Case: Pantzer v Wenkart [2006] FCAFC 140 ; (2006) 153 FCR 466 at [44]
Outcome: discussed
ASIC sought information about the progress of the winding up. ASIC was at pains, both in its enquiries and in the present application to the Court, to make it clear that it was not alleging or suspecting wrongdoing by the Liquidator. It may be doubted that ASIC was exercising its power of enquiry under s 536(1) of the Corporations Act . It never stated that it was. It has never claimed that the Liquidator, in terms of s 536(1)(a) , had not "faithfully performed his duties" or had not "observed a requirement of the Court or of the Corporations Act or of the regulations or the rules". It did not make the Liquidator aware that it was acting as a result of communications from the Trust until 21 March 2006. But in any event, there is no question that ASIC had power to act as it did. Rather the point is whether in responding to ASIC's queries the Liquidator was providing the services contemplated by the Winding Up Order. Put another way, was the provision of information to ASIC an incident of the Liquidator acting as such, charged with the responsibility of winding up the Scheme (cf Pantzer v Wenkart [2006] FCAFC 140 ; (2006) 153 FCR 466 at [44] ). In my opinion, both questions must be answered in the affirmative. 38 In Pantzer the Full Court of this Court upheld a claim for remuneration by a trustee in bankruptcy. In his capacity as a former trustee the appellant had been drawn into litigate to assert a claimed amount which the respondent had not challenged by seeking taxation. Nothing in the judgment of the Full Court would appear to be inconsistent with the conclusion I have reached. Mr Tree was correct in submitting that (i) Pantzer provides no support for an additional requirement that to qualify for remuneration a liquidator's work must also "add value" to the liquidation, and (ii) the present case is stronger in that the Liquidator's work was not just "unavoidable, in a practical sense" albeit for his own benefit (at [43]-[44]) he was lawfully compelled by the Winding Up Order to perform it. 39 There will be an order that Barry Keith Hamilton is entitled to be paid by the Solicitors' Trust the sum of $85,639.65. ASIC's application will be dismissed. 40 The parties should file and serve before 10 am on Wednesday 20 December 2006 written submissions as to how the costs of this application should be dealt with. The alternatives seem to be that the costs of all parties be paid out of the proceeds of the winding up, or from the Guarantee Fund, or that ASIC and the Trust pay the Liquidator's costs. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey . Associate: Counsel for the Applicant: P Tree SC Solicitors for the Applicant: Toomey Maning &amp; Co Counsel for the Respondent: A Abbott Solicitor for the Respondent: Australian Government Solicitor Counsel for the Solicitors Trust: M Daly Solicitors for the Solicitors Trust: Page Seager Date of Hearing: 5 December 2006 Date of Judgment: 18 December 2006 Dated: AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1774.html