Case: Doolan v Dare [2005] FCAFC 69 ; (2005) 142 FCR 287 
Outcome: considered
The relationship between s 162 and s 64U of the Act was considered by the Full Court in Doolan v Dare [2005] FCAFC 69 ; (2005) 142 FCR 287. Their Honours' conclusions in this regard concerning the Act as in force at the time with which this proceeding is concerned may be summarised as follows: (a) The Act assumes the existence of a right to be remunerated where a trustee in bankruptcy is appointed in the expectation that he or she will be remunerated and there is no prior arrangement to act gratuitously; (b) s 162, and not s 64U, provides the mechanism for fixing the remuneration to be paid to a trustee; (c) s 64U merely prescribes what is to occur at the first meeting of creditors in relation to a trustee's remuneration, and in the case of s 64U(8), at later meetings of creditors; (d) s 64U(2) requires that a trustee's stated wish to be remunerated at the rate prescribed by the Regulation be minuted; it does not require that effect be given to that wish; (e) a motion fixing the trustee's remuneration passed in accordance with s 64U is a resolution for the purposes of s 162(1); (f) s 162(4) does not prevent the creditors from fixing the trustees' remuneration in relation to work to be undertaken thereafter in a sum or at a rate less than that which would otherwise flow from the application of the prescribed rate; the trustee's entitlement to a minimum level of remuneration is established by s 161B; and (g) it is therefore incorrect to state that a trustee is permitted to elect to be remunerated at the prescribed rate; entitlement to remuneration at the prescribed rate arises by operation of s 162(4) when work is done for which no remuneration is fixed. 51 Neither party contended that, as a consequence of Mr Pantzer's failure to comply with the requirements of s 64U(5), the first meeting of Dr Wenkart's creditors was a nullity. Dr Wenkart's argument was that the failure to comply with s 64U(5) rendered ineffective the resolutions of the creditors fixing Mr Pantzer's remuneration. He additionally submitted that the proper construction of s 64U(8) when read with s 162(1) is that it is not possible for creditors at their first meeting to approve any remuneration for work done by the trustee. 52 It seems to me that Dr Wenkart's argument that the failure to comply with s 64U(5) rendered the creditors' resolutions ineffective is inconsistent with the conclusions of the Full Court in Doolan v Dare as to the significance of s 64U. Their Honours took the view that s 162, and not s 64U, provides the mechanism for fixing the remuneration to be paid to trustees. I therefore conclude that Mr Pantzer's failure to comply with s 64U(5) did not affect the validity of the motions carried at the first meeting of Dr Wenkart's creditors concerning Mr Pantzer's remuneration nor the motions on the same topic carried at later meetings. 53 I also reject Dr Wenkart's submission as to the significance of s 64U(8) when read with s 162(1). Section 64U(8) requires the President of a meeting of creditors other than the first meeting of creditors to request the trustee to lay before the meeting a statement of the amount of remuneration drawn by him or her from the funds of the bankrupt estate. That is, it is concerned with the drawing of remuneration, not the approval of remuneration. Nothing in s 64U(8) or s 162(1) suggests that the legislature intended to prevent creditors at their first meeting fixing by resolution of the creditors the remuneration of the trustee for work done before, at or (subject to the issue of prospective approval referred to below) after that meeting. 55 The practice of creditors approving future remuneration of a trustee in bankruptcy by reference to time-charging at the recommended rates set out in the IPAA guidelines is well established (see, for example, Pattison v Bellin at [2]). No instance of any Judge expressing disapproval of the practice was drawn to my attention. In Doolan v Dare the Full Court referred to Finkelstein's consideration of the history of the "fixing" of fees of insolvency practitioners and observed at [19] that the provisions of the Corporations Act 2001 (Cth) with which his Honour was concerned differ substantially from the provisions of the Act concerning the remuneration of trustees. In the above circumstances I do not consider it appropriate for a single judge to determine that a practice apparently sanctioned by other judgments of the Court is inconsistent with the Act. Having placed reliance on the view expressed by Finkelstein J, Dr Wenkart will be free, if so advised, to press his argument in this regard before the Full Court.