Case: Wenkart v Pantzer (No 3) [2004] FCA 280 ; (2004) 135 FCR 422
Outcome: considered
In Wenkart v Pantzer (No 3) [2004] FCA 280 ; (2004) 135 FCR 422, being the name under which Wenkart v Pantzer (No 8) [2004] FCA 280 was reported, ( Wenkart v Pantzer (No 3) ) at [9]-[18] Lindgren J identified some of the litigation spawned by Dr Wenkart's bankruptcy, including the early history of this proceeding which concerns various disputes between Dr Wenkart and Mr Pantzer concerning Mr Pantzer's entitlements to remuneration, costs, charges and expenses. It will be necessary to refer below to some of the early history of this proceeding in more detail. However, I do not consider it necessary to set out the entire history of the matter. 3 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). 14 The circumstances in which the present proceeding was initiated were identified by Lindgren J in Wenkart v Pantzer (No 3) particularly at [18]-[19] and at [47]-[50]. As his Honour observed, the controversy in respect of which this proceeding was commenced concerned the amount of remuneration to which Mr Pantzer was entitled; whether he was obliged to call a meeting of creditors to consider a proposal under s 73 of the Act formulated by Dr Wenkart; and, if so, how, if at all, his entitlement to remuneration could or should be protected. The procedural steps taken were that on 15 February 2002 Dr Wenkart sent a letter and a number of attachments directly to the chambers of Beaumont J. The letter requested his Honour to order Mr Pantzer to convene a meeting of Dr Wenkart's creditors. His Honour directed that a new file be opened and, it seems, treated the documents received from Dr Wenkart as an initiating process. I interpolate that on 31 March 2004 Lindgren J directed that Dr Wenkart's letter and attachments be taken to be the application by which this proceeding was commenced, that it be taken to have been filed on 21 February 2002 and that, to the extent necessary, compliance with the Federal Court Rules be taken to have been dispensed with. 15 It is necessary to refer to a number of interlocutory orders made in this proceeding. Anticipating the creditors' possible acceptance of Dr Wenkart's proposal, Beaumont J on 11 March 2002 made the following orders by consent: "1. Warren Pantzer as Trustee of the estate of Thomas Richard Wenkart may recover his remuneration, costs, charges and expenses to which he is lawfully entitled or may become lawfully entitled from Thomas Richard Wenkart and Thomas Richard Wenkart agrees to pay the same within 28 days of determination of the quantum of the same or at such other time as the parties may agree. 2. Thomas Richard Wenkart forthwith charges the land and improvements in folio identifier G/33817 and known as 47 Union Street, Paddington in favour of Warren Pantzer to secure the amount in paragraph 1. 3. Hapday Holdings Pty Ltd ACN 001 185 253 hereby postpones mortgage 3965299 over the land in paragraph 2 in favour of the interest of Warren Pantzer pursuant to the charge in paragraph 2. 4. The orders and agreement in paragraphs 1, 2 and 3 are only to have effect if the bankruptcy of Thomas Richard Wenkart is annulled pursuant to s74 of the Bankruptcy Act on 15 March 2002. 5. Thomas Richard Wenkart consents to Warren Pantzer lodging a Caveat over the property in paragraph 2 for the purpose of securing the charge in paragraph 2 and Warren Pantzer will upon payment of the remuneration, costs, charges and expenses in paragraph 1 provide a Withdrawal of Caveat forthwith." 16 As noted above, the creditors accepted Dr Wenkart's proposal on 15 March 2002 and his bankruptcy was thereupon annulled. 17 On 31 October 2002 Mr Pantzer filed a notice of motion in this proceeding. Lindgren J later ordered that this notice of motion be taken to be a cross-claim seeking final relief and to the extent necessary compliance with the Federal Court Rules be taken to have been dispensed with. The cross-claim, as subsequently amended, claims the following substantive relief: "1. The Court make an order in aid of its order made 11 March 2002 by appointing Warren Pantzer as Trustee for Sale of folio identifier G/33817 known as 47 Union Street, Paddington, ('the property') pursuant to security granted on 11 March 2002 for the purpose of realising the property to enable payment to the First Respondent of items in paragraph 2 together with payment of any charge payable by the First Respondent pursuant to the Bankruptcy Realisation (Estate Charges) Act, 1997. 2. That the First Respondent be given power of sale of the property at auction or by private treaty and he be empowered to deduct from the proceeds of sale amounts to which he has been found in these proceedings to be lawfully entitled pursuant to the order made on 11 March 2002 in these proceedings:- (a) The First Respondent's remuneration of $98,095.16 plus interest. (b) Charges payable by the First Respondent under the Bankruptcy Realisation (Estate Charges) Act, 1997 together with any penalties or interest thereon. (c) Legal fees due to Cutler Hughes and Harris in the sum of $163,477.54 plus interest. (d) The First Respondent's remuneration costs, fees and expenses of finalising the bankrupt estate of the applicant and of determining these proceedings. (e) The commission and other expenses of any real estate agent employed by the Trustees. (f) The legal expenses of the trustee in respect of the sale. (g) The legal expenses of transferring the land to the purchaser. (h) The legal expenses of this Cross Claim. (i) The First Respondent's remuneration of acting on the sale. (j) Costs of Taxation of Anne Sexton in relation to Cutler Hughes and Harris Bill of Costs $16,061.75. (k) Costs of the First Respondent awarded by the Full Court in the Full Court appeal file N633 of 2003. (l) Interest on unpaid costs, remuneration and out of pocket expenses of the First Respondent from dates due for payment. (m) costs of High Court proceedings number S517 of 2003 (n) The balance to the Second Cross Respondent. 3. That the Applicant give the First Respondent as Trustee for Sale vacant possession of the property. 4. That a Writ of Possession of 47 Union Street, Paddington being folio identifier G/33817 issue 28 days after the date of this order." 18 On 12 December 2002 Dr Wenkart filed a notice of motion seeking orders including the following: "1 An order restraining the Respondent from selling or conveying the property at 47 Union Street Paddington being the whole of the land in Certificate of Title Folio Identifier G/33817 until further order of this Court. 2 A declaration that the Respondent is not lawfully entitled to claim any remuneration, costs, charges and expenses from the Applicant. 3 Further or in the alternative to paragraph 2 above, a declaration that the Respondent is not lawfully entitled to recover any remuneration, costs, charges and expenses prior to the annulment of the Applicant's bankruptcy pursuant to section 74 of the Bankruptcy Act on 15 March 2002 in excess of that which he was paid;" 22 On 21 October 2003 Lindgren J, in an apparent attempt to crystallise the amount of the remuneration, costs, charges and expenses to which Mr Pantzer was legally entitled (at least, as at that date) within the meaning of order 1 of the consent orders made by Beaumont J on 11 March 2003 (see [15] above), made the following orders: "1. In respect of services provided by any person with respect to the estate in bankruptcy of the applicant, whether those services were provided before or after annulment of the applicant's bankruptcy on 15 March 2002, the respondent by 22 October 2003 require such person to supply a Bill of Costs for such services pursuant to Section 167 of the Bankruptcy Act, 1966 (Cth) provided that this order does not extend to legal services provided by Cutler Hughes and Harris. 2. The respondent notify the applicant in writing by 23 October 2003 of his claim for remuneration in respect of services provided after the annulment of the applicant's bankruptcy on 12 March 2002." 23 At the time of the making of the above orders his Honour noted, amongst other things, that: "The applicant concedes that upon completion of taxation of the claims for costs and remuneration referred to in Orders 1 and 2, the amount taxed will be an amount within the following expression within Order 1 of the Orders made by Beaumont J on [11 March 2002] in this proceeding: 'remuneration, costs, charges and expenses to which [the respondent, Warren Pantzer, as trustee of the applicant, Thomas Richard Wenkart] is lawfully entitled or may become lawfully entitled from Thomas Richard Wenkart'." I interpolate that, by reason of the judgment of the Full Court concerning the taxation appeals, the claims for costs and remuneration the subject of the certificates of taxation considered in the taxation judgment at first instance must, it seems to me, be understood to fall within this concession made by Dr Wenkart. I do not accept Dr Wenkart's submission that, notwithstanding the outcome of the appeals to the Full Court from the taxation judgment at first instance, I am free to refuse to give effect to the certificates of taxation. 27 The effect of the orders made by Lindgren J on 21 October 2003 is one of the issues that remains to be resolved in this proceeding. In the taxation judgment at first instance I considered this issue and at [83] concluded that, unless and until varied, the orders imposed a restriction on the remuneration and the costs, charges and expenses that Mr Pantzer was entitled to recover from Dr Wenkart in reliance on orders 1 and 2 of the consent orders made by Beaumont J on 11 March 2002. 28 It remains the case that no application has been made for the orders made by Lindgren J on 21 October 2003 to be set aside or varied. For this reason, an important issue that requires to be determined in this proceeding is whether the Full Court took a different view from me as to the effect of his Honour's orders, and the consent orders made by Beaumont J, when it allowed the appeals from the taxation judgment at first instance. If it did it would be appropriate for me now to defer to the Full Court's view. I return to the question in [44] below. 29 On 31 March 2004 Lindgren J directed Mr Pantzer, as cross-claimant, to file and serve points of claim outlining his claim for final relief including quantification and Dr Wenkart, as cross-respondent, to file and serve points in reply. 30 On 1 October 2004, pursuant to leave granted by Lindgren J, Dr Wenkart filed a notice of motion seeking, relevantly, the following orders: "1. That the Respondent comply with Section 170 of the Bankruptcy Act 1966 and give an accounting for all monies received and for all monies expended in the former bankruptcy estate of the Applicant within seven (7) days of being ordered to do so. 2. That the respondent pay: a. The sum of $277,920.30 to the Applicant being the surplus moneys from the administration of the Applicant's estate in bankruptcy; and b. Such other amounts as disclosed by reason of the Respondent's compliance with Section 170 of the Bankruptcy Act 1966 . 3. That all previous Orders for costs in these proceedings be vacated ...." 31 Shortly thereafter this proceeding was transferred for administrative reasons from the docket of Lindgren J to my docket. On 14 October 2004 it was formally noted by consent on the Court's record that: "The parties have agreed that Justice Branson should continue with the hearing of the respondent's motion brought by notice of motion filed on 31 October 2002 [ie the cross-claim] and the applicant's motion brought by notice of motion filed on 12 December 2002 as if Justice Branson stood in the shoes of both Justice Beaumont and Justice Lindgren in all respects including the respect that all evidence given before their Honours should be taken to have been given before Justice Branson and Justice Branson should be part heard on the motion." 32 After raising the matter with the parties at a directions hearing, I determined that it would be appropriate to move as quickly as possible to a final hearing at which all outstanding issues, including those raised by the notices of motion filed on 12 December 2002 and 1 October 2004 respectively, would be dealt with. In the events that happened each of the taxation appeals was initiated before that hearing eventuated and the final hearing effectively encompassed them as well. 33 After the publication of the taxation judgment at first instance and the judgment of the Full Court allowing the appeals therefrom, but before Dr Wenkart's application for special leave to appeal to the High Court was dismissed, a further notice of motion was filed by Dr Wenkart. The principal order sought by that notice of motion, which was filed on 14 February 2007, was the following order: "Order that the First Respondent forthwith take all steps to withdraw any claim for or in relation to: (a) remuneration whether by reason of the asserted claim on 17 January 2007 (or otherwise) for the period after 21 October 2003; and (b) legal costs incurred after 21 October 2003 unless an order for such costs is made by the Federal Court pursuant to FCR Order 62, and the First Respondent has complied with the taxation of those costs in accordance with that Order." 34 The affidavit filed in support of the above notice of motion referred to a letter dated 17 January 2007 by which Mr Pantzer advised Dr Wenkart of a claim for remuneration and costs (excluding legal costs) from 22 October 2003 to 31 December 2006 in the amount of $159,192.82. The affidavit further referred to a letter dated 19 January 2007 by which Mr Pantzer advised Dr Wenkart that he had received invoices from his solicitor totalling $302,682.97 and that as no request for taxation had been made he requested payment of the invoices without delay. The affidavit made plain that Dr Wenkart took the view that Mr Pantzer's claims for remuneration and expenses were without foundation because: "(a) The bankruptcy ended in March 2002; (b) Lindgren J made orders in [this proceeding] on 21 October 2003 requiring [Mr Pantzer] to make a final claim for remuneration by 23 October 2003 and a final claim for expenses by 22 October 2003; (c) [Mr Pantzer] is not entitled to claim remuneration and expenses as a trustee in bankruptcy for post annulment work as if he was a trustee in bankruptcy; (d) There is no agreement with [Dr Wenkart] to reimburse [Mr Pantzer] for his post annulment remuneration (if any) or his post annulment expenses (if any); and (e) [Mr Pantzer's] claims are personal costs which have nothing to do with the administration of the former bankrupt estate of [Dr Wenkart] (which ended in March 2002)." When the above notice of motion came before me for directions, it was agreed that it did not require immediate hearing and determination but could be determined having regard to the final judgment in this proceeding that was then reserved. Objection was not taken that it was inappropriately filed in this proceeding. 35 Having regard to the matters outlined above, the following are the principal issues that require determination in this proceeding: (1) The extent, if any, to which Mr Pantzer is lawfully entitled to remuneration, and his costs, charges and expenses for work done after the annulment of Dr Wenkart's bankruptcy, and in particular the significance, if any, in this regard of the orders made by Lindgren J on 21 October 2003? (2) Whether Mr Pantzer's legal costs after 21 October 2003 to the completion of the administration of Dr Wenkart's bankrupt estate are to be taxed on a solicitor/client basis? (3) Whether Mr Pantzer is lawfully entitled to recover from Dr Wenkart the sum of $20,000 owing pursuant to the Bankruptcy (Estate Charges) Act 1997 (Cth)? (4) Whether Mr Pantzer is required to give an accounting concerning the property and affairs of Dr Wenkart in compliance with s 170 of the Act and to pay to Dr Wenkart surplus moneys (if any) from the administration of his bankrupt estate? (5) What are the amounts, if any, to which Mr Pantzer has established that he is "lawfully entitled"? (6) Whether orders should be made to facilitate the enforcement, either immediately or deferred, in respect of the security provided by the consent orders made on 11 March 2002? 36 Dr Wenkart has contended in this and other proceedings that Mr Pantzer, as trustee of the bankrupt estate of Dr Wenkart, cannot claim any entitlement to remuneration, costs, charges or expenses under the Act in respect of any steps taken after the annulment of Wenkart's bankruptcy. I rejected that contention in the taxation judgment at first instance at [40]-[47]. The Full Court on the appeal from the taxation judgment at first instance accepted that Mr Pantzer was entitled to claim under the Act remuneration, costs, charges and expense referable to work reasonably and bona fide undertaken after the annulment of the bankruptcy for the purpose of administering the estate or performing any public duty imposed by the Act (at [43]). 37 It is no longer open to Dr Wenkart to argue in this Court that Mr Pantzer cannot claim any entitlement as the trustee of Dr Wenkart's bankrupt estate beyond 15 March 2002, the date of the annulment of Dr Wenkart's bankruptcy. 38 Dr Wenkart contended, in the alternative, that Lindgren J, by the orders made on 21 October 2003, required Mr Pantzer to make his claim for remuneration, costs, charges and expenses "once and for all". Consequently, he argued, the agreement to pay recorded in order 1 of the orders made by consent by Beaumont J on 11 March 2002 (see [15] above), and the concession noted by Lindgren J on 21 October 2003 (see [22] above), are limited to bills of costs and claims for remuneration properly made earlier than 21 October 2003 or pursuant to the order made on that day. 39 As mentioned above, I gave consideration in the taxation judgment at first instance to the issue of whether, and to what extent, the orders made by Lindgren J on 21 October 2003 limited the amount Mr Pantzer could claim as remuneration, costs, charges and expenses to which he is lawfully entitled within the meaning of the consent orders made on 11 March 2002. At [82]-[84] I observed: "Order 1 of these orders placed Mr Pantzer under an obligation by 22 October 2003 to require 'any person' (other than the firm Cutler Hughes and Harris) who had provided services with respect to the estate in bankruptcy of Dr Wenkart to supply a bill of costs for those services pursuant to s 167 of the Act. Order 2 required Mr Pantzer by 23 October 2003 to notify Dr Wenkart of his claim for remuneration in respect of work undertaken by him after the date of the annulment of Dr Wenkart's bankruptcy. It appears that as at 21 October 2003 there was no issue between the parties as to Mr Pantzer's claim for remuneration in respect of work undertaken by him on or before the date of the annulment of Dr Wenkart's bankruptcy. I conclude that, no application having been made for the orders made by Lindgren J on 21 October 2003 to be varied or set aside, Mr Pantzer's entitlement to recover remuneration, costs, charges and expenses from Dr Wenkart, and if necessary to enforce the charge against the land and improvements known as 47 Union Street, Paddington, is an entitlement to recover: (a) remuneration which satisfies both of the following requirements: (i) it is remuneration to which Mr Pantzer is lawfully entitled in respect of work properly undertaken by him in carrying out his duties under the Act after the date of the annulment of Dr Wenkart's bankruptcy; and (ii) it is remuneration covered by a claim of which Mr Pantzer notified Dr Wenkart by 23 October 2003; and (b) the amounts for which bills of costs supplied pursuant to requirements made by Mr Pantzer on or before 22 October 2003 by persons who had provided services with respect to Dr Wenkart's estate have been taxed by a taxing officer; and (c) the amount for which the bill of costs of the firm Cutler Hughes and Harris was taxed. I do not understand that the firm Cutler Hughes and Harris has provided to Mr Pantzer a bill of costs dated later than the bill considered by Beaumont J in Wenkart v Pantzer (2003) FCA 471." 40 On appeal from the taxation judgment at first instance the Full Court noted at [27]-[28] that my views on the question whether the effect of the orders made by Lindgren J on 21 October 2003 was to limit the amounts that Mr Pantzer may claim in reliance on order 1 of the consent orders made by Beaumont J on 11 March 2002 were contentious. However, presumably because it was unnecessary for it to do so, the Full Court made no further reference to my views on this question or, indeed, to the orders made by Lindgren J on 21 October 2003. 41 Nonetheless, the Full Court at [43]-[44] observed: "In the present matter however, the litigation in which Mr Pantzer became involved after Dr Wenkart's bankruptcy had been annulled was to defend, successfully, in the face of sustained opposition from Dr Wenkart, the remuneration, costs, charges and expenses he had claimed at the time of the annulment. From Mr Pantzer's viewpoint, such a course was unavoidable, in a practical sense, if he was to maintain and realise his entitlements. It was in his capacity as a former trustee that Mr Pantzer was drawn into the litigation to assert a right to be paid a claimed amount which Dr Wenkart had not challenged by seeking taxation in the way provided for by the Regulations, and to exercise an implied right of sale arising from the consent orders and the failure of Dr Wenkart to comply with them. It is true, in a sense, that the litigation was undertaken by Mr Pantzer for his benefit, as the primary judge observed. In the same sense, any litigation into which a trustee might be drawn concerning remuneration, disbursements and expenses is litigation for the trustee's benefit. But to characterise it this way does not necessarily answer the question whether the trustee (or former trustee) has been properly involved in the litigation as an incident of having acted as a trustee charged with the responsibility of administering the bankrupt's estate. In our view, the facts in the present case compel the conclusion that the remuneration, costs, charges and expenses incurred after the annulment of the bankruptcy were so incurred for the purpose of giving practical effect to the 11 March 2002 consent orders and, more generally, administering the estate. Consequently, Mr Pantzer was 'lawfully entitled' to them within the terms of the consent orders." 42 Having regard to the above observations of the Full Court, I do not consider that I am free to accept Dr Wenkart's submission that the effect of the reasoning of the earlier Full Court set out in [21] above is that Division 2 of Part VIII of the Act applies post-annulment but only to the computation of pre-annulment claims. It seems to me that the Full Court has made clear that a trustee, or former trustee, is entitled to recover remuneration, costs, charges and expenses under the Act wherever he or she "has been properly involved in the litigation as an incident of having acted as a trustee charged with the responsibility of administering the bankrupt's estate" . Their Honours also observed that the remuneration, costs, charges and expenses "incurred after the annulment of the bankruptcy" were incurred for the purpose of giving practical effect to the 11 March 2002 consent orders and, more generally, administering the estate with the consequence that Mr Pantzer was "lawfully entitled" to them within the meaning of the consent orders. 43 I therefore proceed on the basis that amounts claimed by Mr Pantzer as remuneration, costs, charges and expenses incurred by him for the purpose of giving practical effect to the 11 March 2002 consent orders and, more generally, administering Dr Wenkart's bankrupt estate are amounts to which Mr Pantzer is prima facie "lawfully entitled" within the meaning of order 1 of the consent orders made on 11 March 2002. I also proceed on the basis that, subject to any relevant impact of the orders made by Lindgren J on 21 October 2003, the agreement to pay reflected in order 1 of the 11 March 2002 consent orders, and therefore the agreement to charge reflected in order 2 of those orders, extends to those amounts. 44 I next turn to the issue of the proper construction of the orders made by Lindgren J on 21 October 2003. The reasons for judgment of the Full Court make plain that, as at 21 October 2003, the possibility existed of Mr Pantzer becoming "lawfully entitled" to amounts by way of remuneration, costs, charges an expenses in respect of services not yet provided notwithstanding that Dr Wenkart's bankruptcy had been annulled nineteen months earlier. Although Lindgren J may not have turned his mind to this possibility when he made the orders (see [79] below), nothing in the language of the orders suggests that they were intended to deprive Mr Pantzer of any amounts to which he might thereafter become lawfully entitled. Nonetheless, the orders were plainly intended to have some effect; they required Mr Pantzer to take certain steps and some significance must have been intended to attend any failure by him to take those steps. Having regard to the reasons for judgment of the Full Court, I conclude that the orders required Mr Pantzer to take those steps in relation to services that had, as at that date, been provided by any person in respect of the bankrupt estate of Dr Wenkart and in relation to his claim for remuneration as at that date (ie in respect of his present, but unclaimed, entitlements). Were it established that Mr Pantzer failed to comply with the orders in respect of any services that had been provided as at 21 October 2003, or in respect of a claim for remuneration for work undertaken as at that date, Mr Pantzer would not, I conclude, be entitled to recover any amount in respect of those services or that claim for remuneration in reliance on orders 1 and 2 of the consent orders made on 11 March 2002. This, I conclude, is the full extent of the ongoing significance of the orders made by Lindgren J on 21 October 2003 so far as Mr Pantzer's entitlements to remuneration, costs, charges and expenses are concerned. 45 The question of Mr Pantzer's entitlement to recover his legal costs after 21 October 2003 raises two principal issues: (1) the significance of the orders made by Lindgren J on 21 October 2003; and (2) the significance of the orders obtained by Mr Pantzer in proceedings in this Court requiring Dr Wenkart to pay his legal costs of those proceedings. 46 My conclusion as to the significance of the orders made by Lindgren J on 21 October 2003 is set out in [44] above. 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. 78 In this proceeding I stand in the shoes of Lindgren J (see [31] above). Wenkart v Pantzer (No 3) is an interlocutory judgment in this proceeding in which Lindgren J dismissed Dr Wenkart's objection to the Court's jurisdiction to hear and determine the motions brought by the notice of motion filed by Mr Pantzer on 31 October 2002. 79 His Honour's reasons for judgment in Wenkart v Pantzer (No 3) at [41] suggest that his Honour proceeded on the basis that the amount of the remuneration to which Mr Pantzer was or might become "lawfully entitled" from Dr Wenkart within the meaning of order 1 of the consent orders made by Beaumont J on 11 March 2002 had by then been finally determined. His Honour observed: "The amount of the remuneration to which Mr Pantzer is entitled as trustee until the annulment on 15 March 2002 has now long since been quantified at 85 per cent of $115,406.07, ie, $98,095.16 (see s 162(4) of the Act and reg 8.08 of the Regulations). It appears that the only issue now remaining to be decided (apart from the present jurisdictional question) is whether the Court should make the 'orders in aid' sought in Mr Pantzer's notice of motion filed on 31 October 2002." 80 However, the reasons for judgment of the Full Court on appeal from the taxation judgment at first instance disclose that, if his Honour did proceed on that basis, he was in error. Those reasons for judgment reveal that the precise aggregate amount to which Mr Pantzer may become "lawfully entitled" within the meanings of order 1 of the consent orders of 11 March 2002 cannot be determined until "practical effect" has been given to the consent orders. This is because the Full Court has held that Mr Pantzer is entitled to remuneration as trustee in bankruptcy (ie profit remuneration in respect of his own time, not just to his proper legal and other costs) in respect of steps taken by him "for the purpose of giving practical effect to the 11 March 2002 consent orders" (see [43] above). 83 In Wenkart v Pantzer (No 3) at [66] Lindgren J noted that Mr Pantzer's claim to enforce the charge referred to in order 2 of the consent orders made on 11 March 2002 is a claim to enforce proprietary rights springing out of a contract. After referring to s 22 of the Federal Court of Australia Act 1976 (Cth) and s 79 of the Judiciary Act 1903 (Cth) his Honour at [101]-[103] observed: "Under the law of the State of New South Wales, a charge of the kind given by Dr Wenkart to Mr Pantzer is an equitable charge enforceable in the equitable jurisdiction of the Supreme Court of New South Wales by the appointment of a trustee for sale on the application of the chargee: Tennant v Trenchard (1869) LR 4 Ch App 537; and cf Fine Real Estate Network Pty Ltd v Howell (unreported, Supreme Court of NSW, 4767 of 1994, Young J, 4 December 1997). In my opinion, the law providing for the enforcement of an equitable charge by the appointment of a trustee for sale is a law relating to procedure within s 79 of the Judiciary Act . This Court was created as a 'court of law and equity': FCA Act, s 5(2). It has power to appoint a trustee for sale of the Property. The claim to enforce the charge was 'properly brought forward' by Mr Pantzer for the purposes of s 22 of the FCA Act, in a matter in respect of which the Court had jurisdiction under s 39B(1A)(c) of the Judiciary Act . Enforcing the charge by the appointment of a trustee for sale falls within s 22 of the FCA Act and s 79 of the Judiciary Act ." 84 Dr Wenkart argued, nonetheless, that because Mr Pantzer had issued a notice purportedly issued under s 111 of the Conveyancing Act 1919 (NSW) he was bound to proceed on the basis that Part 7 of Division 3 of that Act applied in respect of the charge recognised by order 2 of the consent orders. I reject this argument. Section 111 of the Conveyancing Act applies in the case of a mortgage or charge registered under the Real Property Act 1900 (NSW). No misapprehension on the part of Mr Pantzer, or his legal advisers, in this regard can change the character of order 2. Order 2 has not given rise to a charge registered under the Real Property Act . Mr Pantzer's rights under the consent orders are rights in personam against Dr Wenkart. 85 Dr Wenkart also placed reliance on Mr Pantzer's failure to serve the notice purportedly issued under s 111 on Hapday Holdings Pty Ltd, which holds a registered mortgage over the land the subject of the charge, or on the occupier of the premises on the land. For the reasons already given this reliance was misplaced.