Case: Pattison v Bellin [2000] FCA 1167 ; (2000) 103 FCR 590
Outcome: cited
However, the motion carried at the meeting held on 29 March 2000 approving Mr Pantzer's remuneration and "that of his partners and staff" from 11 March 2000 to 28 March 2000 in the sum of $11,811.40 suggests that by 11 March 2000 Mr Pantzer's claimed remuneration from 13 December 1999 calculated on the approved basis had reached the limit of $80,000 fixed by the creditors at their first meeting. I therefore conclude that the approval of $11,811.40 for remuneration from 11 March 2000 to 28 March 2000 was an amount additional to the amounts approved at the first meeting of creditors. On the same basis I conclude that the motion fixing the further remuneration of Mr Pantzer from 29 March 2000 to a limit of $68,188.60 beyond which further approval would be required from creditors was intended, together with the approval in respect of $11,811.40, to constitute approval for additional remuneration in a further amount of $80,000. It might have been arguable that by this motion the creditors reserved to themselves the fixing of any further remuneration beyond that amount (cf the resolution of creditors considered by Goldberg J in Pattison v Bellin [2000] FCA 1167 ; (2000) 103 FCR 590 at [2] and [33]). It does not appear that it has ever been so argued. 32 I conclude that on the proper construction of the above resolution, the creditors purportedly approved Mr Pantzer's remuneration as follows: (a) $60,744.70 for the period from 28 October 10 December 1999; (b) $80,000 for future remuneration from 13 December 1999; (c) $11,811.40 for the period from 11 March 28 March 2000; (d) $68,188.60 for future remuneration from 29 March 2000; and (e) $105,000.00 in accordance with para (a)(I) of the s 73 proposal. These amounts are reflected in the first eleven payment items shown on Mr Pantzer's schedule (see [9] above). 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. 64 On 4 December 2001 Cutler Hughes &amp; Harris advised Hunt &amp; Hunt that Mr Pantzer's costs, expenses and remuneration were as follows: A. Trustee's remuneration These figures do not include any realisation and interest charges or GST payable that may become due or other possible liabilities such as insurance $183,875.11 B. Anticipated Trustee Costs and Expenses - to finalise all matters in the bankrupt estate in the event that all costs, expenses and remuneration are paid as at 30 November 2001 $8,600.00 C. Trustee's Legal Fees and Disbursements - as at 30 November 2001 $247,103.62 A. Total Further Anticipated Legal Fees and Disbursement - depending on terms of s73 proposal and date of acceptance. $3,000 to unknown $ Total costs of Administration - in the event that a s73 proposal goes ahead which excludes any dispute as to the trustee's entitlement for full remuneration and payment of his full costs and expenses as set out above $442,578.73 65 By a memorandum dated 8 January 2002 Hunt &amp; Hunt repeated their request to Cutler Hughes &amp; Harris for an itemised account of their costs. 66 By a letter dated 16 January 2002 Mr Pantzer advised Hunt &amp; Hunt: My solicitors did not state in their facsimile to you of 11 December 2001 that an itemised Bill of Costs had been provided by it to the creditors. My solicitor's statement was that the Trustee: '...will provide an itemised Bill of Costs (as provided by Cutler Hughes &amp; Harris) to the Creditors;...' I have been issued with legal Bills of Costs in relation to the estate for work up to November 2001. My solicitors are currently preparing Memoranda of Fees in relation to the work done since that date. The Bill of Costs which I have received, are of course, available for inspection by the creditors at any time. Please find enclosed copies of the bills with which [I] have already been issued. Upon receipt of the Bills of Costs from Cutler Hughes and Harris relating to work done from November 2001 I will provide you with those copies. ... Would you please confirm that your clients still require a taxation of those bills. In the event that your clients require taxation of the bills, would you please indicate: (a) Which creditor will provide me with the costs of making an application for taxation of the bills; and (b) Which creditor will undertake to provide payment of those costs or provide me with security for the payment of those costs by return letter. The evidence does not identify the copy bills apparently enclosed with the above letter.