Case: Wenkart v Pantzer [2003] FCAFC 210 ; (2003) 132 FCR 204
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). 21 On the same day his Honour ordered that the above question be answered in the affirmative. I interpolate that in Wenkart v Pantzer [2003] FCAFC 210 ; (2003) 132 FCR 204 published on 29 August 2003 the Full Court, on appeal from his Honour's order, noted at [8] that Division 2 of Part VIII of the Act (comprising ss 161B-167) deals generally with the remuneration and costs which may be charged against a bankrupt's estate. Their Honours observed: "The sections operate by force of the Bankruptcy Act and not because of any agreement between the parties or order of the court. Moreover, lest there be any doubt about the matter, we wish to make it clear that these provisions have effect notwithstanding the annulment of the bankruptcy. It could hardly be supposed that a trustee's right to remuneration, the manner in which that remuneration is to be determined and the trustee's right to require a third party's bill of costs to be taxed is lost upon an annulment." 48 The Full Court in Wenkart v Pantzer (No 2) , Beaumont J in Wenkart v Pantzer [2003] FCA 315 and Lindgren J in Wenkart v Pantzer (No 6) [2003] FCA 1210 and Wenkart v Pantzer (No 3) made costs orders against Dr Wenkart in apparent reliance on s 43 of the Federal Court of Australia Act 1976 (Cth) (Federal Court of Australia Act) and O 62 of the Federal Court Rules . Having regard to the observation of the Full Court in Wenkart v Pantzer [2003] FCAFC 210 ; (2003) 132 FCR 204 set out in [21] above, it seems plain that it was open to Mr Pantzer in each instance to seek an order that his costs be paid in accordance with the Act. Yet in none of these cases does it appear that Mr Pantzer sought an order that his costs be payable under the Act or otherwise treated as costs in Dr Wenkart's bankruptcy. 64 Mr Pantzer's entitlement to remuneration up to 15 March 2002 in the sum of $98,095.16 has been the subject of litigation in other proceedings. Importantly this claim was considered by the Full Court in Wenkart v Pantzer [2003] FCAFC 210 ; (2003) 132 FCR 204. At [15] their Honours noted that at a creditors' meeting on 15 March 2002, at which Dr Wenkart was present, a document was tendered which set out Mr Pantzer's claim for outstanding remuneration as at 15 March 2002 in the sum of $115,406.07. A resolution that his remuneration be approved in that sum was not carried and Mr Pantzer's representative said 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 " . The Full Court at [16] disagreed with the conclusion of the primary judge that Dr Wenkart was not thereby notified of the amount of Mr Pantzer's claim for remuneration within the meaning of reg 8.09(1) of the Bankruptcy Regulations 1996 . 65 Regulation 8.09(1) provides as follows: "Where the trustee of the estate of a bankrupt claims remuneration under section 162 of the Act, the bankrupt or a creditor who is dissatisfied with the amount of the claim may, by notice in writing lodged within 28 days of being notified in writing or becoming aware of the amount of the claim, request a taxing officer to tax the claim."