Case: Wenkart v Pantzer [2007] FCA 1589
Outcome: cited
I have twice before published reasons for judgment in this matter; Wenkart v Pantzer [2007] FCA 1589 published on 16 October 2007 and Wenkart v Pantzer [2008] FCA 478 published on 11 April 2008. These reasons for judgment should be read together with my earlier reasons for judgment. 2 The history and subject matter of this proceeding is summarised in Wenkart v Pantzer [2007] FCA 1589 at [2] - [35] . As I noted in Wenkart v Pantzer [2008] FCA 478 at [1] - [8] , no agreement was reached between the parties as to the orders appropriate to be made to give effect to my reasons for judgment of 16 October 2007. Indeed, after hearing further from the parties, I accepted that I had not dealt with all outstanding issues between the parties. Those outstanding issues were dealt with in Wenkart v Pantzer [2008] FCA 478. When publishing those reasons for judgment I stood the proceeding over to a date to be fixed for the purpose of the making of orders giving effect to the reasons, including orders as to costs. 28 I discussed the above issue in the reasons for judgment of 11 April 2008 at [59]-[82]. As is there made plain, I am satisfied that Lindgren J made the orders dated 21 October 2003 in the terms that he did in the belief that certain advice given to him by Mr Pantzer's then counsel was accurate (see [80]-[81] of the reasons for judgment of 11 April 2008). Evidence tending to establish that the advice given to Lindgren J was inaccurate might provide a basis for the variation of the orders made by Lindgren J. In earlier reasons for judgment I have drawn attention to the importance in this proceeding of the effect of the orders made by Lindgren J and to the possibility of an application being made for those orders to be varied (see, for example, Wenkart v Pantzer [2007] FCA 1589 at [27] -28]). No such application has been made. Evidence of the kind that Mr Pantzer now seeks leave to adduce would not impact on the proper construction of the orders made by his Honour. The true meaning of the orders made by his Honour is to be determined by reference to the meaning that his Honour intended the orders to have. His Honour's intention can be ascertained by reference to the transcript of the hearing before him. 29 For the above reasons I do not consider it appropriate to withdraw and reconsider [56]-[91] of the reasons for judgment of 11 April 2008 or to give Mr Pantzer leave to re-open his case to tender further evidence. 30 The parties have not reached an agreement as to 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 from Dr Wenkart that resulted in the aggregate of such determinations exceeding the total amount received by Mr Pantzer as trustee of Dr Wenkart's estate. On the approach that I have considered, and continue to consider, it appropriate to adopt, before final orders can be made on Mr Pantzer's cross-claim it is necessary to know when, if at all, Mr Pantzer became entitled to enforce the charge over Dr Wenkart's Paddington property reflected in order 2 of the consent orders made by Beaumont J on 11 March 2002. It will therefore be ordered that a Registrar conduct an inquiry to determine that date. When that date has been identified it will be necessary for the parties to have the opportunity of making further submissions as to orders, including orders for costs, appropriate to be made on Mr Pantzer's cross-claim. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate: Dated: 16 September 2008 Counsel for the Applicant and First Cross-Respondent: Mr M Green Solicitor for the Applicant and First Cross-Respondent: Bruce Stewart Dimarco Counsel for the First Respondent and Cross-Claimant: Mr S Golledge Solicitor for the First Respondent and Cross-claimant: Bartier Perry Date of Hearing: 31 July 2008 Date of Judgment: 16 September 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1387.html