Case: Wenkart v Pantzer [2003] FCA 471
Outcome: cited
Eight first instance interlocutory judgments were published in this proceeding before it was allocated to my docket in late 2004: Wenkart v Pantzer [2003] FCA 315 ; Wenkart v Pantzer [2003] FCA 364 ; Wenkart v Pantzer [2003] FCA 432 ; Wenkart v Pantzer [2003] FCA 456 ; Wenkart v Pantzer [2003] FCA 471 ; Wenkart v Pantzer (No 6) [2003] FCA 1210 ; Wenkart v Pantzer (No 2) [2003] FCA 1211 ; (2003) 132 FCR 273, being the name under which Wenkart v Pantzer (No 7) [2003] FCA 1211 has been reported, ( Wenkart v Pantzer (No 2) ) and Wenkart v Pantzer (No 3) . The Full Court dismissed appeals from three of these interlocutory judgments but allowed a cross appeal against the judgment in Wenkart v Pantzer [2003] FCA 456 which concerned the date upon which Dr Wenkart became aware of the amount of a claim for remuneration made by Mr Pantzer ( Wenkart v Pantzer [2003] FCAFC 210 ; (2003) 132 FCR 204). 24 As I noted in the taxation judgment at first instance at [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 ruled that Mr Pantzer was lawfully entitled to be reimbursed for certain taxed costs of the firm Cutler Hughes and Harris ( Wenkart v Pantzer [2003] FCA 471). The second order may be assumed to reflect the fact that Mr Pantzer had already made claims for remuneration in respect of services provided before the annulment of Dr Wenkart's bankruptcy. 25 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." 26 As I noted in the taxation judgment at first instance, 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. It may be that he simply wished to place on record his understanding that the orders made on 21 October 2003 did not reach to claims for remuneration and disbursements for any period commencing thereafter. 39 As mentioned above, I gave consideration in the taxation judgment at first instance to the issue of whether, and to what extent, the orders made by Lindgren J on 21 October 2003 limited the amount Mr Pantzer could claim as remuneration, costs, charges and expenses to which he is lawfully entitled within the meaning of the consent orders made on 11 March 2002. At [82]-[84] I observed: "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. 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. 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." 52 In Wenkart v Pantzer [2003] FCA 471 Beaumont J ruled that "the respondent [ie Mr Pantzer] is lawfully entitled to be reimbursed for expenses incurred under the Bankruptcy (Estate Charges) Act 1997 (Cth) ". 53 The basis upon which Dr Wenkart opposed the making of an order requiring him to pay the amount of $20,000 for which Mr Pantzer remained liable as at the date of the hearing is summarised in his written submissions as follows: "45. Mr Pantzer also gave evidence that Lawler Partners was proposing to pay the amount of $20,000 for which Mr Pantzer remained liable under the Bankruptcy (Estate Charges) Act 1997 (Cth). This payment was to be made by 10 June 2005. 46. The evidence discloses that 'Not a cent' of that amount was to come from Mr Pantzer. There was no contract, arrangement, or understanding between Lawler Partners and Mr Pantzer in relation to the repayment of that amount. Mr Pantzer recognised that the amount of $20,000 was 'technically payable' by him. He agreed that it was like a 'gift to him', that Lawler Partners was paying the $20,000. Furthermore, no promise has been made in relation to the repayment of that amount by Mr Pantzer. 47. In the circumstances, having regard to the way in which Mr Pantzer puts his claim against Dr Wenkart, the Court should refuse Mr Pantzer to recover the amount of $20,000." (footnotes omitted) 54 Mr Pantzer works in the Sydney office of Lawler Partners which is predominantly a Newcastle based firm. He is not a partner or an employee of Lawler Partners but rather an "independent consultant". As the above written submissions reflect, Mr Pantzer gave evidence that Lawler Partners, rather than he personally, would make payment of the charge (and possibly interest thereon) in respect of Dr Wenkart's bankrupt estate payable under the Bankruptcy (Estate Charges) Act 1997 (Cth) by 10 June 2005. He acknowledged that there was no contract, arrangement or understanding between him and Lawler Partners in relation to that proposed payment. 69 In Wenkart v Pantzer [2003] FCA 471 Beaumont J ruled that Mr Pantzer is lawfully entitled to disbursements claimed by Cutler, Hughes and Harris. His Honour also noted that no appeal had been lodged from the decision of the taxing officer to issue a certificate of taxation on 17 February 2003 in respect of costs, including unpaid costs, in the total sum of $180,435.30. Mr Pantzer gave evidence that the amount of $163,477.54 remains owing by him to Cutler, Hughes and Harris in respect of these costs. I conclude that Mr Pantzer is lawfully entitled to this amount. 70 The invoice from the taxing officer in respect of the taxation of the costs of Cutler, Hughes and Harris was not tendered as foreshadowed in written submissions of Mr Pantzer. It appears that the amount of the invoice has not been paid. 71 Section 167(1) of the Act provides: "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." 73 The reasons for ruling of Beaumont J in Wenkart v Pantzer [2003] FCA 471 at [11] disclose that his Honour, in whose shoes I now stand, was satisfied that Dr Wenkart's then solicitors, acting on behalf of Dr Wenkart and some of his creditors, wrote to Mr Pantzer's then solicitors on 24 April 2002 asking that Cutler, Hughes and Harris tax their costs for work done on behalf of Mr Pantzer. Having regard to the language of s 167(1) and reg 8.11(5) respectively, I conclude that in these circumstances "the person requesting the taxation" within the meaning of reg 8.11(5) was Dr Wenkart and those of his creditors on whose behalf Dr Wenkart's then solicitors were acting when they wrote the letter dated 24 April 2002. 74 There being no evidence that Mr Pantzer has paid the invoice from the taxing officer, I conclude that he is not lawfully entitled to the amount for which it was issued. Liability to pay the invoice rests on Dr Wenkart and those of his creditors who joined in the request that Cutler, Hughes and Harris tax their costs. 75 Following the making by Lindgren J of the orders of 21 October 2003 (see [22] above) Mr Pantzer requested that a claim for remuneration and certain bills of costs for services provided by others purportedly in relation to the administration of Dr Wenkart's estate be taxed. By a certificate dated 13 December 2004 the taxing officer certified that she had taxed and allowed the remuneration, disbursements and expenses claimed by Mr Pantzer for the period 15 March 2002 to 21 October 2003 in the amount of $169,955.54. The amount allowed for Mr Pantzer's remuneration was $83,219.82. Dr Wenkart's challenge to this certificate of taxation, and to a further certificate issued by the taxing officer on 12 January 2005, was dismissed by the Full Court (see [8]-[12] above). As I have observed above (see [23]), Dr Wenkart conceded that upon completion of taxation of the claims for costs and remuneration referred to in orders 1 and 2 of the orders made on 21 October 2003 the amounts taxed would be amounts to which Mr Pantzer is lawfully entitled. I conclude that Mr Pantzer is lawfully entitled to the sum of $83,219.82 for remuneration for the period 15 March 2002 to 21 October 2003.