BETWEEN:	THOMAS RICHARD WENKART Applicant
AND:	WARREN PANTZER AS FORMER TRUSTEE OF THE ESTATE OF THOMAS RICHARD WENKART First Respondent HAPDAY HOLDINGS PTY LTD (ACN 001 185 253), MACQUARIE HEALTH CORPORATION LIMITED (ACN 003 531 860) AND THROVENA PTY LIMITED (ACN 001 738 763) Second Respondent
BETWEEN:	WARREN PANTZER AS FORMER TRUSTEE OF THE ESTATE OF THOMAS RICHARD WENKART Cross-Claimant
AND:	THOMAS RICHARD WENKART First Cross-Respondent HAPDAY HOLDINGS PTY LTD (ACN 001 185 253) Second Cross-Respondent

JUDGE:	BRANSON J
DATE OF ORDER:	16 SEPTEMBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The applications made pursuant to the notices of motion filed on 2 June 2008 and 5 June 2008 respectively be dismissed.

2. A Registrar conduct an inquiry to determine the date, if any, on which 28 days had passed from the determination of the quantum of an amount by way of remuneration, costs, charges and expenses to which Mr Pantzer is lawfully entitled from Dr Wenkart that resulted in the aggregate of such determinations exceeding $769,191.66.

3. The proceeding be otherwise stood over to a date to be fixed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 7051 of 2002

BETWEEN:	THOMAS RICHARD WENKART Applicant
AND:	WARREN PANTZER AS FORMER TRUSTEE OF THE ESTATE OF THOMAS RICHARD WENKART First Respondent HAPDAY HOLDINGS PTY LTD (ACN 001 185 253), MACQUARIE HEALTH CORPORATION LIMITED (ACN 003 531 860) AND THROVENA PTY LIMITED (ACN 001 738 763) Second Respondent
BETWEEN:	WARREN PANTZER AS FORMER TRUSTEE OF THE ESTATE OF THOMAS RICHARD WENKART Cross-Claimant
AND:	THOMAS RICHARD WENKART First Cross-Respondent HAPDAY HOLDINGS PTY LTD (ACN 001 185 253) Second Cross-Respondent

JUDGE:	BRANSON J
DATE:	16 SEPTEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1 I have twice before published reasons for judgment in this matter; Wenkart v Pantzer [2007] FCA 1589 published on 16 October 2007 and Wenkart v Pantzer [2008] FCA 478 published on 11 April 2008. These reasons for judgment should be read together with my earlier reasons for judgment.

2 The history and subject matter of this proceeding is summarised in Wenkart v Pantzer [2007] FCA 1589 at [2]-[35]. As I noted in Wenkart v Pantzer [2008] FCA 478 at [1]-[8], no agreement was reached between the parties as to the orders appropriate to be made to give effect to my reasons for judgment of 16 October 2007. Indeed, after hearing further from the parties, I accepted that I had not dealt with all outstanding issues between the parties. Those outstanding issues were dealt with in Wenkart v Pantzer [2008] FCA 478. When publishing those reasons for judgment I stood the proceeding over to a date to be fixed for the purpose of the making of orders giving effect to the reasons, including orders as to costs.

3 Orders giving effect to my reasons for judgment have still not been made. On 2 June 2008 Dr Wenkart applied by notice of motion for orders that the Court reconsider [32(e)] and [92] of the reasons for judgment published on 11 April 2008 and make final orders disposing of the proceeding. On 5 June 2008 Mr Pantzer applied by notice of motion for orders that the Court withdraw and reconsider [56]-[91] of the reasons for judgment published on 11 April 2008 and that Mr Pantzer be given leave to re-open his case to tender further evidence in support of his claim.

4 For the reasons set out below the applications made by each of Dr Wenkart and Mr Pantzer by their respective notices of motion will be dismissed.

Applicable Principles

5 This is not, strictly speaking, a case of recalling a judgment. No final orders have as yet been pronounced, let alone entered, on Mr Pantzer’s cross-claim. The case is thus distinguishable from Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 where the High Court had pronounced orders although they had not been formally entered.

6 In Aristocrat Technologies Australia Pty Ltd v IGT (Australia) Pty Ltd (2007) 73 IPR 545 (“Aristocrat”) Allsop J at [4]-[9] observed:

There has been a practice in this Court for as long as I can recall in relation to intellectual property matters, except in urgent cases where immediate orders are required, for the Court to direct the parties to bring in short minutes of order in relation to the reasons for decision.

By and large, this is a salutary and wise course, given the complexities of many intellectual property cases, including patent cases, and the possibility of complex multi-claimed specifications and patents not being adequately, or fully, dealt with by substantive reasons. With skilled counsel, the quickest and most efficient way of dealing with orders is to provide reasons with or without draft orders and for counsel to attend to the appropriate form of orders to be brought to Court.

The danger that lurks in that salutary practice is that, without orders being made, it might be seen that the case has not finished and if parties win or lose, for reasons that may or may not be such as to be helped by further evidence, there may be a temptation to add to evidence and/or submissions to remedy what are perceived as errors or lack of attention in the reasons.

The balance between obtaining the correct orders with the assistance of counsel and dealing with matters truly overlooked and simply having another go may at times be difficult to assess. However, I think it is necessary to be vigilant to ensure that the hearing of the matter and the provision of reasons with a call for the bringing in of short minutes is not viewed as the first stage of the debate, to be continued by ever reducing iterations of analysis and evidence. This is especially so in relation to appeals from the Office and the Commissioner which, for the reasons I expressed in paragraphs [5] and following of my reasons of 7 February 2007, should be understood as not ultimate final hearings as to the validity of the patent. These hearings should be, as far as the complexity of a matter allows, dealt with as expeditiously as possible.

I have had regard to the careful submissions of the applicant filed on 10 May 2007 and, in particular, [15] through [44]. The principles governing re-opening are set out in the cases there identified and I have had particular regard to what was said by Hill J in Hyster Australia Proprietary Limited v Anti-Dumping Authority (1993) 41 FCR 259; Wentworth v Rogers [2002] NSWSC 921; Twenty-First Australia Inc v Shade NSWSC (unreported, New South Wales Supreme Court, Equity Division, Young J, 31 July 1998), AB v Federal Commissioner of Taxation (1998) 157 ALR 510, and Smith v New South Wales Bar Association (1992) 176 CLR 256.

The questioning of re-opening is, as Hill J said in Hyster 41 FCR 259, a question of a general judicial discretion which has bearing down on it various considerations: s 22 of the Federal Court of Australia Act 1976 (Cth), the interests of justice in all the circumstances of the case between the parties, the importance of finality of litigation, the importance of the public register kept by the Commissioner for Patents being correct and public confidence in the prompt despatch of the business of this Court.

7 Although Aristocrat was an intellectual property case and I am here concerned with the administration of a bankrupt estate and related matters, I consider that the principles outlined by Allsop J provide appropriate general guidance as to the approach to be taken on the present motions. In particular I proceed on the basis that a party who seeks an order that I withdraw and reconsider any part of the reasons for judgment earlier published by me must demonstrate why the interests of justice suggest that this would be an appropriate course for me to adopt. Mere discontent with an aspect of my published reasons for judgment is not sufficient to override the public interest in the finality of litigation. I find support for the above conclusion in Nutrasweet Australia Pty Ltd v Ajinomoto Co Inc (No 3) (2007) 73 IPR 282 at [12] where Finkelstein J said:

The power to reopen a case is not in doubt. It is, however, a power that must be exercised sparingly, having regard to the public interest in maintaining the finality of litigation. Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256, 265. Still, there are occasions in which it is both appropriate and fair to allow further argument and even further evidence in a case before it is finally disposed of. For example, if it turns out that a court finds that the unsuccessful party has not had the clear and adequate opportunity to argue its case, there might be a denial of procedural fairness if the case were not reopened: Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300, 309. It would also be appropriate to reopen if it were clear that the court had proceeded “on a misapprehension as to the facts or the law”, especially where the misapprehension was the result of accident or oversight and not the fault of the party seeking to reopen the case: De L v Director-General, NSW Department of Community Services (No 2) (1997) 190 CLR 207.

Dr Wenkart’s Motion

Paragraph [32(e)] of the reasons for judgment of 11 April 2008

8 At [17]-[33] of my reasons for judgment of 11 April 2008 I gave consideration to resolutions of Dr Wenkart’s creditors concerning Mr Pantzer’s remuneration. At [32] I recorded my conclusions concerning the proper construction of those resolutions. Those conclusions included, at [32(e)], my conclusions that at the final meeting of Dr Wenkart’s creditors, which was held on 15 March 2002, the creditors purportedly approved the payment to Mr Pantzer of $105,000 in accordance with paragraph (a)(i) of Dr Wenkart’s s 73 proposal. This conclusion flowed from [27] of my reasons for judgment which reads as follows:

The minutes record that a motion that Mr Pantzer be paid $105,000.00 in accordance with paragraph (a)(i) of Dr Wenkart’s s 73 proposal as amended was carried on the voices. However the following motion was not carried:

That the remuneration of the Trustee and that of his partners and staff to 15 March 2002, additional to the amount of $105,000.00 provided for by the Bankrupt’s proposal, be approved on a time basis in accordance with rates of Lawler partners, being those rates formerly recommended by the Insolvency Practitioners’ Association of Australia, in the sum of $115,406.07 including GST.

The minutes record that Mr Tolcher therefore stated that “the Trustee would therefore claim 85% of the IPAA Guide to Hourly Rates pursuant to Section 162(4) and Reg 8.08 of the Bankruptcy Act”.

9 Dr Wenkart submitted that the conclusion in [32(e)] of my reasons for judgment of 11 April 2008 was not supported by any evidence before the Court and should be withdrawn. It is appropriate therefore to turn to the evidence touching on the relevant resolution.

10 Paragraph (a) of Dr Wenkart’s s 73 proposal was in the following terms:

The following bank cheques shall be given to you to hold subject to the acceptance of this proposal by my creditors in a properly convened meeting for:

(i) an amount of $105,000.00 in the form of a bank cheque for your fees (including any associated with the current proceedings) as my Trustee up to the conclusion of the Section 73 meeting and its implementation (in accordance with your letter of 7 December 2000);

(ii) the amount of $105,000.00 (in accordance with your letter of 7 December 2000) less the cash on hand you currently hold (as advised to be approximately $24,000) in the form of a bank cheque for your outstanding legal fees (including any associated with the current proceedings) due to Cutler Hughes & Harris up to the date and conclusion of the Section 73 meeting and in implementation;

(iii) individual bank cheques payable to the parties for the amounts against their names as listed in Attachment A which total $34,156.00; and

(iv) individual bank cheques payable to the parties for the amounts against their names as listed in Attachment B which total $10,000.00 representing a nominal dividend to those creditors.

These cheques will be provided to you immediately before that creditors meeting.

11 The minutes of the final meeting of Dr Wenkart’s creditors relevantly records the following beside the heading “TRUSTEE’S REMUNERATION, COSTS AND EXPENSES”:

The President noted that the Bankrupt’s proposal provided for the payment of a cheque in the amount of $105,000.00 to the Trustee. Mr Tolcher put the following motion to the meeting:

“That the payment of $105,000.00 to Warren Pantzer be approved, this being consistent with paragraph (a)(i) of the Bankrupt’s Section 73 proposal as amended.”

Moved by: Ray Tolcher (Trustee’s Representative)

Seconded by: Noone

Not carried.

After some discussion the following motion was put to the meeting:

“That Warren Pantzer be paid $105,000.00 in accordance with paragraph (a)(i) of the Bankrupt’s Section 73 proposal as amended.”

Moved by: Dermot Maxwell (Gadens/Solomon Garland)

Seconded by: Geoff Holden (Hapday Holdings, Throvena)

The President abstained from voting. Carried on the voices.

Mr Tolcher tabled an account of the Trustee’s outstanding and unpaid remuneration, costs and expenses and advised creditors that an inspection was available. He noted that there were outstanding and unpaid remuneration, costs and expenses not accounted for by the Bankrupt’s proposal. He also noted that on 11 March 2002 consent orders were entered into by the Bankrupt and Hapday Holdings Pty Ltd (in proceedings to which Throvena Pty Ltd and Macquarie Health Limited were parties) to secure Trustee’s remuneration, costs and expenses not provided for by the Bankrupt’s proposal. The following motion was put to the meeting:

“That the remuneration of the Trustee and that of his partners and staff to 15 March 2002, additional to the amount of $105,000.00 provided for by the Bankrupt’s proposal, be approved on a time basis in accordance with rates of Lawler partners, being those rates formerly recommended by the Insolvency Practitioners’ Association of Australia, in the sum of $115,406.07 including GST.”

Moved by: Dermot Maxwell (Gadens/Solomon Garland)

Seconded by: Noone

The President abstained from voting. Not carried on the voices. Mr Tolcher stated that the Trustee would therefore claim 85% of the IPAA Guide to Hourly Rates pursuant to Section 162(4) and Reg 8.08 of the Bankruptcy Act. Mr Holden stated that it was his understanding that the Trustee could obtain the approval or payment of remuneration in three ways: by creditor approval, by claiming 85% pursuant to Section 162(4) and Reg 8.08 of the Bankruptcy Act, and on court approval.

12 Later in the same minutes it is recorded that the motion that the bankrupt’s proposal for a composition be accepted pursuant to s 73 of the Bankruptcy Act 1966 (Cth) (“the Bankruptcy Act”) was carried unanimously on the voices. The minutes also record that the President thereafter noted that it was not appropriate for another meeting of creditors to be held in view of the annulment of Dr Wenkart’s bankruptcy.

Mr Geoffrey Holden, a director of Hapday Holdings Pty Limited and Throvena Pty Limited, gave both affidavit and oral evidence in the proceeding. During his oral evidence in chief, which I had some difficulty understanding, Mr Holden was questioned about the resolution that was moved at the final creditors’ meeting to approve the trustee’s remuneration in the sum of $105,000 as provided for by the bankrupt’s proposal. He said:

… if I remember correctly the resolution was altered to link the approval of the fees to the proposal and that was all we were comfortable with.

13 When asked whether he recollected saying that he objected to the word “remuneration” in the resolution he replied:

I think I could have because I was wanting to tie it exactly to the section 73 proposal and was being very cautious that it was all linked.

He agreed that the resolution eventually passed because the revised version of the resolution “put the linkages in and tied everything up”.

14 I considered the evidence now identified by Dr Wenkart as demonstrating that [32(e)] of my reasons for judgment of 11 April 2008 finds no support in any evidence before the Court before I published those reasons for judgment. I have considered it again in the context of Dr Wenkart’s motion. I accept that an appeal court may find that my conclusion is erroneous. However, I am not persuaded that it would be appropriate for me to withdraw [32(e)] of my reasons for judgment. The subparagraph reflects my considered view as at 11 April 2008 as to the effect of the evidence before me. I am not persuaded that I proceeded under a clear misapprehension as to the facts. Indeed Dr Wenkart has not persuaded me that the conclusion reflected in [32(e)] of my reasons for judgment of 11 April 2008 is plainly erroneous.

Paragraph [92] of the reasons for judgment of 11 April 2008

15 I considered the order or orders appropriate to be made on Mr Pantzer’s cross-claim at [90]-[92] of the reasons for judgment of 11 April 2008. I there said:

As already mentioned, order 1 of the consent orders of 11 March 2002 recorded that Dr Wenkart relevantly agreed to pay the remuneration, costs, charges and expenses to which Mr Pantzer was lawfully entitled or may become lawfully entitled “within 28 days of determination of the quantum of the same”. Having regard to the approach of the Full Court in Pantzer v Wenkart (2006) 153 FCR 466, it seems that order 1 must be understood distributively; that is, as recording an agreement that upon the quantum of any claim by Mr Pantzer for remuneration, costs, charges and expenses being determined, Dr Wenkart agreed to pay the same within 28 days.

I conclude that as at the date that the cross-claim was filed, Mr Pantzer, in his capacity as trustee of Dr Wenkart’s bankrupt estate, had received a larger amount by way of receipts than the determined quantum of the remuneration, costs, charges and expenses to which he was lawfully entitled. Mr Pantzer has therefore failed to demonstrate that, as at the date of the filing of his cross-claim, he was entitled to “orders in aid” of the consent orders made on 11 March 2002.

Nonetheless, I do not accept the submission of Dr Wenkart that it would be appropriate simply to dismiss the cross-claim with costs. Were this course adopted Mr Pantzer could simply institute a fresh application seeking to enforce the charge over the Paddington property. The regrettably long and complex history of this matter renders such an outcome even more undesirable than might ordinarily be the case. The appropriate way to deal with the premature filing of Mr Pantzer’s cross-claim is, in my view, by the making of appropriate costs orders. This will require, as a first step, the identification of the date, if any, on which 28 days had passed from the determination of the quantum of an amount by way of remuneration, costs, charges and expenses to which Mr Pantzer is lawfully entitled that resulted in the aggregate of such determinations exceeding $769,191.66 (ie the total amount received by Mr Pantzer as trustee of Dr Wenkart’s estate). If the parties are unable to reach agreement on this question, I propose to make an order for the making of an inquiry by a Registrar (O 39 r 2 and r 9 of the Federal Court Rules).

16 Dr Wenkart contended that the Court should withdraw the reasons set out in [92] and reconsider its holding in the light of the other findings made. He submitted that “the only available course is to simply dismiss the cross-claim with costs”.

17 It is not entirely clear whether Dr Wenkart contended that the Court did not have power to do other than dismiss the cross-claim or whether he contended simply that it would be inappropriate for the Court to do otherwise. An exchange between me and senior counsel for Dr Wenkart, Mr Sheahan SC, on 12 November 2007 indicates that, at least at that time, Dr Wenkart was not challenging the power of the Court to find that Mr Pantzer’s entitlement to relief was established by reference to events that occurred after the date of the filing of his cross-claim. That exchange was relevantly as follows:

MR SHEAHAN: There might be a timing issue in terms of – those were amounts that accrued over a period mostly after the commencement of these proceedings and we would submit that to the extent that they accrued after the commencement of these proceedings they’re not pertinent to what we will submit is the fundamental question, was there a need to go to the court for its aid when the proceedings commenced?

HER HONOUR: I expressed once a view about what the order of Beaumont J was intended to achieve and therefore how it should be constructed and I erred in doing that and I therefore had to have a second thought about that and I think the view reflected in the judgment I’ve most recently published is that it must have been intended to be a charge to secure the amounts owing from time to time.

MR SHEAHAN: Yes.

HER HONOUR: Therefore even if certain amounts were [not] due at the time the proceedings were commenced but they became due thereafter one can now rely on evidence that arises after the institution of a proceeding, can’t one?

MR SHEAHAN: Yes.

HER HONOUR: Even though the cause of action, I think, needs to have existed. What would the significance of all of that be?

MR SHEAHAN: Your Honour, since the Judicature Act it’s been possible to add causes of action based upon events that arose since the commencement of the proceedings. So there’s no issue as to the possibility of raising such claims. The question is really as to the propriety of the commencement of such claims.

18 The above exchange caused me to believe that Dr Wenkart accepted that, in determining Mr Pantzer’s cross-claim, the Court could take into account amounts to which Mr Pantzer became “legally entitled” from Dr Wenkart within the meaning of the consent orders made by Beaumont J on 11 March 2002 after the date on which the cross-claim was filed – albeit that he contended that the preferable course would be not to do so. I indicated in my reasons for judgment of 11 April 2008 at [92] why I regarded the option of simply dismissing Mr Pantzer’s cross-claim on the basis that it had been instituted prematurely to be undesirable. It seemed to me to be a course likely to result in the institution of yet further litigation between the parties. This did not seem to me to be in the public interest or in the interests of the parties, particularly having regard to the Court’s wide powers to formulate orders for costs. It may be that I would have taken a different view had Dr Wenkart, at an early stage in this regrettable litigious saga, identified, perhaps as a preliminary point for the Court’s determination, his claim that Mr Pantzer’s cross-claim was bound to fail as it had been filed prematurely. He did not do so. Rather, as it seems to me, he utilised the proceeding as a vehicle to obtain judicial review of virtually every aspect of Mr Pantzer’s claim for remuneration as trustee of his estate.

19 Section 30 of the Bankruptcy Act relevantly provides:

1) The Court:

(a) has full power to decide all questions, whether of law or of fact, in any case of bankruptcy or any matter under Part IX, X or XI coming within the cognizance of the Court; and

(b) may make such orders (including declaratory orders and orders granting injunctions or other equitable remedies) as the Court considers necessary for the purposes of carrying out or giving effect to this Act in any such case or matter.

(2) The Court may direct such inquiries to be made and accounts to be taken for the purposes of any proceeding before the Court as the Court considers necessary and may, when directing an account to be taken, or subsequently, give special directions as to the manner in which the account is to be taken or vouched.

20 Section 22 of the Federal Court of Australia Act 1976 (Cth) provides:

The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided.

21 Having regard to the way in which this proceeding has been conducted, I remain of the view that this Court has the power to proceed in the way foreshadowed by me at [92] of the reasons for judgment of 11 April 2008. I see no reason to reconsider my conclusion that this power should be exercised. I do not consider it appropriate to reconsider [92] of the reasons for judgment of 11 April 2008.

Mr Pantzer’s Motion

22 At [56]-[82] of the reasons for judgment of 11 April 2008 I gave consideration to Mr Pantzer’s liability to pay the legal costs of the firm Cutler Hughes & Harris. At [83] of those reasons for judgment I gave consideration to Mr Pantzer’s liability to pay other legal costs. At [84]-[89] I gave consideration to whether, as at the date of the filing of Mr Pantzer’s cross-claim, there was any amount to which Mr Pantzer was “lawfully entitled” from Dr Wenkart within the meaning of the consent order made by Beaumont J on 11 March 2002.

23 At [90]-[91], having regard to the approach of the Full Court in Pantzer v Wenkart (2006) 153 FCR 466, I found that as at the date of the filing of the cross-claim Mr Pantzer, in his capacity as trustee, had received a larger amount by way of receipts than the amount of the remuneration, costs, charges and expenses to which he was then “lawfully entitled” from Dr Wenkart. I therefore concluded that Mr Pantzer had failed to demonstrate that, as at the date of the filing of his cross-claim, he was entitled to “orders in aid” of the consent orders made on 11 March 2002.

24 Mr Pantzer has now submitted that [82]-[83] of the reasons for judgment of 11 April 2008 determined an issue on a basis which either had not been contended for by Dr Wenkart or which ought not to have been entertained without Mr Pantzer being given an opportunity to respond including by leading additional evidence. The issue identified by Mr Pantzer is whether, as at the date of the filing of his cross-claim, he had a lawful entitlement to be reimbursed from the bankrupt estate in respect of monies paid to the legal firm of Cutler Hughes & Harris.

25 I reject the above submission. By agreement of the parties I assumed responsibility to complete the hearing and determination of the matter “standing in the shoes” of both Beaumont and Lindgren JJ. As [56]-[82] of the reasons for judgment of 11 April 2008 record, the issue of Mr Pantzer’s entitlement to be reimbursed from the bankrupt estate in respect of monies paid to Cutler Hughes & Harris was a live issue before each of Beaumont and Lindgren JJ. Moreover, paras 121-126 of Dr Wenkart’s written submissions dated 29 June 2005 include the submission that the certificate of taxation in the amount of $268,477.54 issued on 17 February 2003 followed a taxation by Ms Sexton of the entirety of the work relevantly performed by Cutler Hughes & Harris. That submission was consistent with evidence given by Ms Sexton before Beaumont J, the accuracy of which was accepted before me by Mr Pantzer, that she was appointed “to tax the solicitor-client bills of costs of Cutler Hughes & Harris in relation to work … done in the estate of Dr Wenkart”. Additionally, by written submission dated 3 December 2007 Dr Wenkart disputed a schedule of receipts and payments provided to the Court by Mr Pantzer pursuant to an order of the Court dated 12 November 2007. By those submissions Dr Wenkart asserted:

… the amount sought by Cutler Hughes and Harris paid and unpaid was fully taxed (including Counsel’s fees). Thus, the total amount to which Mr Pantzer was entitled to reimbursement from the estate was $268,477.54 (being the amount of the certificate of taxation issued by Ms Sexton). It appears that Mr Pantzer paid out more than this money to third party providers. None of these providers have (sic) challenged the taxation of the amounts which led to an entitlement which was less than the amounts they received.

No evidence was led by Mr Pantzer other than to confirm the opposite. Whether Mr Pantzer seeks the recovery of the amounts overpaid to Cutler Hughes and Harris and others is a matter for him.

Mr Pantzer proceeded to have all of the legal costs (including costs of Counsel and associated disbursements) which had been sought from him (both paid and unpaid) until that time taxed. This taxation process commenced some time after the annulment. It was a necessary precondition to the proof by Mr Pantzer of his entitlement to have these disbursements paid from the estate. The evidence given by Ms Sexton was that she was not presented with any bills and that she received all of the legal files from Cutler Hughes and Harris and proceeded to in effect prepare bills which she then taxed. Mr Johnson conceded this point before Lindgren J (in the presence of Mr Pantzer); namely, that all these costs had been assessed. That is why the 21 October 2003 orders were framed this way.

26 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;

(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.

27 It is unnecessary for me to determine whether Mr Pantzer would require the leave of the Supreme Court of NSW to use Mr Holden’s affidavit in this proceeding. Even were I satisfied that Mr Pantzer should have leave to re-open his case for the purpose of adducing further evidence (which I am not), I am not satisfied that the additional evidence that he wishes to adduce relevantly bears on the only issue to which it is claimed to be relevant. That issue is whether this proceeding has been conducted by the parties on the basis of an agreement by Mr Pantzer to have the bills of costs of Cutler Hughes & Harris taxed and, if so whether that agreement is reflected in the orders made by Lindgren J on 21 October 2003.

28 I discussed the above issue in the reasons for judgment of 11 April 2008 at [59]-[82]. As is there made plain, I am satisfied that Lindgren J made the orders dated 21 October 2003 in the terms that he did in the belief that certain advice given to him by Mr Pantzer’s then counsel was accurate (see [80]-[81] of the reasons for judgment of 11 April 2008). Evidence tending to establish that the advice given to Lindgren J was inaccurate might provide a basis for the variation of the orders made by Lindgren J. In earlier reasons for judgment I have drawn attention to the importance in this proceeding of the effect of the orders made by Lindgren J and to the possibility of an application being made for those orders to be varied (see, for example, Wenkart v Pantzer [2007] FCA 1589 at [27]-28]). No such application has been made. Evidence of the kind that Mr Pantzer now seeks leave to adduce would not impact on the proper construction of the orders made by his Honour. The true meaning of the orders made by his Honour is to be determined by reference to the meaning that his Honour intended the orders to have. His Honour’s intention can be ascertained by reference to the transcript of the hearing before him.

29 For the above reasons I do not consider it appropriate to withdraw and reconsider [56]-[91] of the reasons for judgment of 11 April 2008 or to give Mr Pantzer leave to re-open his case to tender further evidence.

Conclusion

30 The parties have not reached an agreement as to the date, if any, on which 28 days had passed from the determination of the quantum of an amount by way of remuneration, costs, charges and expenses to which Mr Pantzer is lawfully entitled from Dr Wenkart that resulted in the aggregate of such determinations exceeding the total amount received by Mr Pantzer as trustee of Dr Wenkart’s estate. On the approach that I have considered, and continue to consider, it appropriate to adopt, before final orders can be made on Mr Pantzer’s cross-claim it is necessary to know when, if at all, Mr Pantzer became entitled to enforce the charge over Dr Wenkart’s Paddington property reflected in order 2 of the consent orders made by Beaumont J on 11 March 2002. It will therefore be ordered that a Registrar conduct an inquiry to determine that date. When that date has been identified it will be necessary for the parties to have the opportunity of making further submissions as to orders, including orders for costs, appropriate to be made on Mr Pantzer’s cross-claim.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated: 16 September 2008

Counsel for the Applicant and First Cross-Respondent:	Mr M Green

Solicitor for the Applicant and First Cross-Respondent:	Bruce Stewart Dimarco

Counsel for the First Respondent and Cross-Claimant:	Mr S Golledge

Solicitor for the First Respondent and Cross-claimant:	Bartier Perry

Date of Hearing:	31 July 2008

Date of Judgment:	16 September 2008

Top