Wenkart v Pantzer (No 2) - [2010] FCA 1408

FEDERAL COURT OF AUSTRALIA
Wenkart v Pantzer (No 2) [2010] FCA 1408

Citation: Wenkart v Pantzer (No 2) [2010] FCA 1408

Parties: THOMAS RICHARD WENKART v WARREN PANTZER AS FORMER TRUSTEE OF THE ESTATE OF THOMAS RICHARD WENKART AND 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: 16 December 2010

Catchwords: PRACTICE AND PROCEDURE – residual issues left unresolved – relief not to confer a windfall – calculation of interest for a part of a period – fixed costs order – declaratory relief

Legislation: Access to Justice (Civil Litigation Reforms) Amendment Act2009 (Cth)
Federal Court of Australia Act 1976 (Cth), ss 37M, 37N, 51A

Cases cited: Cherry v Boultbee (1839) 4 My& Cr 442, 41 ER 171, cited
Wenkart v Pantzer (No 7) [2003] FCA 1211, 132 FCR 273, cited
Wenkart v Pantzer [2005] FCA 1572, 223 ALR 384, cited
Pantzer v Wenkart [2006] FCAFC 140, 153 FCR 466, cited
Wenkart v Pantzer [2007] FCA 1589, cited
Wenkart v Pantzer [2008] FCA 478, cited
Wenkart v Pantzer, in the matter of Wenkart [2008] FCA 1387, cited
Wenkart v Pantzer [2009] FCA 1086, cited
Wenkart v Pantzer [2010] FCA 866, 269 ALR 641, cited

Date of hearing: 28 October 2010

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 72

Counsel for the Applicant/
First Cross-Respondent: Mr M Green

Solicitor for the Applicant/
First Cross-Respondent: Bruce Stewart Dimarco

Counsel for the First Respondent/Cross-Claimant: Ms E A Collins

Solicitor for the First Respondent/Cross-Claimant: Bartier Perry

Solicitor for the Second Respondents/Second Cross-Respondent: J. Pembroke-Birss of S Moran & Co, Solicitors

IN THE FEDERAL COURT OF AUSTRALIA

NSW DISTRICT REGISTRY

GENERAL DIVISION

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 Respondents

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:

FLICK J

DATE OF ORDER:

16 DECEMBER 2010

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The proceeding is stood over to 24 December 2010 at 9.30 am with a view to then making orders to finalise this proceeding.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NSW DISTRICT REGISTRY

GENERAL DIVISION

NSD 7051…

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.

Keep reading for free

Create a free CaseChat account to read Wenkart v Pantzer (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] FCA 1408
Decision Date: 16 December 2010

CaseChat Overview and Summary

The case of Wenkart v Pantzer (No 2) involved the parties addressing residual issues left unresolved from a prior litigation. The dispute primarily centred around the calculation of interest for a specific period, the imposition of fixed costs, and the provision of declaratory relief. The matter was heard in the Supreme Court of New South Wales. The court had to decide whether certain orders should be made to finalise the proceeding, including the calculation of interest, the imposition of fixed costs, and the granting of declaratory relief.

The court examined the submissions from both parties, considering the principles of not conferring a windfall and adequately protecting the interests of Mr Pantzer. It found that the remaining orders already adequately protected Mr Pantzer's interests and declined to make some specific orders. The court concluded that a declaration should be made regarding Mr Pantzer's entitlement to a specific sum of money, along with an order for interest calculated from a particular date. Additionally, the court ruled on the payment of interest and the sale of the Paddington property, excluding certain orders that were deemed unnecessary.

The court also addressed the issue of costs, particularly whether a fixed sum should be ordered under Order 62 rule 4(2)(c). The court decided to stand over the proceeding to a later date to make orders finalising the matter, particularly focusing on the outstanding costs issue. The final orders included standing over the proceeding to allow for the drafting of orders to finalise the matter, ensuring that all aspects of the dispute were adequately addressed and resolved.

Orders

Orders of the court

1. The proceeding is stood over to 24 December 2010 at 9.30 am with a view to then making orders to finalise this proceeding.

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

Nor is it considered that order 10 should be made. The remaining orders, it is concluded, adequately protect the interests of Mr Pantzer. CONCLUSIONS In very summary form, it follows that:·a declaration should be made as to the entitlement of Mr Pantzer to be paid the sum of $173,079.71 and that further declaratory relief should now be granted;·an order should be made for the payment of interest on that sum as from 16 September 2008 and an order made that that interest is calculated in a particular amount;·judgment should be entered in favour of Mr Pantzer in a sum yet to be calculated; and·orders in accordance with the orders proposed by Mr Pantzer should be made in respect to the sale of the Paddington property, but not orders 9.5(g)(v) or (vi), 9.6 or order 10. It is not expected that any difficulty will be experienced in drafting orders to give effect to these reasons. Indeed, the only real matter that now requires the cooperation of the parties is the calculation of interest pursuant to s 51A. Judgment is to be delivered tomorrow in respect to the outstanding matter of costs and, especially, whether costs should be ordered to be paid in a “fixed sum” pursuant to Order 62 rule 4(2)(c). These matters were the subject of two separate Notices of Motion before the Court.ORDERS The Orders of the Court are:1.The proceeding is stood over to 24 December 2010 at 9.30 am with a view to then making orders to finalise this proceeding.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:	Wenkart v Pantzer (No 2) [2010] FCA 1408
Parties:	THOMAS RICHARD WENKART v WARREN PANTZER AS FORMER TRUSTEE OF THE ESTATE OF THOMAS RICHARD WENKART AND 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:	16 December 2010
Catchwords:	PRACTICE AND PROCEDURE – residual issues left unresolved – relief not to confer a windfall – calculation of interest for a part of a period – fixed costs order – declaratory relief
Legislation:	Access to Justice (Civil Litigation Reforms) Amendment Act2009 (Cth) Federal Court of Australia Act 1976 (Cth), ss 37M, 37N, 51A
Cases cited:	Cherry v Boultbee (1839) 4 My& Cr 442, 41 ER 171, cited Wenkart v Pantzer (No 7) [2003] FCA 1211, 132 FCR 273, cited Wenkart v Pantzer [2005] FCA 1572, 223 ALR 384, cited Pantzer v Wenkart [2006] FCAFC 140, 153 FCR 466, cited Wenkart v Pantzer [2007] FCA 1589, cited Wenkart v Pantzer [2008] FCA 478, cited Wenkart v Pantzer, in the matter of Wenkart [2008] FCA 1387, cited Wenkart v Pantzer [2009] FCA 1086, cited Wenkart v Pantzer [2010] FCA 866, 269 ALR 641, cited
Date of hearing:	28 October 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	72
Counsel for the Applicant/ First Cross-Respondent:	Mr M Green
Solicitor for the Applicant/ First Cross-Respondent:	Bruce Stewart Dimarco
Counsel for the First Respondent/Cross-Claimant:	Ms E A Collins
Solicitor for the First Respondent/Cross-Claimant:	Bartier Perry
Solicitor for the Second Respondents/Second Cross-Respondent:	J. Pembroke-Birss of S Moran & Co, Solicitors

IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY
GENERAL DIVISION	NSD 7051 of 2002

JUDGE:	FLICK J
DATE OF ORDER:	16 DECEMBER 2010
WHERE MADE:	SYDNEY