FEDERAL COURT OF AUSTRALIA

Wenkart v Pantzer (No 3) [2013] FCAFC 162

THE COURT ORDERS THAT:

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.

REASONS FOR JUDGMENT

1    On 30 July 2013, we published Reasons for Judgment (Wenkart v Pantzer (No 1) [2013] FCAFC 81) by which we determined the Appeal and Cross-Appeals (the principal judgment) filed by the parties in this long-running matter. We did not make final orders on 30 July 2013 because we required further assistance from the parties as to the form of the final relief to be granted consequent upon our decision. At [362] of the principal judgment, we set out the declarations and orders which we then considered ought to be made in order to give effect to the principal judgment. The final form of relief was to be determined in light of the further submissions which we had sought from the parties.

2    On 4 December 2013, we published further Reasons for Judgment (Wenkart v Pantzer (No 2) [2013] FCAFC 136) (the second judgment). On 4 December 2013, we did not make final orders. In the second judgment, however, we set out the terms of the declarations and orders which we were then minded to make. The only further assistance which we required at that time was in respect of the calculation of the appropriate interest figure to be inserted into the draft orders which we had prepared and the total judgment sum to be awarded in favour of Mr Pantzer against Dr Wenkart. We asked the parties to assist us with the calculation of those figures.

3    When judgment was delivered on 4 December 2013, the solicitor who appeared for Dr Wenkart on that occasion in order to take the second judgment sought the leave of the Court to file an Interlocutory Application. No prior notice of his intention to seek that leave had been given either to the Court, to Mr Pantzer or to Mr Pantzer’s legal representatives. Foster J, who delivered the second judgment on behalf of the Full Court on 4 December 2013, declined to grant leave to Dr Wenkart to file his Interlocutory Application at that time and informed the parties that the question of whether leave to file that document would be granted would probably have to be considered by the Full Court. His Honour also informed the parties that, if leave were granted, it was likely that the Full Court would determine the outcome of that Interlocutory Application on the papers. The parties were content with that approach.

4    By his Interlocutory Application, Dr Wenkart claims the following orders, namely, that:

1.    The Full Court reconsider paragraph [346] of its Judgment [referring to the principal judgment] and consider and deal with the Applicant’s submissions at paragraph [29] of his submissions on the Cross Appeal regarding prejudice.

2.    The Applicant be permitted to call evidence concerning Exhibit “A”.

3.    Pending the hearing of this application, no orders be entered in these proceedings.

5    Dr Wenkart also seeks an order for costs.

6    Paragraphs 345 and 346 of the principal judgment deal with Mr Pantzer’s application for leave to appeal from the decision of Branson J made on 16 September 2008 (Wenkart v Pantzer [2008] FCA 1387) (called “Branson No 3” in the principal judgment) not to allow Mr Pantzer to reopen his case below for the purpose of tendering certain additional documents.

7    One of the documents which Mr Pantzer had sought to tender before Branson J was a letter dated 25 January 2002 from Cutler Hughes & Harris to Hunt & Hunt (the 25 January 2002 letter).

8    At [346] of the principal judgment, we gave reasons why we proposed to give leave to Mr Pantzer to reopen his case in order to allow him to tender a copy of the 25 January 2002 letter.

9    Dr Wenkart now wishes to argue that, in coming to that decision, we failed to have regard to a submission made on his behalf in writing at paragraph 29 of his Outline of Reply Submissions in the First Cross-Appeal dated 26 July 2011 (Dr Wenkart’s Cross-Appeal Reply Submissions). He claims that, in that paragraph, he had submitted that he would suffer prejudice if the 25 January 2002 letter was admitted into evidence and that the Full Court had not considered the contents of that paragraph before ruling as we did at [346] of the principal judgment.

10    On 4 December 2013, after the listing in Court had concluded, Foster J made orders in Chambers in the following terms:

THE COURT ORDERS THAT:

1.    In the event that he wishes to make submissions to the Court in respect of either of the questions set out at subparagraphs (a) and (b) below, by 9 December 2013, the appellant (Dr Wenkart) file and serve a Written Submission of no more than four (4) pages in length containing such submissions as Dr Wenkart may be advised to make directed to the following questions, namely:

(a)    Whether the Full Court should grant leave to Dr Wenkart to file an Interlocutory Application in the form of the document handed up to Foster J in open Court on 4 December 2013 which was marked by Foster J as “MFI-1”; and

(b)    If so, whether the Full Court should grant the relief claimed in the said Interlocutory Application.

2.    In the event that he wishes to make submissions to the Court in respect of either of the questions set out at subparagraphs 1(a) and 1(b) above, by 13 December 2013, the first respondent (Mr Pantzer) file and serve a Written Submission of no more than four (4) pages in length containing such submissions as he may be advised to make directed to the questions set out at subparagraphs 1(a) and 1(b) above and which answer the submissions made by Dr Wenkart.

3.    By 12 noon on 16 December 2013, Dr Wenkart file and serve any Submissions in Reply, such submissions not to exceed two (2) pages in length.

4.    Thereafter, the questions specified in subparagraphs 1(a) and 1(b) above be dealt with on the papers.

THE COURT NOTES THAT:

5.    Dr Wenkart does not wish to tender any evidence in support of his application for leave to file the said Interlocutory Application nor does he wish to tender any evidence in support of the relief claimed in the said Interlocutory Application.

11    Those orders were made in order to ensure that all parties had a fair and reasonable opportunity to make submissions in relation to the relief claimed by Dr Wenkart in his Interlocutory Application. We note that no party wished to tender evidence in relation to that Interlocutory Application.

12    The following Written Submissions were made in respect of Dr Wenkart’s Interlocutory Application:

(a)    A Submission in Chief dated 9 December 2013 made on behalf of Dr Wenkart;

(b)    A Submission in Answer dated 13 December 2013 made on behalf of Mr Pantzer; and

(c)    A Submission in Reply dated 17 December 2013 made on behalf of Dr Wenkart.

13    Hapday Holdings Pty Ltd did not make a separate submission of substance. It merely adopted and supported the submissions made on behalf of Dr Wenkart.

14    As hoped, Dr Wenkart and Mr Pantzer have now agreed the figures which are to be inserted into paragraphs 9 and 10 of the proposed declarations and orders which comprised Attachment A to the second judgment. The parties have agreed that the figure to be inserted into paragraph 9 of the Court’s proposed orders is $582,196.82 and that the figure to be inserted into paragraph 10 is $1,185,534.67. In light of the parties’ agreement on the figures, we propose to insert those figures into each of those paragraphs as appropriate and to make orders substantially in accordance with Attachment A as previously indicated. Interest has been calculated by the parties up to and including 19 December 2013. We do not think that it is necessary to calculate additional interest for the period from 20 December 2013 up to and including today (24 December 2013) as the amount is not significant in the scheme of things.

15    By these Reasons for Judgment, we determine two questions, namely:

(a)    Whether the Full Court should grant leave to Dr Wenkart to file his Interlocutory Application; and

(b)    If so, whether the Full Court should grant the relief claimed in the said Interlocutory Application.

16    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.

Consideration

The Relevant Principles

17    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.

18    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.

19    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]).

20    Here, of course, no orders have yet been made giving effect either to the principal judgment or to the second judgment. The present application is not an application to vary or to set aside orders prior to entry. Rather, it is an application that the Full Court reconsider one paragraph of the principal judgment (viz [346]) before making final orders giving effect to the reasoning and decision set out in that paragraph.

21    However, we think that the principles which we have extracted at [17]–[19] above apply equally to the present circumstances. Reasons for Judgment have been delivered. The power to recall or to reconsider those Reasons can only be exercised if there is some matter calling for review.

22    What must be demonstrated is that the Court has apparently proceeded upon the basis of some misapprehension of the facts or of the relevant law. The Court should not allow a party to re-agitate arguments already put and dealt with under the guise of an application that the Court reconsider its judgment.

23    The only paragraph which Dr Wenkart seeks the Court to reconsider is [346] of the principal judgment.

24    At [345]–[346] of the principal judgment, we said:

THE TRUSTEE’S APPLICATION TO REOPEN

[345]    Leave to reopen should be granted if it is in the interests of justice to permit reopening (Aristocrat Technologies Australia Pty Ltd v IGT (Australia) Pty Ltd (2007) 73 IPR 545 at 547 [8]–[9] per Allsop J (as his Honour then was)).

[346]    The trustee submitted that Branson J misapprehended the facts in that she concluded that the trustee had a “surplus” of funds in his hands when, in truth, he did not. This erroneous conclusion was the foundation for her Honour’s refusal to allow the trustee to reopen and to tender (inter alia) the letter dated 25 January 2002 from CHH to Hunt & Hunt (as to which see [44]–[46] above). That letter was crucial in placing the events of late 2001 and early 2002 into a proper context so that, when the Court came to consider the state of the accounts in Dr Wenkart’s bankruptcy and the parties’ knowledge of those accounts as at the annulment date and subsequently, an accurate picture was obtained. Her Honour should have admitted the letter into evidence. We propose to give the trustee leave to reopen for the purpose of tendering that letter. We will admit the letter as Exhibit “A” in the trustee’s Cross-Appeal and in the Appeal.

25    The contents of the 25 January 2002 letter are set out in full at [44] of the principal judgment. We also made specific observations about the letter at [45]–[46] of that judgment.

Dr Wenkart’s Arguments

26    When Dr Wenkart’s solicitor sought leave to file Dr Wenkart’s Interlocutory Application on 4 December 2013, he said that the point which Dr Wenkart wished to raise was a very narrow point (T 2, line 36). He then said (at T 2, lines 36–40):

… but in submissions – written submissions filed on behalf of the appellant and which were spoken to by Mr Muddle, dealing at paragraph 29 of the written submissions was a detailed submission about prejudice which would arise if the letter [referring to exhibit A] were to be admitted and we only ask that the Full Court consider that.

A little later, the following exchange occurred (at T 4, lines 11–22):

HIS HONOUR:    All right. Mr Gorczyca, am I correct in understanding that the way you wish to put this is that you want the Court to have regard to paragraph 29 of Mr Muddle’s outline of reply submissions and to, in light of that consideration, which you would call our reconsideration, you want to have your interlocutory application determined.

MR GORCZYCA:    Yes.

HIS HONOUR:    And do you wish to put on any evidence about that? That is to say, in support of this interlocutory application.

MR GORCZYCA:    The interlocutory – no, your Honour. We don’t …

27    At T 4, lines 32–45, the following additional exchange took place:

MR GORCZYCA:    But on the application itself, no, we think it can be – the submission – the submission which we say hasn’t been dealt with in paragraph 29 contains references to the evidence that was brought before the court. So outside of that aspect, we say there’s no further evidence beyond that evidence referred to.

HIS HONOUR:    All right. So – just so that we’re at one on this. You’re content for the court to deal with the interlocutory application, if the court is prepared to accept it at all, by looking at paragraph 29; looking at the original reasons for the judgment [sic] and determining the principal matter which is order 1 in your interlocutory application on the papers.

MR GORCZYCA:    On the papers - - -

HIS HONOUR:    All right.

28    It is quite clear from the exchanges which took place on 4 December 2013 and from the terms of Dr Wenkart’s Interlocutory Application itself that, as submitted by Mr Gorczyca, on his behalf, the point which Dr Wenkart seeks to raise is indeed a very narrow point. Mr Gorczyca submitted that the Full Court did not address paragraph 29 of Dr Wenkart’s Cross-Appeal Reply Submissions when holding, as it did, that Mr Pantzer should have leave to reopen for the purpose of allowing him to tender the 25 January 2002 letter.

29    As far as the first question is concerned, Dr Wenkart submitted that there was an “unresolved issue” arising from the principal judgment and that the Court should now address that issue.

30    Dr Wenkart’s Submission in Chief directed to his claim that the Full Court should reconsider [346] of the principal judgment may be summarised in the following way:

(a)    Notwithstanding that, on 7 October 2004, Mr Pantzer’s solicitors provided to Dr Wenkart’s solicitors a copy of a complete listing of cash receipts and cash payments made during the period of Dr Wenkart’s bankruptcy, that is to say, in the period from 28 October 1999 to 15 March 2002 and had tendered that listing in the proceedings below, it was nonetheless incumbent upon Mr Pantzer to file additional affidavit evidence either from him or an appropriate person from Cutler Hughes & Harris to verify the contents of that listing. He did not do so.

(b)    Apart from the listing itself, there was no evidence in the proceedings below which established the quantum of the fees and disbursements actually paid by Mr Pantzer to Cutler Hughes & Harris in the period of Dr Wenkart’s bankruptcy or which established the quantum of the fees and disbursements rendered by that firm to Mr Pantzer in the same period which remained unpaid as at the annulment date. Nor was there any evidence which established that some fees and disbursements incurred by Mr Pantzer with Cutler Hughes & Harris prior to the date when Ms Sexton issued her first Certificate of Taxation (viz 17 February 2003) were not the subject of any taxation carried out by Ms Sexton.

(c)    At paragraph 29 of his Cross-Appeal Reply Submissions, Dr Wenkart submitted that he would be prejudiced by the admission into evidence of the 25 January 2002 letter.

(d)    Dr Wenkart is substantially prejudiced for at least the following reasons:

(i)    He is now not permitted to alter the conduct of his cross-examination of Mr Pantzer in the proceedings below.

(ii)    He is now unable to bring forward witnesses from Cutler Hughes & Harris or to bring forward documents (if they exist) from Cutler Hughes & Harris.

(iii)    He is now unable to bring forward evidence from an expert cost assessor to analyse the material upon which Ms Sexton did conduct the taxation process which resulted in the issue of her first Certificate of Taxation on 17 February 2003 and compare that material to the material which Mr Pantzer claims comprises the Cutler Hughes & Harris bills which were not taxed.

Mr Pantzer’s Submissions

31    Mr Pantzer opposed the grant of leave to file the Interlocutory Application. In support of that opposition, Senior Counsel for Mr Pantzer submitted that Dr Wenkart had not identified any “unresolved issues”. She submitted that Dr Wenkart had not suggested that the Full Court had failed to determine any ground of appeal or cross-appeal. She submitted that nothing remains unresolved and that the only course of action available to Dr Wenkart at this point in time is to seek special leave to appeal to the High Court. She also made the point that Dr Wenkart has been guilty of serious delay in bringing forward his Interlocutory Application.

32    As far as question 2 is concerned, Mr Pantzer submitted that:

(a)    Paragraph 29 of Dr Wenkart’s Cross-Appeal Reply Submissions does not address the 25 January 2002 letter at all. That paragraph dealt with other matters concerning the fees and disbursements rendered to Mr Pantzer by Cutler Hughes & Harris.

(b)    In her judgment (Wenkart v Pantzer (2008) 6 ABC(NS) 37; [2008] FCA 478) (“Branson No 2” in the principal judgment), Branson J found that Ms Sexton did not tax all of the work undertaken by Cutler Hughes & Harris for Mr  Pantzer (see [75] and [82]). Although Dr Wenkart had foreshadowed a challenge to these findings by means of a Notice of Contention which he had initially intended to seek leave to file in Mr Pantzer’s Cross-Appeal, Senior Counsel who appeared for Dr Wenkart at the hearing of the Appeal and the Cross-Appeals abandoned Dr Wenkart’s application to file his Notice of Contention. The consequence of that abandonment was that the findings of Branson J to the effect that not all of the costs and disbursements of Cutler Hughes & Harris had been taxed by Ms Sexton was not challenged in the Appeal or in either of the Cross-Appeals.

(c)    In his Written Submissions in support of his current Interlocutory Application, Dr Wenkart seeks to re-agitate issues which could only have been relevant to the subject matter of his abandoned Notice of Contention.

(d)    None of Dr Wenkart’s submissions relate to the 25 January 2002 letter.

(e)    The Court should reject Dr Wenkart’s current application.

Dr Wenkart’s Submissions in Reply

33    In his Submissions in Reply in respect of his current Interlocutory Application, Dr Wenkart emphasised that he was not seeking at this stage to be permitted to call fresh evidence. He submitted that it was now too late for him to do so and that the essence of his complaint is that he has been irretrievably prejudiced. He complained that Mr Pantzer was, in effect, reversing the onus of proof on the question of the quantum of Cutler Hughes & Harris’ fees and disbursements. Dr Wenkart submitted that the Full Court had not made any relevant findings in so far as the 25 January 2002 letter was concerned.

Discussion

34    The decisions of the Full Court to which Dr Wenkart’s current Interlocutory Application is directed comprise a decision to grant Mr Pantzer leave to reopen for the purpose of allowing him to tender the 25 January 2002 letter and then a consequential decision to admit that letter into evidence in the Appeal and in Mr Pantzer’s Cross-Appeal. Dr Wenkart submitted that those decisions should be reconsidered because they were apparently made without the Full Court paying any regard to paragraph 29 of his Cross-Appeal Reply Submissions. He suggested that this was so because the Full Court did not expressly refer to that paragraph or to its contents anywhere in the principal judgment.

35    Branson J refused Mr Pantzer leave to reopen for the purpose of tendering the 25 January 2002 letter, amongst other things. Her Honour did so in Branson No 3.

36    At [148]–[155] of the principal judgment, we endeavoured to explain the essence of her Honour’s reasoning in Branson No 3.

37    At [26] in Branson No 3, her Honour said:

The additional evidence sought to be adduced by Mr Pantzer is:

(a)    a copy of an affidavit of Mr Holden sworn on 5 December 2001 in a Supreme Court of NSW proceeding;

(b)    the copy bills of costs referred to in [66] of the reasons for judgment of 11 April 2008 [referring to Branson No 2];

(c)    a copy facsimile transmission dated 4 December 2001 from Cutler Hughes & Harris to Mr Alan Jessup of Hunt & Hunt, Dr Wenkart's then solicitors.

Her Honour did not refer to the 25 January 2002 letter at [26] of Branson No 3. Instead, she referred to a letter dated 4 December 2001 from Cutler Hughes & Harris to Hunt & Hunt.

38    Regrettably, her Honour misdescribed the material which Mr Pantzer intended to tender before her had he succeeded in his reopening application.

39    Mr Pantzer’s reopening application before her Honour was supported by an affidavit sworn by David Robert Samuel Creais on 4 June 2008. At paragraph 3 of that affidavit, Mr Creais described the material which Mr Pantzer would seek to tender were he given leave to reopen in the following terms:

(a)    A copy of the affidavit of G A Holden sworn 5 December 2001 in Supreme Court of NSW, Equity Division, proceedings 5137 of 2001;

(b)    the “Bills of Costs”, copies of which were enclosed with the letter dated 16 January 2002 from the first respondent/cross-claimant to Hunt & Hunt which is referred to at paragraph 66 of the Reasons for Judgment in these proceedings published on 11 April 2008; and

(c)    a copy of the facsimile from Cutler Hughes & Harris to Hunt & Hunt, dated 25 January 2002, a copy of which is annexed and marked “A” to [Mr Creais’] affidavit sworn and filed in these proceedings on 21 May 2008.

40    All of the documents referred to by Mr Creais in paragraph 3 of his affidavit sworn on 4 June 2008 were exhibited to that affidavit.

41    It is quite clear that the document referred to in sub-paragraph (c) of paragraph 3 of Mr Creais’ affidavit sworn on 4 June 2008 is the 25 January 2002 letter and not the letter dated 4 December 2001 referred to by her Honour at [26] of Branson No 3.

42    We have looked at the transcript of the argument which took place before Branson J on 31 July 2008 concerning Mr Pantzer’s application for leave to reopen. The transcript of that argument also makes very clear that the materials which Mr Pantzer was seeking to tender before her Honour were those described in paragraph 3 of Mr Creais’ affidavit sworn on sworn on 4 June 2008 which, of course, included the 25 January 2002 letter.

43    Although Mr Pantzer had sought leave to reopen before Branson J in order to tender three items of evidence, by the time of the hearing of his Cross-Appeal, he had confined himself to challenging her Honour’s decision in respect of one document only—the 25 January 2002 letter. He did not press the tender of the other materials.

44    Counsel who appeared for Dr Wenkart before Branson J on 31 July 2008 opposed Mr Pantzer’s application for leave to reopen. When Counsel who appeared for Mr Pantzer on that occasion sought to read the affidavit of Mr Creais, Counsel appearing for Dr Wenkart objected to the tender of the documents which were exhibited to that affidavit. Her Honour admitted the material for the purpose of identifying the evidence which would be tendered were she minded to grant to Mr Pantzer leave to reopen and only for that purpose. .

45    It is apparent from the exchanges which took place between her Honour and Counsel on 31 July 2008 that (rightly or wrongly) her Honour regarded Mr Pantzer’s application for leave to reopen as an attempt to circumvent the orders made by Lindgren J on 21 October 2003 (as to which see [89]–[91] of the principal judgment).

46    Her Honour dismissed Mr Pantzer’s application for leave to reopen because she concluded (incorrectly as we have found) that the proceeding below had been conducted by the parties on the basis of an agreement between them that all of the Bills of Costs rendered by Cutler Hughes & Harris to Mr Pantzer in respect of Dr Wenkart’s bankruptcy would be taxed, irrespective of when they were rendered. Her Honour saw Mr Pantzer’s reopening application as an attempt to reinterpret the orders made by Lindgren J, an attempt which she regarded as impermissible.

47    There is nothing in the materials before this Court which form part of the appeal papers in the Appeal and the Cross-Appeals which suggests that Dr Wenkart opposed Mr Pantzer’s reopening application before Branson J and the tender of the 25 January 2002 letter on the ground that Dr Wenkart would suffer irretrievable prejudice or, indeed, any prejudice if the letter were admitted into evidence before her Honour. Her Honour did not record in Branson No 3 that such a submission had been made to her and we have seen no other evidence that such a submission was made to her. The grounds of opposition advanced by Dr Wenkart before her Honour are those which her Honour recorded in Branson No 3.

48    We are not satisfied, therefore, that Dr Wenkart made submissions to her Honour that the tender of the 25 January 2002 letter would cause him irretrievable prejudice.

49    It follows, therefore, that we are not satisfied that the submissions to the effect that Dr Wenkart would suffer prejudice if the 25 January 2002 letter is admitted into evidence now being advanced to the Full Court were ever made below.

50    Dr Wenkart broke up his Cross-Appeal Reply Submissions into three sections, sections A, B and C. Sections B and C are not presently relevant. Somewhat confusingly, Dr Wenkart addressed Section A under four sub-headings called “Questions”. These are Questions A, B, C and D.

51    Section A is headed: “The Cutler Hughes & Harris taxation issue”. Question A within Section A is headed: “Had all CHH work in fact been taxed?”.

52    Senior Counsel for Dr Wenkart made clear at the hearing before us that Question A in Section A, as formulated by him, contained those submissions which were intended to be put in support of Dr Wenkart’s proposed Notice of Contention. Senior Counsel did not suggest anywhere in his submissions to this Full Court that the submissions which he made under that sub-heading related to any other part of the Appeal or the Cross-Appeals. The submissions which Dr Wenkart made directed to Question A in Section A are set out in paragraphs 4–14 of his Cross-Appeal Reply Submissions. Because Dr Wenkart did not press his application for leave to file his foreshadowed Notice of Contention, Senior Counsel for Dr Wenkart requested the Court to “strike out” and ignore paragraphs 4–14 of his Cross-Appeal Reply Submissions (T 4 lines 4–9). We did so.

53    Question B in Section A is headed: “Did Mr Pantzer have an entitlement to refuse taxation”. Paragraphs 15–17 of Dr Wenkart’s Cross-Appeal Reply Submissions addressed this Question. Those submissions are not presently relevant.

54    Question C in Section A is headed: “Did Branson J’s discretion on the procedural question miscarry?”. Paragraphs 18–24 address this Question.

55    It is in this last group of paragraphs that Dr Wenkart’s submissions concerning Branson J’s decision to refuse leave to Mr Pantzer to reopen are made. We set out those paragraphs in full (omitting footnotes):

18.    It is submitted that, in any event, Branson J’s discretion did not miscarry when her Honour came to dismiss Mr Pantzer’s application to re-open.

19.    The issue was one for the exercise of discretion by her Honour and hence one to which House v The King principles apply. Further, it was a question concerning procedure, in relation to which an appellate court will exercise particular caution. Not only must there be an error of principle, but the decision appealed from must work a substantial injustice to one of the parties.

20.    The letter dated 25 January 2002 (referred to at paragraph 13 of Mr Pantzer’s Submissions) was not sought to be put to Branson J. No transcript reference is provided to suggest that it was. It should not be received by this Court on appeal.

21.    Mr Pantzer’s attempt to re-open was accompanied by an affidavit of Mr Pantzer’s solicitor, Mr Creais, which was said by Counsel to be the material which Mr Pantzer wished to read if given leave to re-open. That material clearly overlapped with the work which was taxed by Ms Sexton. So much was made clear in the course of submission. Mr Creais’ affidavit exhibited draft invoices in relation to work which had unambiguously been the subject of Ms Sexton’s very taxation. They were not signed and had a date different from the copy of the invoice (to the extent to which that invoice was exhibited in WPEX 1). In many cases, the summary total did not match the corresponding invoice. The costs agreement had not been put into evidence. Each invoice was not marked as a “tax invoice”. There was no invoice numbers. Her Honour was invited to compare the very different invoices and narrations issued by Cutler Hughes and Harris which were in evidence: for example, at Pt B CRI, Tab 41, 119-200.

22.    More significantly, it was not proved that the bills in question were “enclosed” with the letter dated 16 January 2002. No one came forward to prove that assertion, and her Honour did not accept Mr Creais’ affidavit as proof of that fact. During the hearing in 2005, it was never put to any witness that this was the case. There was nothing before the Court to support any such inference.

23.    In disposing of Mr Pantzer’s application, Branson J nevertheless considered the evidence to be brought forward. It is submitted that her Honour correctly held that the evidence would not relevantly bear on the issue which was claimed to be relevant. There was no denial of procedural fairness. There is no apparent challenge to that finding in Mr Pantzer’s cross-appeal.

24.    Unless this Court finds that the decision which her Honour made on the application to reopen was not one which was open to her Honour and, moreover, has in fact worked a substantial injustice to Mr Pantzer, then the remaining question does not arise.

56    The submission made by Dr Wenkart at paragraph 20 of his Cross-Appeal Reply Submissions cannot be sustained. We have no doubt whatsoever that Mr Pantzer applied to Branson J to reopen in order to tender (amongst other things) the 25 January 2002 letter and that her Honour refused him leave to do so. Her Honour’s failure accurately to refer to that letter at [26] of her Honour’s Reasons for Judgment (Branson No 3) does not alter the fact that Mr Pantzer wanted to tender the 25 January 2002 letter and that her Honour did not permit him to do so.

57    Dr Wenkart did not make any submission in the submissions directed by him to Question C in Section A (paragraphs 18–24) to the effect he would suffer irretrievable prejudice or indeed any prejudice should this Full Court decide to overturn Branson J’s decision to refuse leave to Mr Pantzer to reopen and to admit into evidence the 25 January 2002 letter.

58    Question D in Section A of Dr Wenkart’s Cross-Appeal Reply Submissions is headed: “Was Mr Pantzer entitled to depart from the conventional position which had applied between the parties in the litigation since October 2003, in any event”. The submissions directed to this Question are found in paragraphs 25–29 in Dr Wenkart’s Cross-Appeal Reply Submissions.

59    This group of submissions is directed to the findings made by Branson J to the effect that the parties were bound by their conduct of the proceedings below which conduct included an acceptance by all concerned that all fees and disbursements rendered by Cutler Hughes & Harris to Mr Pantzer in respect of Dr Wenkart’s bankruptcy would be taxed. As we have already mentioned, this conclusion was erroneous. At the hearing of the Appeal and the Cross-Appeals before us, Dr Wenkart relied upon the contents of paragraphs 25–29 to support his contention that Mr Pantzer was somehow estopped from contending that not all of Cutler Hughes & Harris’ fees and disbursements would be taxed. We rejected Dr Wenkart’s estoppel arguments at [289]–[290] of the principal judgment. We saw paragraph 29 of his Cross-Appeal Reply Submissions as an attempt by him to demonstrate relevant detriment for the purposes of his estoppel argument.

60    At paragraph 26 of his Cross-Appeal Reply Submissions, Dr Wenkart submitted that Mr Pantzer was bound by the concession made on his behalf by Counsel to Lindgren J on 21 October 2003. He also submitted that Mr Pantzer had been requested to and had agreed to refer all lawyers’ charges (including those rendered by Cutler Hughes & Harris) to taxation.

61    At paragraph 27, it was submitted that all of Cutler Hughes & Harris’ fees and disbursements had, in fact, been taxed by Ms Sexton.

62    At paragraphs 28 and 29 of Dr Wenkart’s Cross-Appeal Reply Submissions, the following submissions were made (footnotes omitted):

28.    Mr Pantzer has still not identified precisely those invoices which were not taxed and to which he now claims an entitlement. Further there was, and still is, no explanation at all for the delay between 2003 and 2008 in bringing this assertion forward.

29.    Dr Wenkart was prejudiced by this late evidence in any event. If there had been any debate beyond bringing to account the total amount of Ms Sexton’s certificate of taxation, then it is likely that it would have been necessary to obtain evidence from members of Cutler Hughes and Harris and, possibly, the expert evidence of a costs assessor. Further, and importantly, if it had been known that Mr Pantzer asserted an entitlement to a substantial additional sum for CHH, then Dr Wenkart may well have formed a different view about whether any debt was due to Mr Pantzer in the course of that five years of litigation between 2003 and 2008. In the face of such prejudice, and with no explanation for the delay, her Honour was correct in holding Mr Pantzer to the position he had ado-ted for so many years.

63    The first sentence of paragraph 29 of Dr Wenkart’s Cross-Appeal Reply Submissions refers to “…this late evidence…”. In paragraph 28, there is mention of Cutler Hughes & Harris’ invoices. There is no reference at all in paragraphs 25 to 29 to the 25 January 2002 letter. It is not at all clear to us what evidence was sought to be brought to mind by Dr Wenkart’s use of the expression “…this late evidence…” in the first sentence of paragraph 29. Had he obtained leave to reopen from Branson J, Mr Pantzer would have tendered three specific items evidence: Mr Holden’s Supreme Court affidavit, a bundle of Cutler Hughes & Harris invoices and the 25 January 2002 letter.

64    Although the reference to “late evidence” in paragraph 29 is, at the very least, ambiguous, it seems to us that it was not intended to be a reference to the 25 January 2002 letter. We say this because, according to Dr Wenkart, that letter had not been sought to be tendered before Branson J at all (as to which see paragraph 20 of Dr Wenkart’s Cross-Appeal Reply Submissions). If, according to Dr Wenkart, the letter had not been the subject of Mr Pantzer’s reopening application at all, then it could not have been encompassed within his reference to “late evidence” in paragraph 29. We think that the reference to “late evidence” in that paragraph is probably a reference to Cutler Hughes & Harris’ invoices although, as we have said, the matter is far from clear.

65    In any event, Dr Wenkart is now seeking to re-agitate matters which have been concluded against him in the principal judgment.

66    For example, in support of his current Interlocutory Application, Dr Wenkart relies upon the subject matter of paragraph 19(e) of the Defence which he filed in answer to Mr Pantzer’s Points of Claim filed on 17 May 2004. At [96]–[105] of the principal judgment, we addressed the significance of that pleading.

67    Ultimately, of course, all of the facts and matters traversed in [1]–[241], fed into our consideration of the issues in the Appeal and the Cross-Appeals which commenced at [242].

68    At [256]–[293] of the principal judgment, we set out our findings and conclusions in relation to Issue 1 (No Debt to Support an Order for the Appointment of a Trustee for Sale).

69    In particular, at [266]–[272] of the principal judgment, we said:

[266]    The trustee had remunerated himself and paid legal fees to CHH and to Counsel totalling $504,674.11 in the period up to 19 December 2000. The largest components of this amount are set out at [30] above.

[267]    Towards the end of December 2000, the amount of total receipts, details of payments made by the trustee and the quantum of surplus funds held by the trustee were conveyed to Dr Wenkart and to Throvena, Hapday and MHC.

[268]    Neither Dr Wenkart nor any of his creditors requested the trustee at any time in 1999 or 2000 to require CHH to tax its costs pursuant to s 167 of the Bankruptcy Act nor, in that period, did Dr Wenkart or any of his creditors require the trustee to tax his remuneration.

[269]    In the last few months of 2001 and in the early part of 2002, CHH and Hunt & Hunt were engaged in correspondence which traversed in detail the unresolved claims then being advanced by the trustee for remuneration and payment of expenses. The facts concerning these communications are set out in detail at [38]–[46] above. They may be summarised as follows:

(a)    As at 4 December 2001, the trustee was claiming unpaid remuneration of $183,875.11 and expenses of $247,103.62 with estimated future remuneration and expenses up to the date of the annulment meeting of approximately $11,600. It is quite clear that the figures referred to in CHH’s letter dated 4 December 2001 related to work done up to 30 November 2001 which had not yet been paid for. All relevant parties well appreciated as at that date that, by the end of 2000, the trustee had paid out in excess of $500,000.

(b)    As at 25 January 2002, the trustee had indicated a willingness to accept $105,000 on account of unpaid remuneration for the period up to 31 December 2000 and a further $105,000 on account of CHH’s unpaid fees and disbursements incurred by him up to 31 December 2000. In respect of work referable to the period from 1 January 2001 to 25 January 2002, the trustee claimed $75,000 plus GST and realisation charges by way of remuneration and a further sum of approximately $155,000 on account of expenses payable to CHH.

[270]    The correspondence between CHH and Hunt & Hunt in late 2001 and early 2002 makes perfectly clear that, at no time up to late January 2002, had either Dr Wenkart or his creditors required the trustee to tax any of his claimed remuneration (whether paid or unpaid) or requested the trustee to require CHH to tax any of their fees and disbursements (whether paid or unpaid).

[271]    The events leading up to the annulment meeting are addressed in detail at [47]–[57] above.

[272]    As at the annulment date, the trustee had propounded a claim for remuneration which was then outstanding totalling $220,406.07 and a claim for payment of expenses (CHH’s legal fees and disbursements) of $337,301.72 (including GST).

70    Then, at [279]–[292], we went on to say:

[279]    In their letter dated 24 April 2002 to Sally Nash & Co, Hunt & Hunt requested the trustee to require CHH to tax their costs and also attempted to compel the trustee to tax his own remuneration. As we have already noted, by that date, Dr Wenkart and his creditors had lost the right to compel the trustee to tax his claim for remuneration. Of course, they had no right to compel the trustee to require CHH to tax its fees and disbursements. They could only request the trustee to exercise his discretion under s 167(1) of the Bankruptcy Act.

[280]    The trustee never accepted that he was obliged to require CHH to tax its fees and disbursements and did not require CHH to do so prior to 6 August 2002 when the Official Receiver appointed Ms Sexton to tax some of CHH’s fees and disbursements. At and after that time, the trustee acquiesced in the taxation of those fees and disbursements claimed by CHH which remained unpaid as at the end of the annulment meeting (after deducting the $105,000 paid on that day on account of CHH’s fees and disbursements) being approximately $232,301.72 (including GST) and those fees and disbursements of CHH which had been paid by means of the cheque for $105,000 delivered on that day.

[281]    Having paid close attention to what actually occurred, we have no doubt that the “paid” costs which Ms Sexton taxed in her Certificate dated 17 February 2003 related to those claims which were satisfied by the payment of $105,000 made to CHH on 15 March 2002 at the behest of Dr Wenkart and that the amount of unpaid costs taxed by Ms Sexton related to claims for fees and disbursements made by CHH which were unpaid as at 15 March 2002.

[282]    Although Ms Sexton’s Certificate was issued on 17 February 2003, she nonetheless certified that, as at 15 March 2002, CHH was entitled to $180,435.30 by way of unpaid costs and disbursements.

[283]    Therefore, as at 15 March 2002, the trustee was lawfully entitled to:

(a)    $98,095.16 on account of his own remuneration which had been earned but not paid as at that date and which was not required to be taxed; and

(b)    $163,477.54, being the amount of legal fees and disbursements ultimately certified by Ms Sexton as due to CHH. This figure is arrived at by taking the amount certified by Ms Sexton in respect of unpaid fees and disbursements (viz $180,435.30) and subtracting from that amount the difference between $105,000, being the amount paid to CHH on 15 March 2002, and the amount of paid costs certified by Ms Sexton (viz $88,042.24).

[284]    Dr Wenkart did not pay any monies to the trustee between 15 March 2002 and 31 October 2002.

[285]    It follows that, as at 31 October 2002, $98,095.16 was due to the trustee on account of his own remuneration and a further sum ultimately quantified at $163,477.54 was due to him on account of CHH’s legal fees and disbursements.

[286]    Subsequently, of course, further amounts fell due from time to time as discussed at [96]–[110] above.

[287]    At 57–58 [80]–[82] of Branson No 2, her Honour placed considerable significance on remarks made by Counsel then appearing for the trustee at a directions hearing before Lindgren J on 21 October 2003. Her Honour relied upon those remarks and other matters in support of a finding that the trustee had agreed to tax all of CHH’s fees and disbursements. Her Honour came to that conclusion notwithstanding the fact that she also concluded (correctly) that Ms Sexton had not, in fact, taxed all of CHH’s fees and disbursements.

[288]    Because we have concluded that, on any view of matters, the amount of $98,095.16 by way of trustee’s remuneration was due to the trustee at all times from 15 March 2002 until quite recently, it is strictly speaking not necessary to address the question of whether the trustee had ever agreed to require CHH to tax all of their costs and disbursements. However, in deference to the careful arguments advanced by Senior Counsel for the trustee, we shall address this point, albeit briefly.

[289]    The orders made by Lindgren J on 21 October 2003 were made by consent. They are set out at [89] above. In our view, it is quite clear that the agreement which the trustee made which is recorded in par 1 of those orders was an agreement to require third party suppliers, other than CHH, to tax their claims for fees and disbursements. With great respect to Branson J, it is not to the point that Counsel for the trustee may have erroneously conveyed to his Honour that there was some other agreement in place as at 21 October 2003 pursuant to which the trustee had already required CHH to tax all of their fees and disbursements. Lindgren J was not led into making any order which he would not otherwise have made. The order which he made simply reflected the actual agreement between the parties. No actionable estoppel arose in favour of Dr Wenkart based upon the content of the remarks made by Counsel for the trustee to Lindgren J on 21 October 2003 or as a result of the conduct of the parties. There was no clear representation made by or on behalf of the trustee that could conceivably operate as the foundation of an estoppel by representation. There was no evidence that Dr Wenkart interpreted any particular statement made by or on behalf of the trustee as a commitment on the part of the trustee to require CHH to tax all of its fees and disbursements whenever incurred whether paid or not nor is there any evidence that Dr Wenkart acted to his detriment by relying upon such a statement. There was no evidence to support an estoppel by convention.

[290]    Nor is it correct to say that the proceedings were thereafter conducted upon the basis that all of the fees and disbursements rendered by CHH would be taxed. This is not what happened and this is not what the parties expected would happen. With great respect to Branson J, we think that her Honour erred when she found that, at all times after 21 October 2003, the proceedings below had been conducted upon the basis that the trustee had agreed to have all of CHH’s Bills of Costs taxed (as to which see 56 [77] of Branson No 2). There was no evidence of any such agreement before her Honour. The only matter relied upon by her Honour to support the finding which she made consisted of the somewhat ambiguous (and inaccurate) remarks of Counsel for the trustee made to Lindgren J on 21 October 2003 to which her Honour referred at 56–58 [77]–[82] of Branson No 2. Those remarks did not justify the finding which her Honour made.

[291]    The trustee has sought leave before us to reopen in order to tender the letter dated 25 January 2002 which we have extracted at [44] above. For reasons which we shall explain below, we think that the trustee should have that leave.

[292]    In respect of Issue 1, we find that both Branson J and Flick J, to the extent that he adopted the conclusions and reasoning of Branson J, erred and that there was no surplus in the hands of the trustee as at 15 March 2002. Rather, the trustee was lawfully entitled to at least $98,095.16 as at that date and remained so entitled continuously up to and including 31 October 2002. In our view, he was also entitled to the additional amount of $163,477.54 on account of CHH’s fees and disbursements as ultimately certified by Ms Sexton.

71    Dr Wenkart has not asked us to reconsider any of the findings made or conclusions reached in the principal judgment other than the decision set out at [346] of the principal judgment. It seems to us that, notwithstanding Dr Wenkart’s description of the present application as raising a “narrow point”, the application, and the submissions made in support of it, constitute an attempt to challenge or, at least, undermine the findings which we made at [266]–[292] of the principal judgment. We are not prepared to allow Dr Wenkart to attack the findings which we made in relation to Issue 1 under the guise of the present reconsideration application.

72    In any event, the prejudice which Dr Wenkart claims he will suffer as a result of the tender of the 25 January 2002 letter is illusory. We have found that he was well aware of all of the relevant details concerning fees and disbursements rendered to Mr Pantzer by Cutler Hughes & Harris (both paid and unpaid) prior to the annulment meeting held on 15 March 2002. He was also well aware that, as at that date, Cutler Hughes & Harris was asserting claims for fees and disbursements which had not yet been rendered to Mr Pantzer even though they related to the period prior to the annulment date. He well appreciated that a significant sum of money had been paid to Cutler Hughes & Harris since the date when the sequestration order was made against his estate and well appreciated that additional significant sums had been rendered and were claimed but remained unpaid as at that date. We have held that Dr Wenkart had no entitlement to compel Mr Pantzer to tax any of the fees and disbursements rendered to Mr Pantzer by Cutler Hughes & Harris up to the date of the annulment meeting (15 March 2002).

73    In any event, given that the full listing of income received and expenses paid by Mr Pantzer in respect of Dr Wenkart’s bankrupt estate was in evidence before Branson J (a listing, we pause to observe, the accuracy and completeness of which was never challenged by Dr Wenkart), given that other correspondence passing between Dr Wenkart’s lawyers and Mr Pantzer’s lawyers in the period from October 2001 to March 2002 was in evidence before her Honour and given that, as we have held, Dr Wenkart had no right to compel Mr Pantzer to tax the Cutler Hughes & Harris bills, in any event, Dr Wenkart would not have been able to do any of the things or take any of the steps which he now says he is unable to do, the unavailability of which is said to constitute prejudice.

74    Dr Wenkart did not make any submission to this Full Court to the effect that he would suffer the prejudice which he now claims he will suffer if the 25 January 2002 letter is tendered in the Appeal and in the Cross-Appeals. Nor are we satisfied that he made any such submission to Branson J at the time that Mr Pantzer sought leave to reopen.

75    For these reasons, we do not accept that we misapprehended the facts or the relevant law or that we failed to address a submission made on behalf of Dr Wenkart which was clearly articulated and which was of substance. We do not propose to reconsider [346] of the principal judgment and will therefore dismiss Dr Wenkart’s Interlocutory Application with costs.

Associate:

Dated:    24 December 2013