FEDERAL COURT OF AUSTRALIA
Wenkart v Pantzer (No 3) [2010] FCA 1423
Citation: Wenkart v Pantzer (No 3) [2010] FCA 1423 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), MACQAURIE 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: 17 December 2010 Catchwords: PRACTICE AND PROCEDURE – costs– fixing costs in a “gross sum” – desirability of making an order – absence of evidence as to the “gross sum” to be ordered Legislation: Federal Court Rules (Cth), Order 62 rr 4(2)(c), 46 Cases cited: Australian Competition and Consumer Commission v Boral Ltd [2007] FCA 14, cited
Beach Petroleum NL v Johnson (1995) 57 FCR 119, considered
Eat Media Pty Ltd v Mulready Media Pty Ltd [2010] FCA 392, 267 ALR 573, cited
Playcorp Group of Companies Pty Ltd v Peter Bodum A/S (No 2) [2010] FCA 455, cited
Seven Network Ltd v News Ltd [2007] FCA 2059, considered
Sony Entertainment (Australia) Pty Ltd v Smith [2005] FCA 228, 215 ALR 788, cited
Wenkart v Pantzer (No 8) [2004] FCA 280, cited
In the matter of Thomas Richard Wenkart, Wenkart v Pantzer [2007] FCA 1589, cited
Wenkart v Pantzer [2009] FCA 1086, cited
Wenkart v Pantzer [2010] FCA 866, 269 ALR 641, cited
Wenkart v Pantzer (No 2) [2010] FCA 1408, citedDate of hearing: 18 and 23 November 2010 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 36 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 SC Solicitor for the First Respondent/ Cross-Claimant: Bartier Perry Solicitor for the Second Respondents/ Second Cross-Respondent: Mr 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
ApplicantAND: WARREN PANTZER AS FORMER TRUSTEE OF THE ESTATE OF THOMAS RICHARD WENKART
First RespondentHAPDAY 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-ClaimantAND: THOMAS RICHARD WENKART
First Cross-RespondentHAPDAY HOLDINGS PTY LTD (ACN 001 185 253)
Second Cross-Respondent
JUDGE:
FLICK J
DATE OF ORDER:
17 DECEMBER 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The Notice of Motion as filed by Mr Pantzer on 23 November 2010 is dismissed.
2.The Notice of Motion as filed by Dr Wenkart on 23 November 2010 is dismissed.
3.The proceeding…
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Details
- Case
- [2010] FCA 1423
- Decision Date
CaseChat Overview and Summary
In Wenkart v Pantzer (No 3), the Federal Court was called upon to decide the issue of costs between the parties, Dr Wenkart and Mr Pantzer. The primary legal issue was whether Mr Pantzer should be granted an order fixing his costs in a "gross sum," as opposed to having the costs assessed on a party/party basis. The court had to evaluate the sufficiency and reliability of the evidence provided by both parties regarding the costs incurred.
The court acknowledged the broad discretion it has in making costs orders and the desirability of making such orders in a gross sum to avoid protracted litigation over costs. However, it found that there was not a sufficiently certain evidential basis to assess the costs accurately. The evidence provided by Mr Pantzer's Legal Costs Consultant, Mr Dickinson, and the affidavits of Mr Creais were contested by Dr Wenkart. The court noted objections to the evidence, particularly regarding Mr Dickinson's failure to disclose the basis for his conclusions. Despite these objections, the court concluded that it was unnecessary to resolve them before cross-examination, which was limited in scope. Ultimately, the court found that there was insufficient evidence to support a gross sum costs order.
As a result, the court dismissed Mr Pantzer's motion for a gross sum costs order and also dismissed Dr Wenkart's notice of motion. The court clarified that there should be no order for costs in relation to certain issues canvassed on specific dates. The court reiterated that Mr Pantzer should receive 90% of his costs incurred, taxed on a party/party basis, as previously decided. The court also made it clear that existing costs orders would not be varied and that no new costs orders should be made against other entities such as Hapday Holdings, Macquarie Health Corporation Limited, or Throvena Pty Limited. The proceeding was stood over to allow for the finalisation of the matter.
The court acknowledged the broad discretion it has in making costs orders and the desirability of making such orders in a gross sum to avoid protracted litigation over costs. However, it found that there was not a sufficiently certain evidential basis to assess the costs accurately. The evidence provided by Mr Pantzer's Legal Costs Consultant, Mr Dickinson, and the affidavits of Mr Creais were contested by Dr Wenkart. The court noted objections to the evidence, particularly regarding Mr Dickinson's failure to disclose the basis for his conclusions. Despite these objections, the court concluded that it was unnecessary to resolve them before cross-examination, which was limited in scope. Ultimately, the court found that there was insufficient evidence to support a gross sum costs order.
As a result, the court dismissed Mr Pantzer's motion for a gross sum costs order and also dismissed Dr Wenkart's notice of motion. The court clarified that there should be no order for costs in relation to certain issues canvassed on specific dates. The court reiterated that Mr Pantzer should receive 90% of his costs incurred, taxed on a party/party basis, as previously decided. The court also made it clear that existing costs orders would not be varied and that no new costs orders should be made against other entities such as Hapday Holdings, Macquarie Health Corporation Limited, or Throvena Pty Limited. The proceeding was stood over to allow for the finalisation of the matter.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Notwithstanding the considerable desirability of making an order pursuant to Order 62 r 4(2)(c) and the “wide discretion” of the Court in making costs orders, it is regrettably concluded that there is not a sufficiently certain evidential basis upon which such an order could be made if costs are to be assessed on a party/party basis. A GROSS SUM? — THE EVIDENCE Counsel on behalf of Dr Wenkart:·opposed the making of an order for costs in a “gross sum”; and·maintained that the state of the evidence relied upon by Mr Pantzer was such that even if an order were to be made it was not possible to properly assess the amount that should be ordered. The order as initially sought by Mr Pantzer in his Motion that costs be fixed in a gross sum of $472,077.38 was supported by evidence of a Legal Costs Consultant, Mr Dickinson. Two affidavits of Mr Creais were also relied upon. The evidence relied upon by Dr Wenkart was two affidavits of Mr Gorczyca. A number of objections were taken to the evidence of Mr Dickinson ranging from objections founded upon s 69(3) of the Evidence Act 1995 (Cth) through to objections founded upon the proposition that Mr Dickinson had expressed opinions without disclosing the basis upon which those conclusions had been reached. Those objections were noted and a decision as to the fate of those objections was reserved. There was little merit in resolving the objections in advance of any cross-examination as such cross-examination as thereafter took place was within a limited compass. The objections, it may be noted, were not without some merit. Objection was also taken to some parts of Mr Creais’ affidavits and Mr Gorczyca’s affidavits. But it is ultimately concluded that it is unnecessary to resolve any of the objections. The quantum of the costs relevantly incurred by Mr Pantzer was varied from time to time but at one stage was said to be $600,399.24. The task entrusted to Mr Dickinson, and the task he discharged, was “to provide an opinion on the likely quantum of party party costs and disbursements recoverable by [Mr Pantzer] as against [Dr Wenkart], taxed on a solicitor client basis, for work performed from 22 October 2003 to the present”. Adopting that approach, he maintained that the costs that would be recoverable would be $472,077.38. Mr Dickinson expressed no opinion as to the quantum of costs that would be recoverable if costs were to be taxed on a party/party basis as opposed to costs recoverable if taxed on a solicitor/client basis. The difference between the two approaches was nevertheless briefly touched upon by Mr Dickinson in his first affidavit when he said: [23] The test to be applied on a solicitor client taxation is more generous than a taxation conducted on an ordinary party party basis, particularly as the costs are not constrained by the Federal Court scale of costs. …He continued on to refer expressly to the following observations of His Honour Justice Finkelstein in Australian Competition and Consumer Commission v Boral Ltd [2007] FCA 14:[12] More usually an order for costs to be taxed on a solicitor/client basis is understood to mean that the person should recover that which he ought properly pay to his solicitor: Goodwin v Storrar [1947] 1 KB 457 at 458. The purpose of the order is to allow “as many of the charges which [the party] would have been compelled to pay to his own solicitor for costs of the action as fair justice to the other party will permit”: Smith v Smith [1906] VLR 78 at 80, citing from Daniels Chancery Practice. Oliver, Law of Costs (1960) p 1 states this is substantially “a party and party taxation on a more generous scale”.In providing the opinion that he did, Mr Dickinson set forth the methodology he pursued, including the need to apply “a global percentage reduction to the profit costs and disbursements to reflect a party party taxation determined on a solicitor client basis”.
Decision
Reasons for decision
Notwithstanding the breadth of the discretion conferred upon the Court when fixing costs in a “gross sum” pursuant to Order 62 r 4(2)(c) and the desirability of doing so in the present proceeding, it is concluded that there is an absence of a sufficiently certain evidential basis to assess those costs in any particular amount.CONCLUSIONS The Notice of Motion as filed on behalf of Mr Pantzer seeking an order for costs in a fixed sum is to be dismissed. There is no merit in the Notice of Motion as filed on behalf of Dr Wenkart. It had previously been decided that Mr Pantzer was to have 90% of his costs. The Motion sought to re-agitate that conclusion. But the filing of the Motion preserved the position of Dr Wenkart should there be an appeal. The matter of substance before the Court was the order sought by Mr Pantzer that costs be fixed in a “gross sum.” He has been unsuccessful. But there should be no order for costs either in favour of Mr Pantzer or Dr Wenkart with respect to the matters canvassed on 28 October, 18 November or 23 November 2010. Although Mr Pantzer was substantially successful in the matters dealt with in the judgment delivered yesterday (Wenkart v Pantzer (No 2) [2010] FCA 1408), he has been unsuccessful in now obtaining costs fixed in a “gross sum”. There should be no order as to costs in respect to the issues canvassed on these dates. Other than the order now made dismissing these two Motions, the order that should now be made to give effect to the issues as to costs resolved in Wenkart v Pantzer [2010] FCA 866 is that Mr Pantzer should have an order for costs in his favour in the present proceeding, those costs to be 90% of the costs incurred as taxed on a party/party basis. Had an order been made pursuant to Order 62 r 4(2)(c), it may have been appropriate to consider whether any such order should also embrace any orders as to costs previously made, including (if possible) costs orders in the other proceedings referred to in his Notice of Motion filed on 23 November 2010. But such an order is not to be made. Existing orders as to costs are not to be varied. It should be noted that that Motion includes an incorrect reference to NSD 2549/2005 which should be NSD 2459/2005. It should also be noted in respect to costs orders that should now be made that Hapday Holdings Pty Ltd (“Hapday Holdings”) filed an Outline of Submissions on 27 October 2010 surprisingly seeking an order that Mr Pantzer pay Hapday Holdings’ costs “on an indemnity basis, as agreed or taxed”. No such order should be made. Nor should any order be made that Hapday Holdings or Macquarie Health Corporation Limited or Throvena Pty Limited (jointly referred to from time to time as the Second Respondents) be entitled to recover their costs, or that any costs order should be made against these entities. These entities should bear their own costs.ORDERS The Orders of the Court are: 1.The Notice of Motion as filed by Mr Pantzer on 23 November 2010 is dismissed.2.The Notice of Motion as filed by Dr Wenkart on 23 November 2010 is dismissed.3.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
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