FEDERAL COURT OF AUSTRALIA
Wenkart v Pantzer (No 3) [2013] FCAFC 162
Citation: Wenkart v Pantzer (No 3) [2013] FCAFC 162 Appeal from: Wenkart v Pantzer (2010) 269 ALR 641; [2010] FCA 866;
Wenkart v Pantzer (No 2) [2010] FCA 1408;
Wenkart v Pantzer (No 3) [2010] FCA 1423Parties: THOMAS RICHARD WENKART v WARREN PANTZER – FORMER TRUSTEE OF THE ESTATE OF THOMAS RICHARD WENKART and HAPDAY HOLDINGS PTY LIMITED (ACN 001 185 253); WARREN PANTZER – FORMER TRUSTEE OF THE ESTATE OF THOMAS RICHARD WENKART v THOMAS RICHARD WENKART and HAPDAY HOLDINGS PTY LIMITED (ACN 001 185 253); HAPDAY HOLDINGS PTY LIMITED (ACN 001 185 253) v THOMAS RICHARD WENKART and WARREN PANTZER – FORMER TRUSTEE OF THE ESTATE OF THOMAS RICHARD WENKART File number: NSD 26 of 2011 Judges: DOWSETT, MCKERRACHER AND FOSTER JJ Date of judgment: 24 December 2013 Catchwords: PRACTICE AND PROCEDURE – whether the Full Court should reconsider published Reasons for Judgment before making final orders on appeal in order to address an argument with which the appellant contends the Full Court failed to deal – contentious argument not put before the primary judge or on appeal – application for reconsideration refused Legislation: Bankruptcy (Estate Charges) Act 1997 (Cth)
Bankruptcy Act 1966 (Cth)
Federal Court of Australia Act 1976 (Cth)
Federal Court Rules 2011Cases cited: Aktas v Westpac Banking Corporation (No 2) (2010) 241 CLR 570 cited
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 applied
Davis v Insolvency and Trustee Service Australia (No 2) (2011) 190 FCR 437 followed
Wenkart v Pantzer (No 1) [2013] FCAFC 81 related
Wenkart v Pantzer (No 2) [2013] FCAFC 136 related
Wenkart v Pantzer (2008) 6 ABC(NS) 37; [2008] FCA 478
Wenkart v Pantzer [2008] FCA 1387Date of hearing: Heard on the papers Date of last submissions: 17 December 2013 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 75 Solicitor/Advocate for the Appellant: Mr R Gorczyca Solicitors for the Appellant: Bruce & Stewart Lawyers Counsel for the First Respondent: Ms EA Collins SC Solicitors for the First Respondent: Bartier Perry Counsel for the Second Respondent: Ms EM Peden Solicitors for the Second Respondent: S Moran & Co
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 26 of 2011
ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA
BETWEEN: THOMAS RICHARD WENKART
AppellantAND: WARREN PANTZER – FORMER TRUSTEE OF THE ESTATE OF THOMAS RICHARD WENKART
First RespondentHAPDAY HOLDINGS PTY LIMITED (ACN 001 185 253)
Second RespondentAND BETWEEN: WARREN PANTZER – FORMER TRUSTEE OF THE ESTATE OF THOMAS RICHARD WENKART
Cross-Appellant in the First Cross-AppealAND: THOMAS RICHARD WENKART
First Cross-Respondent in the First Cross-AppealHAPDAY HOLDINGS PTY LIMITED (ACN 001 185 253)
Second Cross-Respondent in the First Cross-AppealAND BETWEEN: HAPDAY HOLDINGS PTY LIMITED (ACN 001 185 253)
Cross-Appellant in the Second Cross-AppealAND: THOMAS RICHARD WENKART
First Cross-Respondent in the Second Cross-AppealWARREN PANTZER – FORMER TRUSTEE OF THE ESTATE…
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- Case
- [2013] FCAFC 162
- Decision Date
CaseChat Overview and Summary
Orders
Orders of the court
1. The Appeal be allowed in part only.
2. To the extent that may be necessary, Mr Pantzer have leave to appeal from that part of the orders made by Branson J on 16 September 2008 whereby her Honour dismissed the application made by the cross-appellant in the First Cross-Appeal (Warren Pantzer) (Mr Pantzer) by Notice of Motion filed on 5 June 2008 to reopen his case and, as a consequence of that leave being granted and of the First Cross-Appeal being allowed, the order made on 16 September 2008 whereby the Court dismissed that Notice of Motion be set aside.
3. The First Cross-Appeal be allowed.
4. The Second Cross-Appeal be dismissed.
5. The orders and declarations made by Flick J in paragraphs 1, 2, 3, 4, 5, 6, 7 and 8 of the orders and declarations made by his Honour on 24 December 2010 be set aside.
In lieu of the said orders and declarations made by Flick J on 24 December 2010, THE COURT:
6. ORDERS that Mr Pantzer have leave to reopen his case in order to tender in evidence the letter dated 25 January 2002 from Cutler Hughes & Harris to Hunt & Hunt.
7. ORDERS that a true copy of the said letter be marked as Exhibit “A” in the First Cross-Appeal.
8. DECLARES that, as at 24 December 2010, the following sums were monies to which Mr Pantzer was lawfully entitled within the meaning of paragraph 1 of certain Consent Orders and Notes made by Beaumont J on 11 March 2002 in the proceedings below (Consent Orders):
(a) The sum of $98,095.16, being remuneration earned by Mr Pantzer in the period ending on 15 March 2002 in his capacity as trustee of the bankrupt estate of the appellant (Dr Wenkart);
(b) The sum of $163,477.54, being the net amount due to Mr Pantzer as at 15 March 2002 as expenses to be reimbursed to him on account of fees and disbursements rendered to him by his lawyers, Cutler Hughes & Harris, in his capacity as trustee of Dr Wenkart’s bankrupt estate;
(c) The sum of $169,955.94 certified by Ms Anne Sexton by Certificate of Taxation dated 13 December 2004 as being due and payable by Dr Wenkart to Mr Pantzer, being remuneration earned and expenses incurred by him in the period from 15 March 2002 to 21 October 2003 in his capacity as trustee of Dr Wenkart’s bankrupt estate;
(d) The sum of $33,295.95 certified by Ms Anne Sexton by Certificate of Taxation dated 12 January 2005 as being due and payable by Dr Wenkart to Mr Pantzer, being further expenses incurred by him in his capacity as trustee of Dr Wenkart’s bankrupt estate;
(e) The sum of $15,061.75, being the total of all fees rendered by Ms Anne Sexton to Mr Pantzer for carrying out several taxations of Mr Pantzer’s remuneration earned and expenses incurred in his capacity as trustee of Dr Wenkart’s bankrupt estate in the period prior to 24 December 2010;
(f) The sum of $26,531.00, being the sum paid by Mr Pantzer in June 2005 under the Bankruptcy (Estate Charges) Act 1997 (Cth); and
(g) The sum of $302,682.97, being expenses incurred by Mr Pantzer on account of fees and disbursements rendered to him by his lawyers, Sally Nash & Co, in his capacity as trustee of Dr Wenkart’s bankrupt estate, in respect of services provided to Mr Pantzer in the period from 22 October 2003 to 31 December 2006.
9. DECLARES that Mr Pantzer is entitled to interest on each of the sums specified in the declarations made in paragraph 8 above pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth) assessed at $582,196.82 (after taking account of the payment made on 3 February 2011 by Dr Wenkart to Mr Pantzer of the sum of $205,762.46).
10. ORDERS that Dr Wenkart pay to Mr Pantzer $1,185,534.67, being the total of the amounts specified in the declarations made in paragraphs 8 and 9 above less the sum of $205,762.46 paid by Dr Wenkart to Mr Pantzer on 3 February 2011.
11. Pursuant to Pt 41 of the Federal Court Rules 2011 and s 30 of the Bankruptcy Act 1966 (Cth), as amended, in aid of the Consent Orders, if the order for payment made in paragraph 10 above is not satisfied within 28 days of the date of these declarations and orders:
11.1 ORDERS that David Young, official liquidator, be appointed as trustee (the sale trustee) for sale of the whole of the land and improvements in Certificate of Title Folio Identifier G/33817 known as 47 Union Street, Paddington (the property) for the purpose of realising the property to enable payment to Mr Pantzer of the amounts to which Mr Pantzer is or may become lawfully entitled under the Consent Orders.
11.2 DIRECTS Hapday Holdings Pty Ltd (Hapday) and Dr Wenkart forthwith after the appointment of the sale trustee pursuant to Order 11.1 above to deliver to the sale trustee for the purpose of the sale of the property Certificate of Title Folio Identifier G/33817 and a Discharge of Mortgage No 3965299 in registrable form.
11.3 ORDERS Dr Wenkart forthwith after the appointment of the sale trustee pursuant to Order 11.1 above to give vacant possession of the property to the sale trustee.
11.4 ORDERS that a writ of possession of the property issue at the expiration of 28 days after the date upon which the sale trustee is appointed pursuant to Order 11.1 above.
11.5 ORDERS that the sale trustee have the following powers, namely, the power:
(a) To sell the property by public auction after marketing it for not less than four (4) weeks in a manner recommended by a real estate agent retained by the sale trustee to procure the sale of the property.
(b) To set a reserve.
(c) To negotiate with the two highest bidders if the property is passed in at the public auction.
(d) To sell by private treaty (or public auction again) if the property is passed in and there is no negotiated sale.
(e) To act and do all things in a manner appropriate to a trustee for sale in the marketing and sale of the property.
(f) To sign a transfer and all other documents required to convey good title to the property.
(g) To forthwith deduct and pay from the proceeds of sale:
(i) the commission and other expenses payable to any real estate agent retained by the sale trustee to procure the sale of the property;
(ii) the legal expenses of the sale trustee in respect of the sale of the property;
(iii) the other costs, expenses and outgoings (including rates and taxes charged on the property) incurred by the sale trustee in transferring the property to the purchaser;
(iv) the remuneration and expenses of the sale trustee and his agents and employees incurred in relation to the sale of the property; and
(v) all other amounts by way of remuneration or reimbursement of expenses to which Mr Pantzer is or may become lawfully entitled which have not been paid (including the amount ordered to be paid pursuant to Order 10 above).
11.6 DIRECTS that the sale trustee hold in trust the balance of the proceeds of sale of the property for 60 days after completion of the sale of the property pending determination of any further amounts to which Mr Pantzer may become lawfully entitled within the meaning of the Consent Orders which amounts have not been determined as at the date of completion of the said sale.
11.7 DIRECTS the sale trustee to pay any surplus to Hapday after he has accounted for all of the monies referred to in paragraph 11.5 of these orders.
11.8 DIRECTS the sale trustee to file with the Court and to serve upon Dr Wenkart, upon Hapday and upon Mr Pantzer, an affidavit deposing to his receipts and payments as trustee for sale of the property on or before the later of 120 days after completion of the sale of the property and the date of payment of the surplus pursuant to the direction in paragraph 11.7 of these Orders.
11.9 GRANTS liberty to the sale trustee and to Mr Pantzer, Dr Wenkart and Hapday, to apply to the Full Court in respect of any issue arising in respect of the disposition of the proceeds of sale of the property.
12. ORDERS that, in lieu of the order for costs made by Flick J in paragraph 3 of the orders and declarations made by his Honour on 24 December 2010 in the proceedings below and subject to the order made by Flick J in paragraph 11 of those orders and declarations, Mr Pantzer’s costs of the proceedings below be paid by Dr Wenkart on the trustee basis as taxed or agreed but excluding from such costs order all orders for costs made in the proceedings below prior to 24 December 2010 to the intent that this costs order is not intended to and does not vary any orders for costs made in the proceedings below prior to 24 December 2010 and also excluding from such costs order the costs the subject of the declarations made in par 8 above.
13. ORDERS that Dr Wenkart pay Mr Pantzer’s costs of and incidental to the Appeal and of and incidental to the Cross-Appeals on the trustee basis as taxed or agreed.
14. ORDERS that there be no orders as to the costs of the Appeal or either Cross-Appeal as between Dr Wenkart and Hapday.
THE COURT ALSO ORDERS THAT:
15. Dr Wenkart have leave to file in Chambers an Interlocutory Application in the form of the draft Interlocutory Application handed up in Court on 4 December 2013 and marked as MFI-1.
16. MFI-1 stand as Dr Wenkart’s Interlocutory Application.
17. Service of the said Interlocutory Application be dispensed with.
18. The said Interlocutory Application be dismissed.
19. Dr Wenkart pay Mr Pantzer’s costs of and incidental to the said Interlocutory Application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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
Ratio Decidendi
Legal Principle Established
For reasons which we shall shortly explain, we propose to grant leave to Dr Wenkart to file his Interlocutory Application in Chambers. We then propose to dismiss that Application with costs.CONSIDERATIONThe Relevant Principles The relevant principles were summarised by the Full Court in Davis v Insolvency and Trustee Service Australia (No 2) (2011) 190 FCR 437 at 439–440 [4] and [6], where the Court said:[4]It is a well established principle that “[a] superior court of justice … has full power to rehear or review a case until judgment is drawn up, passed and entered”: Texas Company (Australasia) Ltd v Federal Commissioner of Taxation (1940) 63 CLR 382 at 457 per Starke J, cited with approval in DJL v Central Authority (2000) 201 CLR 226 at [34] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. The Federal Court, by reason of s 5(2) of the Federal Court of Australia Act 1976 (Cth), is a superior court of record and, therefore, subject to the necessary factual precondition of the orders having not been entered, has such a power. Additionally, the Court is empowered to vary or set aside a judgment or order before it has been entered under O 35, r 7(1) of the Federal Court Rules 1979 (Cth). …[6]The principles surrounding the Court’s power to review its own judgment before its perfection are clear: “[w]hat must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing.” (Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 303 per Mason CJ). Because of the importance of the public interest in the finality of litigation, it is a jurisdiction “to be exercised with great caution” (at 302). The onus is on the applicant to demonstrate that he or she has not been heard: Autodesk at 302 citing Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 at 684 per Mason ACJ, Wilson and Brennan JJ. These principles are not affected by the promulgation of the Federal Court Rules 2011. In Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 at 303, Mason CJ had remarked (immediately before the passage cited by the Full Court at 439–440 [6] in Davis):… It must be emphasised that the jurisdiction is not to be exercised for the purpose of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a re-hearing has failed to present the argument in all its aspects or as well as it might have been put. The jurisdiction to reopen a judgment and to grant a re-hearing “… is not confined to circumstances in which the applicant can show that, by accident or without fault on the applicant’s part, he or she has not been heard” (per Mason CJ in Autodesk Inc v Dyason (No 2) at 303–302 approved by the plurality judgment of the High Court in Aktas v Westpac Banking Corporation (No 2) (2010) 241 CLR 570 at 573 [6]).