Case: Pantzer v Wenkart [2006] FCAFC 140 ; (2006) 153 FCR 466
Outcome: cited
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] FCAFC 140 ; (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. 23 At [90]-[91], having regard to the approach of the Full Court in Pantzer v Wenkart [2006] FCAFC 140 ; (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 &amp; 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 &amp; 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 &amp; 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 &amp; 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.