FEDERAL COURT OF AUSTRALIA
Wenkart v Pantzer [2005] FCA 1572
BANKRUPTCY – trustee’s entitlement to remuneration and costs – taxation – appeals from decision of taxing officer – where work undertaken post-annulment of bankruptcy – where work undertaken in relation to taxation of costs – where work undertaken in relation to litigation – where work performed by persons other than trustee – whether taxing officer validly appointed – whether form of bills of costs complied with Bankruptcy Regulations 1996.
Bankruptcy Act 1966 (Cth)ss 73, 74, 162 and 167
Federal Court of Australia Act 1976 (Cth) s 43
Bankruptcy Regulations 1996 regs 8.09, 8.10, 8.11 and 8.11A
Federal Court Rules O 62
RP Meagher and WMC Gummow, Jacob’s Law of Trusts in Australia, 6th edn, Butterworths, 1997
Adsett v Berlouis (1992) 37 FCR 201 followed
Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 followed
Doolan v Dare [2005] FCAFC 69cited
Ide v Ide (2004) 184 FLR 44 referred to
Re Ladyman (1981) 38 ALR 631 cited
Schweppes’ Ltd v Archer (1934) 34 SR (NSW) 178 followed
Symes v Holbrook [2005] FCAFC 219referred to
Wenkart v Pantzer (2003) 132 FCR 204cited
Wenkart v Pantzer (No 3) (2004) 135 FCR 422referred to
Wenkart v Pantzer (No 6) [2003] FCA 1210 referred to
Wenkart v Pantzer [2003] FCA 315referred to
Wenkart v Pantzer [2003] FCA 471 referred to
Wily v Fitz-Gibbon [1998] FCA 121 cited
THOMAS RICHARD WENKART v WARREN PANTZER, ANN SEXTON AND INSPECTOR GENERAL IN BANKRUPTCY
NSD 1973 of 2004
NSD 181 of 2005
BRANSON J
8 NOVEMBER 2005
SYDNEY
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IN THE FEDERAL COURT OF AUSTRALIA |
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NEW SOUTH WALES DISTRICT REGISTRY |
NSD 1973 of 2004 NSD 181 of 2005 |
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BETWEEN: |
THOMAS RICHARD WENKART APPLICANT
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AND: |
WARREN PANTZER FIRST RESPONDENT
ANN SEXTON SECOND RESPONDENT
INSPECTOR GENERAL IN BANKRUPTCY THIRD RESPONDENT
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JUDGE: |
BRANSON J |
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DATE: |
8 NOVEMBER 2005 |
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PLACE: |
SYDNEY |
REASONS FOR JUDGMENT
introduction
1 These two proceedings were heard together with evidence in one proceeding being evidence in the other. They each involve a challenge to a certificate of taxation issued by the second respondent (‘Ms Sexton’). Although in each case the challenge is made on several bases, the principal objection to the certificates of taxation is that they allow claims relating to work undertaken after the bankruptcy of the applicant (‘Dr Wenkart’) had been annulled by operation of subs 74(5) of the Bankruptcy Act 1966 (Cth) (‘the Act’). Ms Sexton submitted to the orders of the Court. The third respondent (‘the Inspector General’) assisted the Court with submissions touching on the proper construction of the Act and the Bankruptcy Regulations 1996 (‘the Regulations’).
2 For the reasons set out below I have concluded that each of the certificates of taxation should be set aside.
background
3 Dr Wenkart became bankrupt when his estate was sequestrated by an order made on 28 October 1999. The first respondent (‘Mr Pantzer’) was appointed the trustee in bankruptcy. Dr Wenkart’s bankruptcy was annulled by force of subs 74(5) of the Act on 15 March 2002. On that day Dr Wenkart’s creditors, by special resolution, accepted a proposal made to them pursuant to s 73 of the Act by Dr Wenkart.
4 Dr Wenkart’s bankruptcy has given rise to considerable litigation. Various disputes between Dr Wenkart and Mr Pantzer concerning Mr Pantzer’s entitlements to remuneration, costs, charges and expenses have been litigated in matter NSD 7051 of 2002. Final judgment in matter NSD 7051 of 2002 is presently reserved before me, having been heard, in part, together with these appeals. Various interlocutory orders made in matter NSD 7051 of 2002 are relevant to these appeals.
5 In particular, anticipating the creditors’ possible acceptance of the proposal made to them pursuant to s 73 of the Act by Dr Wenkart, Beaumont J, on 11 March 2002, made the following orders by consent in matter NSD 7051 of 2002:
‘1. Warren Pantzer as Trustee of the estate of Thomas Richard Wenkart may recover his remuneration, costs, charges and expenses to which he is lawfully entitled or may become lawfully entitled from Thomas Richard Wenkart and Thomas Richard Wenkart agrees to pay the same within 28 days of determination of the quantum of the same or at such other time as the parties may agree.
2. Thomas Richard Wenkart forthwith charges the land and improvements in folio identifier G/33817 and known as 47 Union Street, Paddington in favour of Warren Pantzer to secure the amount in paragraph 1.
3. Hapday Holdings Pty Ltd ACN 001 185 253 hereby postpones mortgage 3965299 over the land in paragraph 2 in favour of the interest of Warren Pantzer pursuant to the charge in paragraph 2.
4. The orders and agreement in paragraphs 1, 2 and 3 are only to have effect if the bankruptcy of Thomas Richard Wenkart is annulled pursuant to s74 of the Bankruptcy Act on 15 March 2002.
5. Thomas Richard Wenkart consents to Warren Pantzer lodging a Caveat over the property in paragraph 2 for the purpose of securing the charge in paragraph 2 and Warren Pantzer will upon payment of the remuneration, costs, charges and expenses in paragraph 1 provide a Withdrawal of Caveat forthwith.’
6 In Wenkart v Pantzer [2003] FCA 315, published on 9 April 2003, Beaumont J at [20]‑[21] gave consideration to the above orders and held:
‘The effect of the consent orders (doubtless made with a view to achieving acceptance of the applicant’s s 73 proposal) was to defer the resolution of any dispute as to the amount of the respondent’s remuneration, but upon terms that the respondent would receive security for that amount. The Court sanctioned that arrangement in the form of an order made under the reservation reserved by the concluding words of s 74(6) – “reverts ... on such terms and subject to such conditions ... as the Court orders”.
Given that conclusion, it must follow, in my opinion, that the consent orders were within power and operated to vest in the respondent the charge created by par 2 thereof.’
7 In Wenkart v Pantzer (2003) 132 FCR 204, published on 29 August 2003, the Full Court at [8] observed:
‘Division 2 of Pt VIII of the Bankruptcy Act (comprising ss 161B to 167) deals generally with the remuneration and costs which may be charged against a bankrupt’s estate. Thus, ss 161B and 162 allow the trustee to charge remuneration; ss 163 and 163A regulates [sic] the remuneration, costs and expenses of the official trustee; s 164 deals with the situation where two or more trustees act in succession; s 165 contains prohibitions against the receipt of outside benefits; and finally s 167 deals with the taxation of third party costs. Each of ss 162, 165 and 167 regulate the claims and entitlements of the trustee while he was acting in that capacity in relation to the appellant’s estate. The sections operate by force of the Bankruptcy Act and not because of any agreement between the parties or order of the court. Moreover, lest there be any doubt about the matter, we wish to make it clear that these provisions have effect notwithstanding the annulment of the bankruptcy. It could hardly be supposed that a trustee’s right to remuneration, the manner in which that remuneration is to be determined and the trustee’s right to require a third party’s bill of costs to be taxed is lost upon an annulment.’
8 On 21 October 2003 the Court, constituted by Lindgren J rather than Beaumont J because of the latter’s illness, made the following orders in matter NSD 7051 of 2002:
‘1. In respect of services provided by any person with respect to the estate in bankruptcy of the applicant, whether those services were provided before or after annulment of the applicant’s bankruptcy on 15 March 2002, the respondent by 22 October 2003 require such person to supply a Bill of Costs for such services pursuant to Section 167 of the Bankruptcy Act, 1966(Cth) provided that this order does not extend to legal services provided by Cutler Hughes and Harris.
2. The respondent notify the applicant in writing by 23 October 2003 of his claim for remuneration in respect of services provided after the annulment of the applicant’s bankruptcy on 12 March 2002.’
9 At the time of the making of the above orders the Court noted, amongst other things, that:
‘The applicant concedes that upon completion of taxation of the claims for costs and remuneration referred to in Orders 1 and 2, the amount taxed will be an amount within the following expression within Order 1 of the Orders made by Beaumont J on [11 March 2002] in this proceeding:
“remuneration, costs, charges and expenses to which [the respondent, Warren Pantzer, as trustee of the applicant, Thomas Richard Wenkart] is lawfully entitled or may become lawfully entitled from Thomas Richard Wenkart”.’
10 The reason for the first of the orders made on 21 October 2003 not extending to legal services provided by the firm Cutler Hughes and Harris may be assumed to be that on 6 May 2003 the Court had ruled that Mr Pantzer was lawfully entitled to be reimbursed for certain taxed costs of the firm Cutler Hughes and Harris (see Wenkart v Pantzer [2003] FCA 471).
11 By letter dated 21 October 2003 Mr Pantzer wrote to Dr Wenkart in the following terms:
‘Re: Your Former Bankrupt Estate
Matter No. NSW 5988/99/0
Notice of Claim for Outstanding Remuneration and Disbursements
My claim for outstanding remuneration and disbursements (excluding legal costs) from 16 March 2002 up to and including 21 October 2003 is $127,460.25 (including GST).
I reserve my rights to claim remuneration and disbursements for the period on and after 22 October 2003 in relation to the finalisation of the matters presently before the Court and otherwise in respect of the estate of the former bankrupt.’
12 It is not clear what Mr Pantzer sought to achieve by the last of the two paragraphs above. It was, of course, not open to him, by engaging in correspondence with Dr Wenkart, to alter the effect of orders of this Court.
13 By letter dated 11 November 2003 Dr Wenkart, through his solicitor, gave notice to the Insolvency and Trustee Service of Australia (‘ITSA’) pursuant to subreg 8.09(1) of the Regulations that he was dissatisfied with the amount of Mr Pantzer’s claim and requested that it be taxed by a taxing officer. By another letter of that date Dr Wenkart’s solicitors advised Mr Pantzer of the request for taxation and added:
‘However, we dispute that the claim has been validly made and believe that our client’s request for taxation is not required however [sic] as a matter of caution Dr Wenkart has requested the taxation within the time period allowed in any event [sic]. Our client reserves his rights.’
14 The instrument in writing by which Ms Sexton was purportedly appointed as a taxing officer in respect of Mr Pantzer’s bill of costs is in the following form:
‘Bankruptcy Act 1966
APPOINTMENT OF TAXING OFFICER
I, Giulia Inga, Official Receiver for the Bankruptcy District “the State of New South Wales” pursuant to delegations by Terrance Leo Gallagher, Inspector‑General in Bankruptcy, under section 11(4) of the Bankruptcy Act 1966 appoint Ann Sexton, Legal Costs Consultant and former Deputy Federal Court Registrar to be the taxing officer and tax the bill of costs of Mr Warren Pantzer, Trustee of the bankrupt estate of Thomas Richard Wenkart, bankruptcy number NSW 5988/99/0 in respect of his remuneration and expenses.
Dated: 3 September 2004
[signed]
Giulia Inga
Official Receiver’
15 On 13 December 2004 Ms Sexton issued a certificate in the following form:
‘Certificate of Taxation
I do hereby certify that I have taxed and allowed the remuneration, disbursements and expenses claimed by Warren Pantzer, the former trustee of the estate of Thomas Richard Wenkart (NSW5988/99/0) in the amount of $169,955.94 for the period 15 March 2002 to 21 October 2003, comprised of the following amounts:-
1. Claim for remuneration of Warren Pantzer
(Items 1-822 inclusive in the claim) ‑ $83,219.82
2. Claim for disbursements and expenses (items 823‑907 inclusive) ‑ $2,562.02
3. Solicitor/client bill of costs of Sally Nash & Co for work undertaken on behalf of Warren Pantzer in Federal Court proceeding N7501 of 2002 ‑ $57,613.09
4. Solicitor/client bill of costs of Sally Nash & Co for work undertaken on behalf of Warren Pantzer in Federal Court proceedings (appeal) N633 of 2003 ‑ $26,561.01
Date: 13‑12‑04 [signed]
ANN SEXTON
TAXING OFFICER’
16 By a letter of the same date, a copy of which was provided to Dr Wenkart, Ms Sexton advised Mr Pantzer how the figures in the certificate of taxation were calculated.
17 The first of these proceedings, which is an appeal from Ms Sexton’s decision of 13 December 2004, was instituted on 24 December 2004 (NSD 1973 of 2004).
18 In the meantime, on 20 December 2004 Ms Sexton was again purportedly appointed as a taxing officer. The instrument in writing is in the following form:
‘Bankruptcy Act 1966
APPOINTMENT OF TAXING OFFICER
I, Giulia Inga, Official Receiver for the Bankruptcy District “the State of New South Wales” pursuant to delegations by Terrance Leo Gallagher, Inspector‑General in Bankruptcy, under sub-section 11(4) of the Bankruptcy Act 1966 (the Act) appoint Ann Sexton, Legal Costs Consultant and former Deputy Federal Court Registrar to be taxing officer and tax the solicitor/client bill of costs of Sally Nash & Co relating to the work undertaken in the High Court proceedings on behalf of Warren Pantzer, the former trustee of the estate of Thomas Richard Wenkart NSW5988/99/0 and the fees of J.T. Johnson, M. Aldridge & P. Walsh of counsel pursuant to section 167 of the Act.
Dated: 20 December 2004
[signed]
Giulia Inga
Official Receiver’
19 In a letter of the same date (ie 20 December 2004) addressed to Mr Pantzer, and copied to the solicitors for Dr Wenkart and Mr Pantzer respectively, Ms Sexton wrote:
‘I refer to your request of 17 December 2004 and enclose a copy of a further appointment allowing me to undertake the taxation of the solicitor/client bill of costs of Sally Nash & Co relevant to the High Court proceedings and the fees of counsel.
The taxation will proceed on 29 December 2004 and a Certificate of Taxation will issue shortly afterwards. I have received objections to Sally Nash’s bill of costs from Mr Gorczyca but no objections to counsels’ fees.’
20 On 12 January 2005 Ms Sexton issued a certificate of taxation allowing the amount of $2 289.70 for the solicitor/client costs of the firm Sally Nash & Co for work undertaken on behalf of Mr Pantzer in High Court proceeding S 517 of 2003. The High Court proceeding was an application for special leave to appeal from the judgment of the Full Court in Wenkart v Pantzer (2003) 132 FCR 204. The certificate additionally allowed eleven memoranda of fees of barristers instructed at various times to represent Mr Pantzer. The total amount allowed by the certificate was $33 295.95.
21 The second of these proceedings, which is an appeal from Ms Sexton’s decision of 12 January 2005, was instituted on 9 February 2005 (NSD 181 of 2005).
issues
22 Mr Pantzer accepts that, because Dr Wenkart’s bankruptcy has been annulled, his (Mr Pantzer’s) only entitlement to recover amounts by way of remuneration, costs, charges and expenses in respect of his administration of Dr Wenkart’s bankrupt estate is an entitlement to recover such amounts from Dr Wenkart pursuant to the orders made by Beaumont J on 11 March 2002. For this reason, the first issue raised by these proceedings is the meaning of the phase ‘[Mr Pantzer’s] remuneration, costs, charges and expenses to which he is lawfully entitled or may become lawfully entitled from Thomas Richard Wenkart’ in order 1 of the consent orders made on 11 March 2002 (see [5] above). In this regard the parties made submissions concerning:
(1) the extent, if any, of the entitlement under the Act of Mr Pantzer as trustee, or former trustee, of the estate of Dr Wenkart to remuneration, costs, charges and expenses related to work done after the annulment of Dr Wenkart’s bankruptcy;
(2) whether Mr Pantzer was entitled to be remunerated under the Act for work undertaken by him in relation to the taxation of his costs;
(3) whether the bills of costs submitted by Mr Pantzer to Ms Sexton included claims for ‘payment in respect of the performance by another person of the ordinary duties that are required by [the] Act to be performed by the trustee’ within the meaning of subs 162(6) of the Act; and
(4) whether the legal costs, disbursements and expenses of Mr Pantzer incurred in respect of legal proceedings in this Court or the High Court not directly involving the administration of the bankrupt estate of Dr Wenkart:
a. may be taxed other than under O 62 of the Federal Court Rules and the equivalent order in the then operative High Court Rules; and
b. are recoverable under the Act.
23 I consider the intended meaning of the consent order made on 11 March 2002 at [37]-[38] before turning to consider separately the remuneration to which Mr Pantzer is entitled under the Act at [39]-[71] and the costs, charges and expenses in respect of which Mr Pantzer is entitled to be indemnified at [72]-[79].
24 The second issue raised by the proceedings is whether the effect of the orders made by Lindgren J on 21 October 2003 is to limit the amount that Mr Pantzer may claim in reliance on order 1 of the consent orders made by Beaumont J on 11 March 2002. I consider this issue at [80]-[85].
25 The third issue raised by the proceedings concerns the validity of the appointments of Ms Sexton as a taxing officer, and in particular, whether the appointments were authorised by subs 167(9) of the Act. I consider this issue at [86]-[92].
26 The fourth issue raised by the proceedings is whether the form of the bills of costs submitted by Mr Pantzer to Ms Sexton satisfied the requirements of the Regulations. I consider this issue at [93]-[95].
27 Further, an issue is raised by the applications of whether, by reason of matters pleaded in matter NSD 7051 of 2002, upon a true and proper accounting neither Mr Pantzer, nor any person who provided services to him in relation to the bankrupt estate of Dr Wenkart, has any present legal entitlement to payment or reimbursement, as the case may be, in respect of the administration of the bankrupt estate. There is considerable overlap between the issues raised for consideration in these proceedings and the issues raised for determination in matter NSD 7051 of 2002. I have been obliged to reach a concluded view on some of those issues for the purpose of determining these proceedings. However, I am inclined to think that the remaining issues should be determined in the context of that matter. The parties will have an opportunity to place submissions before the Court on this question before final orders are made in these proceedings.
statutory regime
28 Before considering the issues identified above it is necessary to take notice of the statutory regime.
29 Section 73 of the Act authorises a bankrupt to enter into a composition or arrangement with his or her creditors by formulating a proposal in writing which creditors may accept by special resolution. Subsection 74(5) provides:
‘Upon the passing of a special resolution at a meeting of creditors of a bankrupt under subsection 73(4), the bankruptcy is annulled, by force of this subsection, on the date on which the special resolution was passed.’
30 Section 162 of the Act contains the following provisions concerning the remuneration of the trustee generally:
‘(1) … the remuneration of the trustee of the estate of a bankrupt may be fixed, from time to time, by resolution of the creditors or, if the creditors so resolve, by the committee of inspection.
…
(4) Where the remuneration of the trustee is not fixed by the creditors or the committee of inspection, the trustee is to be remunerated as prescribed by the regulations.
…
(6) Where a trustee receives remuneration for his or her services, a payment in respect of the performance by another person of the ordinary duties that are required by this Act to be performed by the trustee shall not be allowed in his or her accounts unless the payment was authorized by resolution of the creditors or by the committee of inspection.’
31 Section 167 of the Act is concerned with the taxation of costs. It relevantly provides:
‘(1) The trustee of a bankrupt’s estate may require a bill of costs for services provided by a person in relation to the administration of the estate to be taxed by a taxing officer. The trustee may make the requirement on the trustee’s own initiative, or at the request of the bankrupt or a creditor.
(3) A person whose bill of costs is required to be taxed may deliver for taxation a bill containing detailed items or a bill for a gross sum.
…
(7) If a person so requested to deliver his or her bill fails to do so within 28 days after receipt of the request, the trustee shall declare and distribute the dividend without regard to any claim of that person in respect of the matters as to which the bill was requested and in that case neither the trustee nor the estate of the bankrupt is under any further liability in respect of the claim.
(8) A person interested may appeal to the Court from a decision of the taxing officer in allowing or disallowing a bill of costs or bill of charges or an item in such a bill.
(9) In this section:
taxing officer means a person appointed by the Inspector General for the purposes of this section.’
32 Regulation 1.03 of the Regulations contains a number of definitions which have application for the purpose of the Regulations unless the contrary intention appears. One of those definitions is:
‘taxing officer has the same meaning as in section 167 of the Act.’
33 Regulations 8.09, 8.10 and 8.11A of the Regulations are concerned with the taxation of a trustee’s remuneration and costs. They provide:
‘8.09 Taxation of trustee’s remuneration and costs — preliminary
(1) Where the trustee of the estate of a bankrupt claims remuneration under section 162 of the Act, the bankrupt or a creditor who is dissatisfied with the amount of the claim may, by notice in writing lodged within 28 days of being notified in writing or becoming aware of the amount of the claim, request a taxing officer to tax the claim.
(2) The taxing officer must, promptly after receiving a request in accordance with subregulation (1), give notice in writing to the trustee to lodge a detailed bill of costs, in accordance with regulation 8.10, with the taxing officer within 28 days or such further period as the taxing officer may, in writing, allow.
(3) On receiving the bill of costs, the taxing officer must give notice in writing of the date, time and place for the taxation, at least 5 days before the taxation, to the trustee and the person requesting the taxation.
(4) Subject to subregulation (5), if the trustee fails to comply with a notice given under subregulation (2):
(a) the trustee forfeits his or her right to disbursements and expenses; and
(b) any amount that, apart from this subregulation, would have been applied as the trustee’s remuneration is to be applied for the benefit of the creditors.
(5) A trustee who is aggrieved by the operation of subregulation (4) in respect of his or her claim, or intended claim, for costs may apply to the Court for relief, and the Court may:
(a) grant such relief; and
(b) grant the relief on such terms, if any;
as it thinks fit.
8.10 Bill of costs
(1) A bill of costs required under subsection 167(1) of the Act or regulation 8.09 must:
(a) be typed or printed on only one side of each sheet of paper; and
(b) have a margin on the left-hand side of each sheet of paper; and
(c) show separately the trustee’s:
(i) professional fees; and
(ii) disbursements and expenses; and
(d) in the case of a detailed bill of costs:
(i) number each item consecutively; and
(ii) in respect of each item — specify the date or dates on which the work referred to in the item was done, or the disbursement or expenditure referred to in the item was made, as the case may require.
(2) If a bill of costs complies substantially, but not strictly, with subregulation (1), it is taken, for the purposes of subregulation (1), to be duly lodged. However, the taxing officer may require trustee to rectify the bill of costs in accordance with any direction that the taxing officer thinks fit, and if the trustee defaults the bill ceases to be so taken.
…
8.11A Costs of taxation
(1) If taxation under regulation 8.09 results in a reduction of at least 15% in the amount of a claim for remuneration, the trustee must meet the costs of the taxation.
(2) Except in a case mentioned in subregulation (1), the person who asks for the taxation under regulation 8.09 must meet the costs of the taxation.’
governing principles
34 In my view, the principles to be applied when an appeal is brought to the Court under subs 167(8) of the Act are analogous to those identified by Jordan CJ, with the concurrence of Harvey CJ in Eq and Street J, in Schweppes’ Ltd v Archer (1934) 34 SR (NSW) 178. These principles were approved by Kitto J in Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 (‘Australian Coal and Shale’) at 628. Jordan CJ in Schweppes’ Ltd v Archer stated:
‘In appeals as to costs, the principles to be applied are these. The Court will always review a decision of a Taxing Officer where it is contended that he has proceeded upon a wrong principle, for the purpose of determining the principle which should be applied; and an error in principle may occur both in determining whether an item should be allowed and in determining how much should be allowed. Where no principle is involved, and the question is, whether the Taxing Officer has correctly exercised a discretion which he possesses and is purporting to exercise, the Court is reluctant to interfere. It has undoubted jurisdiction to review the Taxing Officer’s decision even where an exercise of discretion only is involved, and will do so freely on a proper case, using its own knowledge of the circumstances … but it will in general interfere only where the discretion appears not to have been exercised at all, or to have been exercised in a manner which is manifestly wrong; and where the question is one of amount only, will do so only in an extreme case.’ (citations omitted)
35 I note that in Ide v Ide (2004) 184 FLR 44 at [39] Young CJ in Eq observed with respect to receivers’ remuneration:
‘… the court constituted by a judge, never considers a review of quantum, but only matters of principle.’
One of the two authorities cited by his Honour in support of his above observation was Australian Coal and Shale. It is not necessary for me to reach a view on whether his Honour expressed the position too strongly. It is sufficient to note that it will rarely, if ever, be appropriate for the Court to review a decision of a taxing officer on a line by line basis.
the consent orders dated 11 march 2002
36 I now turn to consider the first of the issues raised in these proceedings.
37 The terms of the consent orders made by Beaumont J on 11 March 2002 are set out in [5] above. As previously mentioned, the consent orders were made in the context that Dr Wenkart desired to make a proposal to his creditors pursuant to s 73 of the Act. The orders were made, as Beaumont J subsequently noted (see [6] above), pursuant to the power of the Court, recognised by s 74(6) of the Act, to impose terms and conditions on the reversion to the bankrupt of his or her interest in the property still vested in the trustee as at the annulment of the bankruptcy.
38 Having regard to the context in which the orders of 11 March 2002 were made, the meaning of order 1 is, in my view, clear. The ‘remuneration, costs, charges and expenses to which [Mr Pantzer] is lawfully entitled or may become lawfully entitled’ within the meaning of order 1 is:
(a) the remuneration to which Mr Pantzer was then entitled, or would thereafter become entitled, in respect of work properly undertaken in carrying out his duties under the Act; and
(b) the costs, charges and expenses in respect of which Mr Pantzer, in his capacity of trustee, or former trustee, of Dr Wenkart’s estate, was then entitled to be indemnified, or would thereafter become entitled to be indemnified.
I consider specific submissions relating to (a) and (b) above in the following sections.
remuneration to which Mr pantzer is entitled under the act
Generally
39 As the Full Court pointed out in Adsett v Berlouis (1992) 37 FCR 201 at 210 and recently reiterated in Doolan v Dare [2005] FCAFC 69 at [19], the Act assumes the existence of a right in a trustee in bankruptcy to be remunerated where there is no prior agreement by the trustee to act gratuitously (see, for example, par 109(1)(a) of the Act). Section 162 provides the mechanism for fixing the quantum of the trustee’s remuneration. In this case Mr Pantzer is to be remunerated as prescribed by the Regulations (see subs 162(4) and Wenkart v Pantzer (No 3) (2004) 135 FCR 422 at [59]). Regulation 8.08 prescribes, in effect, a rate of remuneration being 85% of the scale of charges set out in the Guide to Hourly Rates published by the Insolvency Practitioners Association of Australia.
Work Undertaken Post Annulment
40 Dr Wenkart contends that Mr Pantzer is not entitled to be remunerated under the Act in respect of anything done by him after the time at which Dr Wenkart’s bankruptcy was annulled by force of subs 74(5) of the Act. Dr Wenkart’s submission is based on the contention that nothing done by Mr Pantzer after the annulment of Dr Wenkart’s bankruptcy was done in his capacity as trustee of Dr Wenkart’s estate.
41 Mr Pantzer contends that he is entitled to be remunerated under the Act for the work undertaken by him in administering Dr Wenkart’s estate and for all work referable to the proper determination, and as I understand it recovery, of his remuneration, costs, charges and expenses as trustee of Dr Wenkart’s estate.
42 The Inspector General placed submissions before the Court in support of a position somewhere between those taken by Dr Wenkart and Mr Pantzer respectively.
43 It seems clear that the right of a person who is appointed a trustee in bankruptcy (other than as a volunteer) to be remunerated under the Act is a right to be remunerated in respect of work properly undertaken in carrying out his or her duties under the Act. In Adsett v Berlouis at 212 the Full Court described work properly undertaken by a trustee as work:
‘reasonably and bona fide undertaken for the purpose of administering the estate or performing any public duty imposed by the Act; conformably with the trustee’s duty to perform the work with reasonably care and skill and in an efficient and economical way.’
44 Work of the kind described in Adsett v Berlouis will ordinarily be undertaken during the course of the bankruptcy. However, where, as here, a bankruptcy is annulled by force of subs 74(5), some duties will necessarily be performed after the annulment of the bankruptcy. Those duties will include the duty of the trustee to give written notice of the annulment to the Official Receiver (subs 74(5A)) and the duty implicit in subss 74(6) and (7) to take necessary steps to cause property vested in the trustee at the date of the annulment to be transmitted to the bankrupt or such other person as the Court appoints.
45 The submission advanced by Dr Wenkart that nothing done by Mr Pantzer after the annulment of Dr Wenkart’s bankruptcy was done in his capacity as trustee of Dr Wenkart’s estate may in one sense be accepted. However, to the extent that the Act imposes duties on a person who was the trustee of a bankrupt’s estate immediately before the bankruptcy was annulled, that person (ie the former trustee) has an entitlement to be remunerated in respect of work undertaken in carrying out those duties. It is no doubt for this reason that Beaumont J and Lindgren J formulated the orders made by them respectively (see [5] and [8] above) in terms which recognise an entitlement in Mr Pantzer to be remunerated in respect of work undertaken after the annulment of Dr Wenkart’s bankruptcy.
46 Nothing said by the Full Court in Wenkart v Pantzer (2003) 132 FCR 204 suggests to the contrary of the above conclusion. In that case their Honours at [8] observed:
‘Each of ss 162, 165 and 167 regulate the claims and entitlements of the trustee while he was acting in that capacity in relation to the appellant’s estate … lest there be any doubt about the matter, we wish to make it clear that these provisions have effect notwithstanding the annulment of the bankruptcy. It could hardly be supposed that a trustee’s right to remuneration, the manner in which that remuneration is to be determined and the trustee’s right to require a third party’s bill of costs to be taxed is lost upon an annulment.’ (emphasis added)
47 Dr Wenkart argued, on the basis of the highlighted words in the above passage from the judgment of the Full Court, that their Honours did not intend their observations to reach to claims and entitlements of a trustee in respect of work required by the Act to be undertaken after the annulment of the bankruptcy. The preferable view, I consider, is that their Honours’ observations are to be understood on the basis that the performance by a trustee of statutory duties which the Act requires or allows to be performed by the trustee after the annulment of the bankruptcy are performed by the trustee ‘while acting in that capacity’.
Work Undertaken in relation to Taxation of Costs
48 Dr Wenkart also argued in the alternative, as I understand it, that Mr Pantzer was not entitled to be remunerated under the Act in respect of work undertaken by him as a result of receiving a notice in writing under subreg 8.09(2) to lodge, for the purpose of taxation, a detailed bill of costs in accordance with reg 8.10. Unless there is a legislative provision to the contrary, the test to be applied is whether the work in question was work properly undertaken by Mr Pantzer in his capacity as trustee of Dr Wenkart’s estate (see [43] above).
49 I did not receive submissions on whether reg 8.11A is a legislative provision to the contrary nor did I receive submissions on the meaning of the phrase ‘the costs of the taxation’ in reg 8.11A. Nonetheless it is necessary for me to determine these questions.
50 Regulation 8.11(5) places the immediate obligation to pay the fee for taxation upon the person requesting the taxation. Regulation 8.11A, which is set out in [33] above, is drawn in terms that suggest that it is not intended to deal only with the issue of ultimate liability to meet the fee for taxation. I conclude that ‘the costs of the taxation’ within the meaning of reg 8.11A extend beyond the cost involved in paying the fee for taxation and include also the costs of preparing the detailed bill of costs and the proper costs, if any, of attending the hearing of the taxation.
51 The effect of reg 8.11A is thus that, if a taxation under reg 8.09 results in a reduction of at least 15% in the amount of a trustee’s claim for remuneration, the trustee will be required to meet personally the costs of the taxation. That is, he or she, will be required:
(a) to reimburse the person who asked for the taxation the fee for taxation; and
(b) refrain from claiming remuneration or costs in respect of work undertaken by the trustee in respect of the taxation (including in respect of the preparation of the detailed bill of costs and attendance at the hearing of the taxation).
52 It is not necessary on the present applications for me to give consideration to whether the regulation may have any wider impact where taxation results in a reduction of at least 15% in the amount of the trustee’s claim for remuneration.
53 If the taxation does not result in a reduction of at least 15% in the amount of the trustee’s claim for remuneration, the person who asked for the taxation is unable to seek reimbursement from the trustee in respect of the fee for taxation. Additionally, in my view, in such a case the trustee will be entitled to recover under the Act remuneration and costs in respect to the work properly undertaken by him or her in relation to the taxation including the preparation of the detailed bill of costs.
54 I conclude that for present purposes reg 8.11A is a provision that governs the respective rights and obligations of Dr Wenkart and Mr Pantzer in respect of the work undertaken by Mr Pantzer as a result of being required by Dr Wenkart to lodge a detailed bill of costs for taxation.
Work Undertaken in relation to Ligitation
55 I accept the submission of the Inspector General that a trustee is not entitled to receive remuneration under the Act in respect of litigation undertaken for his or her own benefit rather than for the purpose of administering the estate of the bankrupt (seeRP Meagher and WMC Gummow, Jacob’s Law of Trusts in Australia, 6th edn, Butterworths, 1997, pp 635-636). However, the question of whether any particular litigation was undertaken for a trustee’s personal benefit and not for the purpose of administering the bankrupt estate will not always be easy to answer.
56 It appears that the litigation in respect of which Mr Pantzer claimed remuneration in the bill of costs which became the subject matter of the certificate of taxation issued by Ms Sexton on 15 December 2004 was litigation in matter NSD 7051 of 2002. This matter was initiated by an informal written application dated 15 February 2002 made to Beaumont J by Dr Wenkart. By that application Dr Wenkart sought an order requiring Mr Pantzer to call a meeting of Dr Wenkart’s creditors pursuant to s 73 of the Act. On 11 March 2002 Mr Pantzer filed a notice of motion in the same matter seeking orders protecting his position with respect to remuneration and the right to be indemnified out of Dr Wenkart’s estate in respect of costs, charges and expenses properly incurred by him as trustee of Dr Wenkart’s estate. On 11 March 2002 Beaumont J made the consent orders set out in [5] above. On 31 October 2002 Mr Pantzer filed a further notice of motion in matter NSD 7051 of 2002 seeking orders in aid of the consent orders of 11 March 2002. Lindgren J subsequently ordered that this notice of motion be deemed to be a cross‑claim in matter NSD 7051 of 2002.
57 Subsequently Beaumont J published at least five interlocutory judgments and Lindgren J published three interlocutory judgments in matter NSD 7051 of 2002. As mentioned above, final judgment in matter NSD 7051 of 2002 is presently reserved before me.
58 The consent orders made by Beaumont J on 11 March 2002 are silent on the issue of costs. It is therefore necessary for me to form a view on whether the work undertaken by Mr Pantzer in response to the informal application dated 15 February 2002 (which Beaumont J treated as an initiating process), but prior to the making of the consent orders, was work undertaken by Mr Pantzer for his own benefit or for the purpose of administering the estate of Dr Wenkart.
59 The provision now contained in subs 73(2B) of the Act was not operative as at 11 March 2002. Subsection 73(2B) allows a trustee to refuse to call a meeting to consider a proposal for a composition or scheme of arrangement if the proposal does not make adequate provision for payment to the trustee of accrued fees. However, the Act cannot be understood to have envisaged that annulment of a bankruptcy would terminate a trustee’s right to remuneration and costs in respect of work properly undertaken in the administration of the estate but for which the trustee had not, as at the date of the annulment, been paid (see [7] above). For Dr Wenkart’s proposal to be considered properly by his creditors it was thus necessary for them to know the extent, if any, of the trustee’s right to claim remuneration and costs from Dr Wenkart’s estate. For this reason it seems to me that the work properly undertaken by Mr Pantzer which led to the creditors being able to vote on Dr Wenkart’s proposal with knowledge of the means of payment of the remuneration and costs to which Mr Pantzer was, or would become, lawfully entitled was work undertaken for the purpose of administering Dr Wenkart’s estate.
60 I conclude that Mr Pantzer is lawfully entitled to remuneration in respect of work properly undertaken by him in respect of the litigation which resulted in the making by Beaumont J on 11 March 2002 of the consent orders referred to above.
61 Work undertaken by Mr Pantzer in matter NSD 7051 of 2002 after 11 March 2002 appears to have been principally, if not entirely, referable to the notice of motion deemed by Lindgren J to constitute a cross‑claim in the proceeding. In effect the matter has become the litigation vehicle by which Mr Pantzer has sought to obtain the benefit of the rights vested in him by the consent orders of 11 March 2002. Work undertaken by Mr Pantzer in relation to the Full Court appeal from interlocutory judgments delivered in matter NSD 7051 of 2002 and the application for special leave to appeal from the judgment of the Full Court in High Court proceeding S 517 of 2003 was similarly, it seems, related to Mr Pantzer’s efforts to obtain the benefit of the rights vested in him by the consent orders of 11 March 2002.
62 In my view, the litigation which Mr Pantzer has undertaken in an endeavour to obtain the benefit of the rights vested in him by the consent orders of 11 March 2002, and to enforce the charge referred to in those orders, has been litigation undertaken for his own benefit rather than for the purpose of administering the estate of Dr Wenkart.
63 It seems to me that the above view finds some support in Symes v Holbrook [2005] FCAFC 219 at [57]‑[59]. In that case the respondent, the former trustee in bankruptcy of the appellant’s estate, had instituted proceedings in the Federal Magistrates Court seeking payment of such costs, charges and expenses as were recoverable by him as trustee of the bankrupt estate, whether incurred before or after the annulment of the bankruptcy, and an order for the sale of the appellant’s home with the proceeds to be applied to pay the amounts due to the respondent. In allowing an appeal from an order made in the Federal Magistrates Court striking out the appellant’s points of defence and counter claim, the Full Court ordered the respondent personally to pay the appellant’s costs of the appeal and of the proceeding below. I infer that this costs order was made in reliance on s 43 of the Federal Court of Australia Act 1976 (Cth) (‘the Federal Court Act’) and O 62 of the Federal Court Rules. Reliance on s 43 and O 62 of the Federal Court Rules, rather than the Act, suggests that the Full Court did not regard the respondent’s conduct in respect of the appeal and the proceeding at first instance as conduct undertaken in his capacity as trustee.
64 Further support for the above view is, I consider, found in the costs orders made by the Full Court in Wenkart v Pantzer (2003) 132 FCR 204, by Beaumont J in Wenkart v Pantzer [2003] FCA 315, and by Lindgren J in Wenkart v Pantzer (No 6) [2003] FCA 1210 and Wenkart v Pantzer (No 3) (2004) 135 FCR 422. These costs orders were made against Dr Wenkart personally again in apparent reliance on s 43 of the Federal Court Actand O 62 of the Federal Court Rules. They constitute judgment debts arising after the annulment of Dr Wenkart’s bankruptcy. No order was made, or it seems sought, that Mr Pantzer’s costs be treated as costs in Dr Wenkart’s bankruptcy or otherwise as costs payable to Mr Pantzer as trustee of Dr Wenkart’s estate.
65 Under the costs orders referred to above Mr Pantzer is entitled to his ‘taxed costs’ within the meaning of O 62 r 4 of the Federal Court Rules. A taxing officer appointed for the purposes of s 167 of the Act is not by that appointment authorised to conduct a taxation under O 62 of the Federal Court Rules. Unless the Court otherwise orders, Mr Pantzer is not entitled to tax his bills of costs in respect of interlocutory proceedings in matter NSD 7051 of 2002 until the principal proceeding is concluded (O 62 r 3(3)).
66 The parties’ conduct in relation to High Court proceeding S 517 of 2003 similarly supports the view that the litigation undertaken by Mr Pantzer to enforce the rights vested in him by the consent orders of 11 March 2002 was pursued for his own benefit and not in his capacity as trustee administering Dr Wenkart’s estate. In a letter dated 1 September 2004, following Dr Wenkart’s discontinuance of the application for special leave to appeal, the solicitors for Mr Pantzer sought costs pursuant to O 69A r 12(1) of the then operative High Court Rules. Mr Pantzer’s recourse to his entitlement to costs under the High Court Rules, rather than to his entitlement to be indemnified for costs properly incurred in his capacity as trustee, suggests acceptance of the position that the work undertaken by him in relation to the High Court litigation was work undertaken for his own benefit.
Work Performed by Others
67 Dr Wenkart argued that the bills of costs submitted by Mr Pantzer for taxation by Ms Sexton included claims for payment in respect of the performance by another person of the ordinary duties that the Act requires to be performed by the trustee. Dr Wenkart submitted that subs 162(6) of the Act (see [30] above) precludes such a claim unless ‘the payment was authorised by resolution of the creditors or by the committee of inspection’.
68 In Wily v Fitz-Gibbon [1998] FCA 121 Hill J commented on a trustee’s ability to delegate and the intended operation of subs 162(6):
‘... s 134(1) of the Bankruptcy Act which lists the powers exercisable by the Trustee refers in s 134(1)(i) to the trustee obtaining, inter alia, such "assistance" as he thinks desirable relating to the administration of the estate or to the conduct or affairs of the bankrupt. Having regard to the impracticability of a trustee in bankruptcy being required to take every step in the administration personally, s 134(1)(i) should not be given a narrow construction having regard to the nature of the powers vested in the trustee and the circumstances of the present case involving absence of the trustee from Australia: O´Reilly v The Commissioners of the State Bank of Victoria (1983) 153 CLR 1 at 11.
The view that delegation is permissible is reinforced by s 162(6) which is concerned to disallow a payment in respect of duties performed by another when the trustee has received remuneration for his services, but subject to a resolution of creditors or the committee of inspection authorising the charges.’
69 I agree with his Honour that the intended purpose of subs 162(6) of the Act is principally to prevent multiple claims being made against an estate in respect of the same work. Thus, where a trustee receives remuneration for his or her services (ie in respect of the ordinary duties required to be performed under the Act) the authorisation of creditors is required before the trustee can claim in his or her accounts a payment in respect of the performance by another person of those same duties. So, for example, if the remuneration of a trustee is fixed under subs 162(2) as a commission upon moneys received by the trustee, subs 162(6) will operate to prevent the trustee from receiving that commission and also receiving payment in respect of the performance by another person of the ordinary duties required by the Act to be performed by the trustee.
70 Subsection 162(6) does not operate, in my view, to prevent a trustee whose remuneration is fixed, for example, on a time-spent basis, from causing some of the ordinary duties required by the Act to be performed by the trustee to be undertaken, in whole or in part, by persons under the trustee’s supervision and control. If the subsection were to so operate it could be expected significantly to increase the costs of the administration of estates by rendering it impractical for a trustee to instruct less highly remunerated personnel to undertake aspects of the trustee’s duties under the trustee’s supervision.
71 I conclude that subs 162(6) does not operate to require a taxing officer to disallow claims for remuneration by Mr Pantzer where the ordinary duties required by the Act to be performed by the trustee were performed by a person acting on behalf of Mr Pantzer and under his supervision and control. This view is consistent with the view expressed by Rogerson J in Re Ladyman (1981) 38 ALR 631 at 644 that a trustee can claim to be reimbursed for the cost of services rendered by persons employed exclusively by him or her. I also note that the Guide to Hourly Rates published by the Insolvency Practitioners Association of Australia, which is recognised by reg 8.08, assumes that work will be undertaken by persons other than the trustee himself or herself.
EXTENT OF MR PANTZER’S ENTITLEMENT TO an INDEMNITY
72 In Wenkart v Pantzer (No 3) (2004) 135 FCR 422 at [57] Lindgren J observed:
‘A trustee in bankruptcy, like any other trustee, is entitled under general law principles to an indemnity out of the trust estate in respect of all costs, charges and expenses properly incurred by the trustee.’ (citations omitted)
73 The issue for present determination is the extent of the costs, charges and expenses properly incurred by Mr Pantzer as trustee (or former trustee) of Dr Wenkart’s estate.
74 Dr Wenkart contends that no costs, charges or expenses incurred by Mr Pantzer after the date on which Dr Wenkart’s bankruptcy was annulled were properly incurred by Mr Pantzer as trustee of Dr Wenkart’s estate. In particular, Dr Wenkart contends that the firm Sally Nash & Co was retained by Mr Pantzer for the purpose of advising him personally and securing his (personal) interest in his then unquantified claims for remuneration and other entitlements having regard to the anticipated annulment of Dr Wenkart’s bankruptcy.
75 In written submissions filed on his behalf Mr Pantzer submitted:
‘10. All of the work performed by Mr Pantzer or by the third‑party service providers was work referable to the proper determination of remuneration and costs charges and expenses incurred by Mr Pantzer during the period of the bankruptcy of Dr Wenkart prior to the date of annulment or referrable to complaints or allegations made by or on behalf of Dr Wenkart concerning conduct of Mr Pantzer during such period for the provision of an accounting in relation to receive the payments during that period.
12. ....
13. It is submitted that all those costs are referable to the performance of duties and the recovery of remuneration and costs charges and expenses during the period of the bankruptcy for which Mr Pantzer is entitled to an indemnity according to ordinary trust principles and or the terms of the Order made on 15 March 2002 also the subject of the concession made on 23 October 2003.’ (footnote omitted)
76 Although it appears that words may have been omitted from the final lines of par 10 above, or alternatively that the paragraph is affected by a drafting error, the signatory to the written submissions did not take up an opportunity provided to him to clarify the intended wording of the paragraph.
77 For the reasons given above in respect of the remuneration to which Mr Pantzer is entitled under the Act, I reject the contention that no costs, charges and expenses incurred by Mr Pantzer after the date on which Dr Wenkart’s bankruptcy was annulled were properly incurred by Mr Pantzer as trustee of Dr Wenkart’s estate.
78 As mentioned above, the appropriate test is whether the costs, charges and expenses were properly incurred by Mr Pantzer as trustee (or former trustee) of Dr Wenkart’s estate. The costs, charges and expenses will have been properly incurred by Mr Pantzer as trustee of Dr Wenkart’s estate provided that they were reasonably and bona fide incurred for the purpose of administering the estate or performing a public duty imposed by the Act, conformably with the trustee’s duty to perform his duties with reasonable care and skill and in an efficient and economical way (see Adsett v Berlouis at 212). This is in substance the same test that determines the remuneration to which Mr Pantzer is entitled under the Act.
79 I have given general consideration above to the question of Mr Pantzer’s entitlement under the Act to remuneration in respect of work undertaken by him in respect of litigation concerning Dr Wenkart’s bankruptcy. Mr Pantzer’s entitlement to be indemnified in respect of the costs of third‑party service providers, such as solicitors and barristers, in respect of legal advice or representation concerning Dr Wenkart’s bankruptcy will be co‑extensive with his right to be remunerated in respect of his own work in respect of the same matters.
the orders dated 21 October 2003
80 The terms of the orders made by Lindgren J on 21 October 2003 are set out in [8] above. These orders were made approximately 18 months after the annulment of Dr Wenkart’s bankruptcy.
81 The issue in these proceedings is whether and to what extent Lindgren J’s orders limit the amount Mr Pantzer may claim for remuneration, costs, charges and expenses to which he is lawfully entitled.
82 Order 1 of these orders placed Mr Pantzer under an obligation by 22 October 2003 to require ‘any person’ (other than the firm Cutler Hughes and Harris) who had provided services with respect to the estate in bankruptcy of Dr Wenkart to supply a bill of costs for those services pursuant to s 167 of the Act. Order 2 required Mr Pantzer by 23 October 2003 to notify Dr Wenkart of his claim for remuneration in respect of work undertaken by him after the date of the annulment of Dr Wenkart’s bankruptcy. It appears that as at 21 October 2003 there was no issue between the parties as to Mr Pantzer’s claim for remuneration in respect of work undertaken by him on or before the date of the annulment of Dr Wenkart’s bankruptcy.
83 I conclude that, no application having been made for the orders made by Lindgren J on 21 October 2003 to be varied or set aside, Mr Pantzer’s entitlement to recover remuneration, costs, charges and expenses from Dr Wenkart, and if necessary to enforce the charge against the land and improvements known as 47 Union Street, Paddington, is an entitlement to recover:
(a) remuneration which satisfies both of the following requirements:
(i) it is remuneration to which Mr Pantzer is lawfully entitled in respect of work properly undertaken by him in carrying out his duties under the Act after the date of the annulment of Dr Wenkart’s bankruptcy; and
(ii) it is remuneration covered by a claim of which Mr Pantzer notified Dr Wenkart by 23 October 2003; and
(b) the amounts for which bills of costs supplied pursuant to requirements made by Mr Pantzer on or before 22 October 2003 by persons who had provided services with respect to Dr Wenkart’s estate have been taxed by a taxing officer; and
(c) the amount for which the bill of costs of the firm Cutler Hughes and Harris was taxed.
84 I do not understand that the firm Cutler Hughes and Harris has provided to Mr Pantzer a bill of costs dated later than the bill considered by Beaumont J in Wenkart v Pantzer (2003) FCA 471.
85 As mentioned above, it was not open to Mr Pantzer to alter the intended effect of the orders made by Lindgren J on 21 October 2003 by purportedly reserving his ‘right’ to claim additional remuneration in respect of work undertaken by him in relation to Dr Wenkart’s bankruptcy (see [12] above).
validity of the appointment of ms sexton as a taxing officer
86 Subsection 167(9) of the Act, which contains a definition of ‘taxing officer’ for the purposes of s 167 is set out in [31] above. It was not argued that subs 167(9) requires the Inspector General to appoint a person as a taxing officer for the purposes of s 167 generally (that is, as opposed to appointing a taxing officer to tax particular bills of costs in a particular estate). It was accepted, rightly in my view, that the taxation of a bill of costs of a trustee in accordance with reg 8.09 is a taxation under s 167 of the Act. I therefore proceed on the basis that subs 167(8) creates a right of appeal to the Court from a decision of a taxing officer concerning a bill of costs for services provided in relation to the administration of an estate or concerning a bill of costs lodged by a trustee under reg 8.09 of the Regulations (but see [34] and [35] above).
87 The instrument in writing pursuant to which Ms Sexton was purportedly appointed as a taxing officer in respect of Mr Pantzer’s bill of costs is reproduced in [14] above. Dr Wenkart contended that the purported appointment of Ms Sexton by this instrument in writing was invalid as the bill of costs provided by Mr Pantzer was entirely for the period following the annulment of Dr Wenkart’s bankruptcy. Dr Wenkart further contended that there is no evidence before the Court which establishes that the work for which Mr Pantzer claimed remuneration was work performed in relation to the administration of Dr Wenkart’s estate.
88 I do not accept the first of the above contentions. The fact that the bill of costs related to work undertaken in the post-annulment period is not a valid objection to Ms Sexton’s appointment. As I have concluded above, Mr Pantzer is entitled to be remunerated for work undertaken after the annulment of Dr Wenkart’s bankruptcy in carrying out the duties imposed upon him by the Act.
89 There may be circumstances in which the Inspector General would be justified in declining to appoint a taxing officer (or alternatively in declining to make a taxing officer available to conduct a particular taxation) because no occasion for the conduct of a taxation under s 167 of the Act could sensibly be suggested to have arisen. However, the circumstances with which these proceedings are concerned were not of this character.
90 In my view, the instrument in writing dated 3 September 2004 validly appointed Ms Sexton as a taxing officer for the purposes of s 167 of the Act. In that capacity it was necessary for Ms Sexton to satisfy herself that the costs covered by the bill of costs of Mr Pantzer were costs in respect of which he was entitled to receive remuneration from Dr Wenkart’s estate; that is, costs for work properly undertaken in carrying out his duties under the Act as trustee of Dr Wenkart’s estate (see [43] above). Additionally, subs 167(5) required Ms Sexton to be satisfied that the employment of Mr Pantzer in respect of the particular matters out of which the costs arose was duly authorised and was reasonable and necessary. There is, no doubt, considerable overlap between these two obligations. The possibility, even the probability, that the proper performance of the above obligations would result in Ms Sexton entirely disallowing Mr Pantzer’s bill of costs would not affect the validity of the appointment of Ms Sexton effected by the instrument in writing dated 3 September 2004. For this reason I reject Dr Wenkart’s second contention in relation to Ms Sexton’s appointment.
91 The submission that Ms Sexton was not validly appointed as a taxing officer for the purposes of s 167 of the Act by the instrument in writing dated 3 September 2004 fails.
92 For similar reasons, I reject the submission that Ms Sexton was not validly appointed as a taxing officer for the purposes of s 167 of the Act by the instrument in writing dated 20 December 2004 (see [18] above). By that instrument of appointment Ms Sexton was appointed to tax the solicitor/client bill of costs of the firm Sally Nash & Co relating to work undertaken in respect of a High Court proceeding and the fees of three barristers. It was for Ms Sexton to determine pursuant to her appointment whether those costs were reasonably and bona fide incurred by Mr Pantzer for the purpose of administering the estate of Dr Wenkart, or performing a public duty imposed of him by the Act, conformably with his duty to perform his duties with reasonable care and skill and in an efficient and economical way. Only if the taxing officer was so satisfied was Mr Pantzer entitled to be indemnified in respect of those costs.
Form of Bill of Costs
93 The application by which Dr Wenkart instituted his challenge to the certificate of taxation issued by Ms Sexton on 13 December 2004 (see [15] above) contains an allegation that every item of the bill of costs submitted by Mr Pantzer for taxation specified an incorrect rate of charging. I do not understand this allegation to have been pressed as an independent ground of challenge to the certificate issued by Ms Sexton. If it was pressed I reject it; the validity of a certificate of taxation is not undermined by errors in the bill of costs the subject of the taxation. The rate at which Mr Pantzer was entitled to be remunerated is not in contest in these appeals. It was for Ms Sexton as taxing officer to determine whether the bill of costs submitted by Mr Pantzer claimed remuneration at the correct rate. If she considered that it did not, her duty was to tax off the excess amounts claimed (see subreg 8.11(3)). I do not understand that I have been invited by the parties to review on an item by item basis the rate at which Ms Sexton taxed Mr Pantzer’s entitlement to remuneration. Nor do I consider that it would be appropriate for me to adopt such an approach (see [35] above).
94 Dr Wenkart, at least in his written submission, contended that the bills of costs submitted by Mr Pantzer for taxation did not comply with the requirements of subreg 8.10(1)(c) in that they did not:
‘show separately the trustee’s:
(ii) professional fees; and
(iii) disbursements and expenses …’
95 Dr Wenkart did not clarify the precise basis of this complaint which appears not to have been made to Ms Sexton. He placed reliance on alleged concessions said to have been made by Mr Pantzer to ITSA. I am not satisfied that concessions in this regard were made by Mr Pantzer to ITSA. I consider it appropriate to proceed on the basis that Ms Sexton must be understood to have found that Mr Pantzer’s bills of costs either complied or substantially complied with subreg 8.10(1). I see no reason to conclude that I should interfere with her findings.
MATTER NSD 7051 OF 2002
96 As mentioned above, final judgment in matter NSD 7051 of 2002 is presently reserved before me. The applications in these proceedings place reliance on matters pleaded in that proceeding. It is not clear to me that the making of orders in these proceedings need await the determination of that proceeding. However, as mentioned above, the parties will be given an opportunity to make further submissions on that issue.
conclusion
97 I conclude that in each proceeding the appeal from the decision of the taxing officer should be allowed. The certificate of taxation in each proceeding allowed Mr Pantzer either remuneration or costs and expenses to which, for the reasons I have outlined above, he is not entitled under the Act. The certificate in each proceeding should therefore be set aside. In the ordinary course, the bills of costs would be remitted to the taxing officer for reconsideration. I am not presently persuaded that Dr Wenkart is entitled to any of the additional relief sought by him. However, as I have already mentioned, I propose to delay making formal orders in these matters until the parties have the opportunity to consider these reasons for judgment and, if appropriate, supplement their submissions to the Court.
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I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. |
Associate:
Dated: 8 November 2005
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Counsel for the Applicant: |
M Green and D Jay |
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Solicitor for the Applicant: |
Bruce Stewart Dimarco |
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Counsel for the First Respondent: |
J Johnson |
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Solicitor for the First Respondent: |
Sally Nash & Co |
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Counsel for the Second and Third Respondents: |
A Berger, S Daley and M Murray |
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Solicitor for the Second and Third Respondents: |
Australian Government Solicitor |
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Date of Hearing: |
17, 18 and 19 January, 31 May and 1, 2 and 3 June 2005 |
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Date of Judgment: |
8 November 2005 |
