I proceeded under a clear misapprehension as to the facts. Indeed Dr Wenkart has not persuaded me that the conclusion reflected in [32(e)] of my reasons for judgment of 11 April 2008 is plainly erroneous.Paragraph [92] of the reasons for judgment of 11 April 2008 I considered the order or orders appropriate to be made on Mr Pantzer’s cross-claim at [90]-[92] of the reasons for judgment of 11 April 2008. I there said:As already mentioned, order 1 of the consent orders of 11 March 2002 recorded that Dr Wenkart relevantly agreed to pay the remuneration, costs, charges and expenses to which Mr Pantzer was lawfully entitled or may become lawfully entitled “within 28 days of determination of the quantum of the same”. Having regard to the approach of the Full Court in Pantzer v Wenkart (2006) 153 FCR 466, it seems that order 1 must be understood distributively; that is, as recording an agreement that upon the quantum of any claim by Mr Pantzer for remuneration, costs, charges and expenses being determined, Dr Wenkart agreed to pay the same within 28 days. 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. 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).

Ratio Decidendi

Legal Principle Established

Established by: BRANSON J

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