FEDERAL COURT OF AUSTRALIA

Wenkart v Pantzer (No 2) [2013] FCAFC 136

THE COURT ORDERS THAT:

1.    By 11 December 2013, the legal representatives of the parties confer and, to the extent possible, agree upon the figures to be inserted into paragraphs 9 and 10 of Attachment A (Proposed Orders) to Reasons for Judgment published this day (Wenkart v Pantzer (No 2) [2013] FCAFC 136), with interest to be calculated up to and including 19 December 2013.

2.    In the event that agreement is reached on the said figures, by 13 December 2013, the legal representatives of the parties communicate the agreed figures to the Associate to Foster J.

3.    In the event that agreement on the said figures is not reached, by 13 December 2013, each party is to send to the Associate to Foster J the figures which that party submits ought to be inserted into paragraphs 9 and 10 of Attachment A (Proposed Orders) together with calculations which explain the manner in which the submitted figures have been arrived at.

4.    Thereafter, the form of declarations and orders to be made in order to give effect to Reasons for Judgment published on 30 July 2013 (Wenkart v Pantzer [2013] FCAFC 81) and Reasons for Judgment published this day (Wenkart v Pantzer (No 2) [2013] FCAFC 136) be determined on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

the court:

Introduction

1    On 30 July 2013, we delivered Reasons for Judgment in these matters (Wenkart v Pantzer [2013] FCAFC 81) (the principal judgment). On that day, we made the following orders:

THE COURT ORDERS THAT:

1.    By 9 August 2013, Warren Pantzer file and serve Short Minutes of Declarations and Orders which he proposes in order to give effect to the Reasons for Judgment of the Full Court published this day together with a Written Submission of no more than six (6) pages in length in which he explains the basis for his proposed declarations and orders (including all necessary calculations) and supports that proposal to the extent that he may be advised.

2.    By 23 August 2013, Dr Wenkart and Hapday Holdings Pty Limited (Hapday) each file and serve a Written Submission of no more than six (6) pages in length in which they make such submissions as they may be advised in answer to Mr Pantzer’s submissions and proposed declarations and orders.

3.    By 27 August 2013, Mr Pantzer file such Reply Submission (if any) as he may be advised to make in answer to Dr Wenkart’s and Hapday’s submissions, such submission not to exceed three (3) pages in length.

4.    Thereafter, the form of Declarations and Orders is to be determined on the papers.

2    Each of Dr Wenkart, the former trustee of Dr Wenkart’s bankrupt estate (Mr Pantzer) and Hapday Holdings Pty Limited (Hapday) availed themselves of the opportunity to make submissions in writing as to the appropriate form of declarations and orders to be made in order to give effect to the principal judgment.

3    At [362] of the principal judgment, we said:

Therefore, subject to the observations made below concerning the form of the declarations and orders to be made, the orders which we have in mind making are:

THE COURT ORDERS THAT:

1.    The appeal be allowed in part only.

2.    The First Cross-Appeal be allowed.

3.    The Second Cross-Appeal be dismissed.

4.    The order made on 16 September 2008 whereby the Court dismissed the Notice of Motion filed on 5 June 2008 by the cross-appellant in the First Cross-Appeal (Warren Pantzer) (Mr Pantzer) be set aside.

5.    The orders and declarations made by Flick J in paragraphs 1, 2, 3, 4, 5, 6, 7 and 8 on 24 December 2010 be set aside.

In lieu of the said orders and declarations made by Flick J, THE COURT:

6.    ORDERS that the trustee 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 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 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 [to be precisely quantified], being the fees rendered by Ms Anne Sexton to the trustee 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; and

(f)    [In this and succeeding subparagraphs, insert such other claims as had been made and quantified as at 24 December 2010.]

9.    DECLARES that Mr Pantzer is entitled to interest on each of the sums specified in the declaration made in paragraph 8 above pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth) assessed as at the date of these declarations and orders [to be precisely quantified].

10.    ORDERS that Dr Wenkart pay to Mr Pantzer [the amount is to be precisely quantified], being the total of the amounts specified in the declarations made in paragraphs 8 and 9 above.

11.    Pursuant to O 37 of the Federal Court Rules and s 30 of the Bankruptcy Act 1966, as amended, in aid of the Consent Orders, if the order for payment made in paragraph 10 of these Orders 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 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 the trustee of the amounts to which the trustee is or may become lawfully entitled.

11.2    DIRECTS Hapday Holdings Pty Ltd (Hapday) and the applicant (Dr Wenkart) forthwith to deliver to the 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 to give vacant possession of the property to the trustee.

11.4    ORDERS that a writ of possession of the property issue at the expiration of 28 days after the date of these declarations and orders.

11.5    ORDERS that the trustee have the following powers:

(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 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 expense of any real estate agent retained by the trustee to procure the sale of the property;

(ii)    the legal expenses of the 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 trustee in transferring the property to the purchaser;

(iv)    the remuneration and expenses of the trustee and his agents and employees incurred in relation to the sale of the property;

(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 amounts ordered to be paid pursuant to Orders 8, 9 and 10 above).

11.6    DIRECTS that the 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 have not been determined as at the date of completion of the said sale;

11.7    DIRECTS the trustee to pay any surplus to Hapday after he has accounted for all of the monies referred to in these orders.

11.8    DIRECTS the trustee to file with the Court and serve on Dr Wenkart, on Hapday and on 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.

4    At [363]–[366] of the principal judgment, we went on to say:

It is our intention that the declaration specified in par 8 of the draft declarations and orders set out at [362] above should cover all outstanding claims for remuneration and expenses made by the trustee against Dr Wenkart which, by 24 December 2010, had been taxed and which thereafter were, by that date, not the subject of any unresolved appeal. In addition, it is our intention that fees paid to Ms Sexton and the Estate Realisations Charge be included within the scope of that declaration. It is also our intention that interest pursuant to s 51A of the Federal Court of Australia Act 1976 (Cth) be levied on the amounts which fell due from time to time in accordance with our reasons in respect of interest (as to which see [347]–[350] above) at the rates applicable from time to time under that Act and under the relevant rules of Court. Interest should be calculated up to and including 31 August 2013.

Finally, in arriving at the amount which is to be the subject of the order for payment in par 10 of the draft declarations and orders set out at [362] above, account needs to be taken of the payment which Dr Wenkart made in January 2011 in discharge of the judgment ordered by Flick J.

It will be apparent from the remarks we have made at [363]–[364] above that the principal area to be addressed by the trustee and, if necessary, Dr Wenkart, is the quantification of the trustee’s entitlements as at 24 December 2010, the calculation of interest in accordance with our reasons in respect of interest and the form of the costs order which we have indicated we have in mind. We have otherwise indicated the orders and declarations which we propose for the disposition of the Appeal and the Cross-Appeals in the draft declarations and orders set out at [362] above.

We will not make orders today. Rather, we will direct the trustee to bring in Short Minutes of Declarations and Orders in order to give effect to these Reasons for Judgment. We will allow Dr Wenkart and Hapday a reasonable opportunity to make submissions about the trustee’s suggested declarations and orders and thereafter deal with the matter on the papers.

5    Mr Pantzer attached to his Written Submissions dated 9 August 2013 a set of proposed declarations and orders which he submitted appropriately gave effect to the principal judgment. In his draft, Mr Pantzer accepted the Court’s suggestions embodied in pars 1 to 8(d) and 11.1 to 11.8 of the draft orders set out by the Court at [362] of the principal judgment. Mr Pantzer also accepted the structure reflected in the Court’s suggestions. His approach was to offer precise wording in respect of certain amounts which he submitted should be the subject of declaratory relief and an order for payment. He also addressed costs. In addition, he submitted that the parties should have liberty to apply to the Full Court in respect of any issue arising concerning the disposition of the proceeds of sale of the Paddington property which Dr Wenkart had charged as security for his obligations under the Consent Orders and Notes made by Beaumont J on 11 March 2002 (Consent Orders).

6    Dr Wenkart, in his Written Submissions dated 19 August 2013, took issue with several of the declarations and orders proposed by Mr Pantzer in his initial submissions. Hapday, in its Written Submission dated 28 August 2013, supported the submissions made by Dr Wenkart. Mr Pantzer answered Dr Wenkart’s Written Submissions by filing Written Submissions in Reply dated 27 August 2013.

7    There is no agreement amongst the parties as to the form of the declarations and orders to be made consequent upon delivery of the principal judgment.

8    These Reasons for Judgment resolve the issues raised by the parties as to the appropriate form of declarations and orders which ought to be made in order to give effect to that judgment.

9    We will address each issue in the order raised by Dr Wenkart in his Written Submissions.

Consideration

Issue 1—Finality and One Money Judgment

10    Dr Wenkart submitted that the Court should not make multiple declarations as contemplated by par 8 of the proposed declarations and orders set out at [362] of the principal judgment and as accepted by Mr Pantzer. He submitted that the Court should make only two declarations: One declaring the amount of the principal sum due and the other declaring the amount of interest payable thereon. He said that there should then be a consequential order for payment of a single sum. The final amount arrived at should make due allowance for the amount of $205,762.46 paid by Dr Wenkart to Mr Pantzer on 3 February 2011. Dr Wenkart submitted that the amount which he should now be ordered to pay to Mr Pantzer was $685,541.51. Dr Wenkart arrived at that sum by adding the specific amounts referred to at [343] of the principal judgment which, according to him, are:

He then calculated interest on those amounts at the prescribed rate and added the amount of that interest to the said amount of $499,886.34. Dr Wenkart also took due account of the amount of $205,762.46 paid by him to Mr Pantzer on 3 February 2011 in compliance with Order 4 made by Flick J on 24 December 2010 in order to arrive at the final figure of $685,541.51.

11    It was our intention at the time of delivering the principal judgment that the declarations and orders which we would ultimately make in order to give effect to that judgment would require Dr Wenkart to pay to Mr Pantzer all monies claimed by Mr Pantzer prior to 24 December 2010 which had been quantified and become due and payable under the Consent Orders as at that date (see esp [343], proposed Order 8(f) in [362] and [363] of the principal judgment).

12    While it was hoped that the declarations and orders when made would cover most of Mr Pantzer’s outstanding claims for remuneration and reimbursement of expenses incurred by him in his capacity as trustee of Dr Wenkart’s bankrupt estate, it was always understood by us that some claims made by Mr Pantzer prior to 24 December 2010 and all claims made by him after that date could not be determined by declarations and orders to be made as a consequence of the principal judgment and would have to be put aside for determination at a later date. Some amounts may not have been claimed by 24 December 2010 and some amounts which had been claimed by that date may not have been finally quantified by that date.

13    For those reasons, it was expected that, in all probability, neither the principal judgment nor the formal declarations and orders to be made in order to give effect to that judgment would finally determine all claims made by Mr Pantzer against Dr Wenkart for remuneration and for reimbursement of expenses prior to 24 December 2010. Claims made after that date could not be addressed at all.

14    Dr Wenkart submitted that the Court should now finally determine all such claims. For reasons which we have explained at [11]–[13] above, the Court is unable to do so.

15    In the principal judgment, the Court contemplated that the order for payment which it would make would be for one single sum. However, the Court also contemplated that, by making several declarations which explained the way in which that one single sum had been arrived at, future disputation about the subject matter and effect of the principal judgment would be avoided.

16    Mr Pantzer has proceeded upon the basis that the approach set out at [362] of the principal judgment was to be adhered to. He has put forward particular figures for each of the claims contemplated by the subparagraphs of proposed Declaration 8.

17    We continue to favour the form of declarations and orders set out at [362] of the principal judgment. We will, therefore, follow the structure of the proposed declarations and orders set out in that paragraph. We favour making declarations and orders in that form because we consider it to be important that the parties and other readers of our two judgments understand the basis upon which the figure ultimately ordered to be paid has been arrived at.

Issue 2—The Wording of Proposed Order 8(e)

18    The parties agree that Mr Pantzer is entitled to be reimbursed the amount of $15,061.75 as fees rendered by Ms 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. Dr Wenkart has suggested that Order 8(e) should be recast in order to make clear that the amount referred to is all the fees rendered by Ms Sexton in carrying out the tasks described in the proposed order. As we understand the position, $15,061.75 is the total amount rendered by Ms Sexton in respect of work done by her in the period up to 24 December 2010.

19    In those circumstances and in order to make the position crystal clear, we propose to rephrase the proposed Order 8(e) so that it reads as follows:

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.

Issue 3—Proposed Order 8(f)

20    Mr Pantzer originally claimed reimbursement of the amount of $26,702.48 as being the sum paid by him pursuant to his obligation to pay estate charges in respect of Dr Wenkart’s bankrupt estate under the Bankruptcy (Estate Charges) Act 1997 (Cth) (the Estate Charges Act). Mr Pantzer subsequently realised that the amount actually paid by him was $26,531 and revised his claim accordingly.

21    Dr Wenkart, on the other hand, submitted that the Court should allow only $20,000 because that was the amount claimed by Mr Pantzer in the proceedings below and was also the amount admitted by Dr Wenkart as having been paid by Mr Pantzer as estate charges.

22    The evidence of payment of estate charges and the amount paid is found at Vol 1 of Part C (Tab 25) of the Appeal Book. That evidence establishes that the amount of $26,531 was paid by Mr Pantzer on 10 June 2005 as charges under the Estate Charges Act. The amount paid comprised $20,000 charges and $6,531 by way of interest thereon.

23    Accordingly, the amount to be inserted in proposed Order 8(f) is $26,531.

Issue 4—Proposed Order 8(g)

24    Mr Pantzer submitted that the Court should make a declaration to the effect that the amount of $159,192.82 (being remuneration said to have been earned by him in the period from 22 October 2003 to 31 December 2006 in his capacity as trustee of the bankrupt estate of Dr Wenkart) was a sum of money to which he was lawfully entitled within the meaning of par 1 of the Consent Orders as at 24 December 2010. Dr Wenkart accepted that Mr Pantzer had made a claim for that amount by letter dated 17 January 2007 but submitted that the amount in question had not become due and payable within the meaning of the Consent Orders because Mr Pantzer’s claim had not been taxed as at 24 December 2010. Indeed, it seemed to be common ground that, as at the date of the filing of the parties’ submissions in August 2013, Mr Pantzer’s remuneration claim referrable to the period from 22 October 2003 to 31 December 2006 had still not been taxed.

25    Dr Wenkart drew support for this submission from the circumstance that, in the proceedings below, Branson J had not made any finding that this amount was presently due and payable but had simply recorded the fact that a claim for this amount had been made. Dr Wenkart drew the Court’s attention to 651–652 [34] and 656 [50] of her Honour’s judgment in Wenkart v Pantzer (No 10) (2007) 5 ABC(NS) 642 (being the judgment specified as Branson No 1 in the principal judgment). The existence of this claim for remuneration was also mentioned by us at [113] of the principal judgment. Dr Wenkart also submitted that Flick J had recognised that this particular claim had not yet been the subject of taxation and thus had not become due and payable when his Honour made Declaration 5 on 24 December 2010. It was said that the language chosen by his Honour demonstrated that this claim was one which was yet to be quantified.

26    Dr Wenkart attached to his Written Submissions dated 19 August 2013 a photocopy of a letter from the Deputy Official Receiver to Dr Wenkart’s solicitor dated 16 March 2007 in which the author of the letter acknowledged that Dr Wenkart had made a request for taxation of this claim within the 28 day period prescribed for such requests under the Bankruptcy Regulations 1996 (Cth) (the Bankruptcy Regulations) as they then stood (reg 8.09(1)). In addition, the author of that letter made passing reference to another claim made by Mr Pantzer upon Dr Wenkart in his letter to Dr Wenkart dated 19 January 2007 being the claim which is the subject of proposed Order 8(h). In respect of that claim, the author merely observed that Dr Wenkart was entitled to request Mr Pantzer to require his solicitors to tax their costs pursuant to s 167(1) of the Bankruptcy Act 1966 (Cth) (the Bankruptcy Act) (as that provision then stood).

27    Mr Pantzer objected to the Court paying any regard to the letter to which we have just referred upon the basis that it was not in evidence in the Appeal or in the Cross-Appeals. In addition, Mr Pantzer made the following submission (at par 9 of his Written Submissions in Reply dated 27 August 2013):

The mechanisms for determination of the quantum of Mr Pantzer’s entitlements were and are those available under the Bankruptcy Act 1966 and the Bankruptcy Regulations (judgment at [214(b)]). At the time the agreement evidenced by the consent orders was entered, the bankrupt or a creditor who was dissatisfied with the amount of a trustee’s claim for remuneration had 14 days after receiving notice of the claim to request a taxing officer to tax the claim. On the evidence in the appeal, no such request was made by Dr Wenkart. He merely filed a motion for an order requiring Mr Pantzer to withdraw his claim. Even if that motion is taken as a request for taxation (which it is not), it was made more than 14 days after notice of the claim was given to him (see Wenkart v Pantzer [2007] FCA 1589 at [34]).

28    The submission which Mr Pantzer made in par 9 of his Written Submissions in Reply is particularly unhelpful. Mr Pantzer submitted that the evidence before us did not establish that Dr Wenkart had requested Mr Pantzer to tax the claim for remuneration which he had made in his letter to Dr Wenkart dated 17 January 2007 within 14 days after receiving notice of the claim. But that submission did not address the true facts and focussed on the time period for requiring taxation as that period stood in March 2002 which was not the relevant time given that Mr Pantzer’s claim was not made until January 2007. Mr Pantzer’s submission also ignored the fact that, as at January 2007, the relevant period for requiring a trustee to tax a claim for remuneration under reg 8.09(1) of the Bankruptcy Regulations was 28 days after receipt of the claim, not 14 days after receipt of the claim, as submitted by him.

29    Mr Pantzer has not assisted the Court by informing the Court whether Dr Wenkart ever made a request of him to tax his 17 January 2007 claim for remuneration and, if so, whether that request was made within time (ie within 28 days of receipt of that letter).

30    We pause to note that, in Wenkart v Pantzer (2003) 133 FCR 204, the Full Court held that each of ss 162, 165 and 167 of the Bankruptcy Act regulated the claims and entitlements of Mr Pantzer to remuneration and reimbursement of expenses while he was acting as trustee in relation to Dr Wenkart’s bankrupt estate. In that case, the Full Court said that those sections operated by force of the Bankruptcy Act itself and not because of any agreement between the parties or order of the Court. The Full Court also said that it wished to make clear that these provisions had effect notwithstanding the annulment of Dr Wenkart’s bankruptcy. In particular, the Court held that the manner in which Mr Pantzer’s remuneration was to be determined and Mr Pantzer’s right to require a third party’s bill of costs to be taxed was governed by the provisions of the Bankruptcy Act and Regulations and was not lost upon annulment.

31    We have carefully considered the whole of the judgment of Branson J in Branson No 1 in order to ascertain whether, by that judgment, her Honour determined the question of whether Dr Wenkart had required Mr Pantzer to tax his 17 January 2007 claim for remuneration pursuant to s 162(4) of the Bankruptcy Act and reg 8.09(1) of the Bankruptcy Regulations and, if so, whether he had done so within the time specified in reg 8.09(1) of the Bankruptcy Regulations ie within 28 days after receipt of that claim, or whether, in all the circumstances, Dr Wenkart’s right to require Mr Pantzer’s claim for remuneration to be taxed had been lost.

32    We have come to the conclusion that the issues specified at [31] above were not determined by her Honour in Branson No 1. Her Honour did not identify those issues as issues to be determined by her in that judgment (as to which, see Branson No 1 at 652 [35]). The discussion at 655–656 [45]–[51] of Branson No 1 concerned legal costs incurred by Mr Pantzer after 21 October 2003, not Mr Pantzer’s remuneration earned in the period between 22 October 2003 and 31 December 2006.

33    It seems to us that, in light of the Full Court’s decision to which we referred at [30] above and in light of our own reasons in the principal judgment (at [343], [362] and [363]), the Court ought not to make a declaration that any particular sum is due from Dr Wenkart to Mr Pantzer unless and until the claimed amount has been taxed as required under the relevant provisions of the Bankruptcy Act and Bankruptcy Regulations or unless and until Dr Wenkart’s right to require taxation has been lost or fully exercised and exhausted. We are of the opinion that the question of whether taxation of Mr Pantzer’s claim for remuneration made in his letter of 17 January 2007 was required by Dr Wenkart within the time limited by reg 8.09(1) of the Bankruptcy Regulations was not litigated in the proceedings below and has not been litigated before us. For these reasons, we are not presently willing or able to determine whether that sum was due and payable to Mr Pantzer under the Consent Orders as at 24 December 2010.

34    In the circumstances, we are not prepared to make a declaration at this point in time in respect of the claim made by Mr Pantzer in his letter dated 17 January 2007 but wish to make clear that nothing in these Reasons for Judgment determines that claim or precludes the making of that claim in the future.

Issue 5—Proposed Order 8(h)

35    By proposed Order 8(h), Mr Pantzer seeks to have the Court order that Dr Wenkart pay the amount of $302,682.97 being expenses incurred by Mr Pantzer comprising 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 the period from 22 October 2003 to 31 December 2006.

36    Mr Pantzer claimed this amount from Dr Wenkart by letter dated 19 January 2007.

37    Dr Wenkart submitted that Branson J in Branson No 1 (at 656 [50]) found that bills of costs for legal services provided to Mr Pantzer in respect of Dr Wenkart’s bankrupt estate which relate to services provided after 21 October 2003 were to be taxed under the Bankruptcy Act on a solicitor/client basis. Dr Wenkart further submitted that, in the proceedings below, Mr Pantzer accepted that position. He said that that agreed position is reflected in Declaration 7 made by Flick J on 24 December 2010. That is to say, Dr Wenkart argued that Mr Pantzer accepted below that fees and disbursements rendered to him by Sally Nash & Co in respect of the period after 21 October 2003 were to be taxed under the Bankruptcy Act and Bankruptcy Regulations.

38    Mr Pantzer submitted that he had no obligation to refer the costs the subject of this claim for taxation.

39    In our judgment, the only right which Dr Wenkart ever had in respect of this claim was to request Mr Pantzer to require Sally Nash & Co to tax that firm’s fees and disbursements pursuant to s 167(1) of the Bankruptcy Act (in the form in which that provision stood in January 2007).

40    In his Written Submissions concerning the declarations and orders which the Court ought to make as a result of the delivery of the principal judgment, Dr Wenkart did not suggest that he had ever requested Mr Pantzer to require Sally Nash & Co to tax that firm’s bills of costs and disbursements in respect of work done after 21 October 2003 in accordance with s 167(1) of the Bankruptcy Act. It is clear from a careful reading of 651–652 [32]–[34] and 655–656 [45]–[51] of Branson No 1 that Branson J was not asked to determine the question of whether or not, as at the date of delivery of her Honour’s judgment, Mr Pantzer’s claim to reimbursement of expenses had to be taxed. Her Honour did not make any specific findings as to whether Dr Wenkart had requested Mr Pantzer to tax the bills of costs and disbursements rendered to him by Sally Nash & Co nor did she discuss and come to grips with the terms of s 167(1) of the Bankruptcy Act (as it then stood). Rather, she merely recorded (at 651–652 [34]) that a claim for reimbursement to the extent set out in Mr Pantzer’s letter to Dr Wenkart dated 19 January 2007 had been made by Mr Pantzer and that he had also alleged in the same letter that, because Dr Wenkart had not requested the trustee to tax that claim, the claim was therefore due and payable. If her Honour did find that Mr Pantzer had, in fact, become obliged to require Sally Nash & Co to tax its fees and disbursements in respect of services rendered after 21 October 2003, we think that her Honour was in error in so finding.

41    There is no evidence before us that Dr Wenkart ever requested Mr Pantzer to require Sally Nash & Co to tax those bills of costs or that Mr Pantzer ever actually required that firm to do so.

42    In those circumstances, we are prepared to proceed upon the basis that no such request was ever made. In the interests of finality, we propose to make the declaration sought in respect of this amount.

Issue 6—Proposed Declaration 9 and Order 10

43    The final amounts to be inserted into these paragraphs of the proposed declarations and orders are dependent upon the Court’s determination of the disputes concerning proposed Orders 8(f)–8(h). The Court now having determined those matters, we intend to require the parties to recalculate the interest amount due on the amounts which we propose to include in the order for payment and to do so in a short space of time. We will require the parties to calculate interest up to and including 19 December 2013.

Issue 7—Proposed Order 11.6

44    Dr Wenkart objected to the trustee for sale of the Paddington property having the power to hold the balance of the proceeds of sale of that property for 60 days after completion of the sale pending determination of any further amounts to which Mr Pantzer might become lawfully entitled within the meaning of the Consent Orders which have not been determined as at the date of completion of the sale. He submitted that the terms of the proposed Order 11.6 places the trustee for sale in the position of having to make determinations regarding what is or is not within the Consent Orders.

45    Be that as it may, we adhere to our intention to make Order 11.6 in the terms specified in the principal judgment. Order 11.6 has obvious practical advantages and (hopefully) will operate as an incentive to both camps to bring to an end all outstanding disputes.

Issue 8—Proposed Order 11.7

46    Dr Wenkart objected to this proposed order. He submitted that the order should specifically provide that any surplus be returned to Hapday immediately after the expiration of the 60 day period referred to in proposed Order 11.6. We do not consider that such a specific provision is necessary or desirable.

Issue 9—Proposed Order 11.9

47    Mr Pantzer submitted that there should be liberty to apply to the Full Court in respect of any issue arising between the parties concerning the disposition of the proceeds of sale of the Paddington property (proposed Order 11.9). By way of example of the utility of this proposed Order, Mr Pantzer submitted that such a provision will give to the parties the capacity to approach the Court to deal with the circumstance (should it arise) that the 60 day period provided for in proposed Order 11.6 turns out to be too short a period within which Mr Pantzer might secure the balance of his entitlements.

48    We agree that liberty to apply should be granted. In our view, it is implicit, in any event.

Issue 10—Costs Orders

49    There is no dispute amongst the parties that, in light of the principal judgment, Dr Wenkart ought to be ordered to pay Mr Pantzer’s costs of and incidental to the Appeal and of and incidental to both of the Cross-Appeals.

50    All parties agree that, in light of the principal judgment, the costs order made by Flick J in Order 3 of the orders made by his Honour on 24 December 2010 ought to be set aside. No party submitted that we should set aside any of Orders 9, 10, 11 or 12 made by Flick J on 24 December 2010.

51    Dr Wenkart submitted that the appropriate order for costs in respect of the proceedings below is:

Order that Mr Pantzer’s costs of the proceedings below be paid by Dr Wenkart on the trustee basis as taxed or agreed, but excluding all costs the subject of prior costs orders made below and excluding all costs the subject of declarations made in these Orders at Order 8.

52    As we understand Mr Pantzer’s position, he agrees that the costs order which we should make in respect of the proceedings below should be on terms that that order does not vary any other costs orders made in the proceedings below (with the exception of the costs order made in par 3 of Flick J’s orders on 24 December 2010).

53    Mr Pantzer did not make any specific submission challenging the proposition advanced by Dr Wenkart that the costs order to be made by this Court in respect of the proceedings below should also excise from its ambit costs encompassed within the amounts the subject of proposed Declaration 8 and the order for payment (proposed Order 10) to be made by this Court.

54    Accordingly, we propose to accede to the substance of Dr Wenkart’s suggestions in respect of the costs of the proceedings below.

Conclusions

55    We have attached as Attachment A to these Reasons for Judgment the final form of the Declarations and Orders which we propose to make in order to give effect to the principal judgment and to these Reasons for Judgment.

56    We require the assistance of the parties to calculate the final interest figure and thus the final figure to be inserted into pars 9 and 10 of the proposed Declarations and Orders. To this end, we will direct the parties to confer and to submit agreed calculations in respect of those two amounts. If agreement cannot be reached, each party will have an opportunity to put forward his or its calculations. We will then make final declarations and orders disposing of the Appeal and the Cross-Appeals without further reference to the parties. We anticipate that we will make those declarations and orders on 19 December 2013.

57    We wish to make it clear that we are not inviting further submissions in respect of any matter. All that we are seeking is the parties’ assistance in respect of the calculation of interest and the quantum of the final payment figure (Order 10).

58    There will be orders accordingly.

Associate:

Dated:    4 December 2013

aTTACHMENT a

No: (P)NSD26/2011

Federal Court of Australia

District Registry: New South Wales

Division: General

On Appeal from the Federal Court of Australia

THOMAS RICHARD WENKART

Appellant

WARREN PANTZER – FORMER TRUSTEE OF THE ESTATE OF THOMAS RICHARD WENKART and another named in the schedule

First Respondent

FIRST CROSS-APPEAL

WARREN PANTZER – FORMER TRUSTEE OF THE ESTATE OF THOMAS RICHARD WENKART

Cross-Appellant in the First Cross-Appeal

THOMAS RICHARD WENKART and another named in the schedule

First Cross-Respondent in the First Cross-Appeal

SECOND CROSS-APPEAL

HAPDAY HOLDINGS PTY LIMITED (ACN 001 185 253)

Cross-Appellant in the Second Cross-Appeal

THOMAS RICHARD WENKART and another named in the schedule

First Cross-Respondent in the Second Cross-Appeal

PROPOSED ORDER

THE COURT ORDERS THAT:

1.    The Appeal be allowed in part only.

2.    The First Cross-Appeal be allowed.

3.    The Second Cross-Appeal be dismissed.

4.    The order made on 16 September 2008 whereby the Court dismissed the Notice of Motion filed on 5 June 2008 by the cross-appellant in the First Cross-Appeal (Warren Pantzer) (Mr Pantzer) be set aside.

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 as at the date of these declarations and orders at $xxxx (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 $xxxx, 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.

Date that entry is stamped:

Deputy District Registrar

Schedule

    No: (P)NSD26/2011

Federal Court of Australia

District Registry: New South Wales

Division: General

Second Respondent:    HAPDAY HOLDINGS PTY LIMITED (ACN 001 185 253)

FIRST CROSS-APPEAL

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

SECOND CROSS-APPEAL

Second Cross-Respondent:    WARREN PANTZER – TRUSTEE OF THE BANKRUPT ESTATE OF THOMAS RICHARD WENKART